The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone

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T H E U N I N T E R N AT I O N A L CRIMINAL TRIBUNALS

This book is a guide to the law that applies in the three international criminal tribunals, for the former Yugoslavia, Rwanda and Sierra Leone, set up by the United Nations during the period 1993 to 2002 to deal with atrocities and human rights abuses committed during conflict in those countries. Building on the work of an earlier generation of war crimes courts established in the aftermath of the Second World War, the three tribunals have developed a sophisticated body of law concerning the elements of the three international crimes (genocide, crimes against humanity and war crimes), forms of participation in such crimes as well as other general principles of international criminal law, procedural matters and sentencing. The legacy of the tribunals will be indispensable as international law moves into a more advanced stage, with the creation of the International Criminal Court. The book provides a comprehensive overview of the law of the tribunals, relying on their judicial decisions as well as the drafting history of their statutes and other contemporary sources. While there is a wealth of periodical literature on specific aspects of the activities of these tribunals, this is the first comprehensive book to be published in more than a decade. W I L L I A M A . S C H A B A S O C is Professor of Human Rights Law at the National University of Ireland, Galway, and Director of the Irish Centre for Human Rights. His numerous publications include Genocide in International Law (Cambridge University Press, 2000), The Abolition of the Death Penalty in International Law (Cambridge University Press, 3rd edition 2002), and An Introduction to the International Criminal Court (Cambridge University Press, 2nd edition 2004).

T H E U N I N T E R NAT I O NA L C R I M I NA L T R I B U NA L S : The Former Yugoslavia, Rwanda and Sierra Leone

WILLIAM A. SCHABAS

   Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521846578 © William Schabas 2006 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2006 - -

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To Marguerite and Louisa

CONTENTS

Preface

page ix

Table of cases

x

Table of legislative prov isions List of abbreviations

PA R T I

xlvi

liv

Establishment of the tribunals

1

1

Creation of the tribunals

2

The legitimacy and legality of the tribunals

3

Sources of law

PA R T I I

Jurisdiction

3 47

74

121

4

Territorial, personal and temporal jurisdiction

5

Subject-matter jurisdiction generally

6

Genocide

7

Crimes against humanity

8

War crimes

PA R T I I I

9

123

151

161 185

226

Substantive and procedural aspects of prosecution General principles of law

289

10

Investigation and pre-trial procedure

11

Trial and post-trial procedure

12

Evidence

452 vii

410

348

287

viii

CONTENTS

13

Rights of the accused

14

Punishment

PA R T I V

15

501

545

Organisation of the tribunals

585

Structure and administration of the tribunals

Bibliography Index

624 678

587

PREFACE

The International Criminal Tribunal for the former Yugoslavia came into being in late 1993, launching a process whose scope was unimaginable at the time. There are now three United Nations international criminal tribunals – the subject of this book – as well as various hybrid institutions, and the International Criminal Court. The literature in this field has grown exponentially, as has our knowledge of the complexities of the subject. With the three ad hoc tribunals organising their activities so as to complete their work by the end of the decade, this seemed a good point to attempt a stocktaking. Hopefully, the lessons and observations are of more than academic interest, and will help guide the International Criminal Court as it develops its own judicial personality. The book is longer than I had initially planned, and yet painfully incomplete at the same time. It is meant as a complement to the enormous periodical literature on the subject, rather than as a replacement. Since the project began, I have been greatly helped by my research assistants at the Irish Centre for Human Rights, Shane Darcy and Edel Hughes. Several other law students also provided important assistance at various stages of the work, including Lynsay Gott, Lauren L. Gray, Yotam Ben Meir, Victoria Murphy, Kate M. Riggs and Stephanie Tyree. Colleagues were kind enough to take time to read portions of the manuscript, and to make suggestions and corrections, and I am very grateful to them: Diane Amann, Luc Coˆte´, Megan Fairlie, Larry Johnson and Ola Olusanya. My institution, the National University of Ireland, Galway, and my colleagues at the Irish Centre for Human Rights, have provided me with the time, resources and conducive work environment to pursue such academic research. I thank all of them. Finola O’Sullivan at Cambridge University Press has been, as always, full of encouragement as well as bits of fine advice when they are most needed. Finally, without the support and encouragement of my wife, Penelope Soteriou, this book would not have been possible.

ix

TABLE OF CASES

Akayesu (ICTR-96-4-T), Decision on the Defence Motion Requesting an Inspection of the Site and the Conduct of a Forensic Analysis, 17 February 1998, 590 Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, 25, 45, 81, 106, 109, 138, 164, 168, 172, 173, 174, 175, 177, 178, 182, 190, 191, 192, 206, 207, 209, 212, 214, 222, 223, 229, 230, 237, 239, 265, 268, 275, 278, 293, 298, 300, 301, 302, 304, 305, 306, 307, 308, 319, 322, 323, 342, 360, 372, 385, 444–445, 453, 454, 455, 485, 497, 536 Akayesu (ICTR-96-4-S), Sentencing Judgment, 2 October 1998, 299, 575 Akayesu (ICTR-96-4-T), Sentencing Judgment, 2 October 1998, 162, 561, 568 Akayesu (ICTR-96-4-A), Decision Relating to the Assignment of Counsel, 27 July 1999, 91, 526, 618 Akayesu (ICTR-96-4-A), Ordonnance (Requeˆte aux fins de traduction des me´moires de l’Appelant), 29 March 2001, 591 Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, 45, 78, 194, 197, 236, 239, 299, 300, 372, 479, 511, 512, 525, 526

A, B, C, D, E, F, G, H, Mahmoud Abu Rideh, Jamal Ajouaou v. Secretary of State for the Home Department, C2/ 2003/2796 (CA) (Civil Div.), 11 August 2004, 46 Ademi (IT-01-46-PT), Orders on Motions for Provisional Release, 20 February 2002, 393 Ademi (IT-04-78-PT), Request by the Prosecutor Under Rule 11 bis, 2 September 2004, 407, 409 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, 260 In Re Agent Orange Products Liability Litigation, [2005] WL 729177 (ED NY), 45 Akayesu (ICTR-96-4), 34, 150, 168, 172, 174–175, 177, 181, 192, 206, 211, 212, 223, 238, 278, 300, 304, 307, 308, 360, 372, 402, 446, 453, 454–455, 484, 511, 622 Akayesu (ICTR-96-4-T), Decision on the Request of the Accused for the Replacement of Assigned Counsel, 20 November 1996, 527 Akayesu (ICTR-96-4-T), Decision by the Tribunal on its Request to the Prosecutor to Submit the Written Witness Statements, 28 January 1997, 402

x

TA B L E O F C A S E S

Al-Adsani v. United Kingdom (App. No. 35763/97), Judgment, 21 November 2001, [2002] 34 EHRR 11, 46 Aleksovski (IT-95-14/1), 84, 108, 240, 271, 272, 448, 449, 536, 564 Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, 88, 456, 459, 479, 514 Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 February 1999, 454, 462, 482 Aleksovski (IT-95-14/1-A), Opinion dissidente du Juge Rodrigues, Pre´sident de la Chambre de priemie‘re instance, 25 June 1999, 142, 242 Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, 272, 303, 305, 321 Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, 65, 78, 81, 93, 240, 244, 248, 307, 316, 438, 441, 449, 456, 484, 534, 537, 556, 557, 558, 563, 564, 565 Aleksovski (IT-98-32-T), Judgment, 29 November 2002, 304 Allenet de Ribemont v. France, Series A, No. 308, 10 February 1995, 519 A P v. Italy (No. 204/1986), UN Doc. CCPR/C/31/D/204/1986, 2 November 1987, 127 Babic´ (IT-03-72-S), Sentencing Judgment, 29 June 2004, 427, 558, 560, 568, 572, 573, 574 Bagambiki et al. (ICTR-97-36-I), Decision on the Defence Motion on Defects in the Form of the Indictment, 24 September 1998, 108, 360

xi

Bagambiki et al. (ICTR-97-36-I), Decision on the Defence Motion for the Separation of Crimes and Trails, 30 September 1998, 360 Bagambiki et al. (ICTR-99-46-0550), Decision on the Defence Motion for the Transfer of a Detained Witness from Rwanda, Rule 90 bis, 17 February 2003, 470 Bagilishema (ICTR-95-1A), 433, 543, 590 Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, 81, 169, 173, 175, 190, 192, 194, 197, 198, 200, 230, 236, 237, 238, 268, 278, 293, 298, 299, 303, 304, 305, 307, 319, 320, 321, 322, 336, 385, 499, 575, 590 Bagilishema (ICTR-95-1A-A), Judgment, 3 July 2002, 319, 441, 451, 479 Bagilishema (ICTR-95-1A-A), Decision on the Defence’s Motion to have the Prosecutor’s Notice of Appeal Declared Inadmissible, 26 October 2002, 443 Bagosora (ICTR-98-41), 415 Bagosora (ICTR-96-7-T), Decision on the Request by the Accused for Change of Assigned Counsel, 26 June 1997, 527 Bagosora (ICTR-96-7-T), Decision on the Amicus Curiae Application by the Government of the Kingdom of Belgium, 6 June 1998, 411, 619, 620 Bagosora (ICTR-96-7-T), Decision on the Defence Motion for Pre-determination of Rules of Evidence, 8 July 1998, 86, 461 Bagosora (ICTR-96-7), Decision on the Prosecutor’s Motion for Joinder, 29 June 2000, 368, 369

xii

TA B L E O F C A S E S

Bagosora (ICTR-98-41-I), Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, 5 January 2002, 227, 402 Bagosora (ICTR-98-41-I), Decision on Prosecutor’s Motion for Deposition of Witness OW, 5 January 2002, 476 Bagosora (ICTR-98-41-T), Decision on the Defence Motion for Release, 12 July 2002, 391, 574 Bagosora (ICTR-98-41-T), Decision on the Defence for Bagosora’s Motion for Postponement or Quashing of the Testimonies of Witnesses Ruggiu, XAM and ZF, 30 September 2002, 403 Bagosora (ICTR-98-41-T), Order for the Transfer of Detained Prosecution Witness Omar Serushago, 2 October 2002, 470 Bagosora (ICTR-98-41-T), Decision on Continuation or Commencement de novo of Trial, 11 June 2003, 416 Bagosora (ICTR-98-41-T), Decision on Amicus Curiae Request by African Concern, 23 March 2004, 620 Bagosora (ICTR-98-41-T), Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda, 29 September 2004, 590 Bagosora (ICTR-98-41-T), Decision on Prosecution Request for Testimony of Witness BT Via Video-Link, 8 October 2004, 475 Bagosora (ICTR-98-41-T), Decision on Amicus Curiae Request by the Rwandan Government, 13 October 2004, 149, 620

Bagosora (ICTR-98-41-T), Decision on Testimony by Video-conference, 20 December 2004, 475 Bagosora (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal, 2 February 2005, 182, 224, 431 Bagosora (ICTR-98-41-T), Decision on Ntabakuse Motion to Allow Witness DK 52 to Give Testimony by Video-Conference, 22 February 2005, 475 Bagosora et al. (ICTR-98-37), 124 Bagosora et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste Bagasora and 28 Others, 8 June 1998, 78, 80, 87, 89, 364, 514 Banovic´ (IT-02-65/1-S), Sentencing Judgment, 28 October 2003, 331, 574 Barayagwiza (ICTR-97-19), 14, 89, 182, 300, 379, 381, 421, 505, 538, 540, 543 Barayagwiza (ICTR-97-19-I), Decision on the Extremely Urgent Motion by the Defence for Orders to Review and/or Nullify the Arrest and Provisional Detention of the Suspect, 17 November 1998, 87, 377 Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999, 97, 378, 379, 505, 519, 539, 540 Barayagwiza (ICTR-97-19-AR72), Order, 8 December 1999, 411 Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, 75, 89, 450, 504, 538, 540, 620

TA B L E O F C A S E S

Barayagwiza (ICTR-97-19-AR72), Declaration of Judge Rafael Nieto-Navia, 31 March 2000, 106 Barayagwiza (ICTR-97-19-I), Decision on the Request of the Defence for Severance and Separate Trial, 26 September 2000, 371 Barayagwiza (ICTR-97-15-T), Decision on Defence Counsel Motion to Withdraw, 2 November 2000, 421 Barbera` v. Spain, (1988) 11 EHRR 360, 513, 517 Barbie case (Fe´de´ration nationale des de´porte´s et interne´s re´sistants et patriotes et al. v. Barbie, (1984) 78 ILR 125), 44 Barcelona Traction case, 438 Bell v. Wolfish, 441 US 520 (1979), 518 Bizimungu (ICTR-99-50-AR50), Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004, 312, 373 Bizimungu (ICTR-99-50-T), Oral Decision on Qualification of Prosecution Expert Jean Rubaduka, 24 March 2004, 498 Bizimungu (ICTR-99-50-AR73.3 and AR73.4), Decision on Mugiraneza Interlocutory Appeal Against Decision of the Trial Chamber on Exclusion of Evidence, 15 July 2004, 448 Bizimungu (ICTR-99-50-T), Decision on Prosper Mugiraneza’s Application for a Hearing or Other Relief on his Motion for Dismissal for Violation of his Right to a Trial Without Undue Delay, 3 November 2004, 523

xiii

Bizimungu (ICTR-99-50-T), Decision on Prosper Mugiraneza’s First Motion for Judicial Notice Pursuant to Rule 94(B), 10 December 2004, 489, 492 Bizimungu (ICTR-99-50-T), Decision on Je´roeˆme-Cle´ment Bicumumpaka’s Motion for Judicial Notice of a Rwandan Judgment of 8 December 2000 and in the Alternative for an Order to Disclose Exculpatory Evidence, 15 December 2004, 492 Bizimungu (ICTR-99-50-T), Oral Decision on Qualification of Prosecution Expert Jean Rubaduka, 24 March 2005, 482 Blagojevic´ et al. (IT-02-60), 166, 167, 176, 305, 590, 601 Blagojevic´ et al. (IT-02-53-AR65), Decision on Application by Dragan Jokic´ for Leave to Appeal, 18 April 2002, 392, 395 Blagojevic´ et al. (IT-02-60-PT), Decisions on Vidoje Blagojevic´’s and Dragan Obrenovic´’s Applications for Provisional Release, 22 July 2002, 392 Blagojevic´ et al. (IT-02-60-T), Joint Decision on Motions Related to Production of Evidence, 12 December 2002, 601 Blagojevic´ et al. (IT-02-60-AR73/AR73.2/ AR73.3), Decision, 8 April 2003, 88, 403 Blagojevic´ et al. (IT-02-60-T), Decision on Vidoje Blagojevic´’s Expedited Motion to Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused Nikolic´ and Request for an Expedited Open Session Hearing, 13 June 2003, 495, 504

xiv

TA B L E O F C A S E S

Blagojevic´ et al. (IT-02-60-AR73.4), Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic´ to Replace his Defence Team, 7 November 2003, 115 Blagojevic´ et al. (IT-02-60-T), Decision on Prosecution’s Motions for Admission of Expert Statement, 7 November 2003, 481 Blagojevic´ et al. (IT-02-60-T), Decision on Prosecution’s Motion for Leave to File Fourth Amended Joinder Indictment, 10 June 2004, 373 Blagojevic´ et al. (IT-02-60-T) Judgment, 17 January 2005, 136, 163, 174, 176, 200, 201, 204, 218, 220, 221, 222, 224, 304, 305, 307, 343, 347, 383, 416, 492 Blasˇkic´ (IT-95-14), 29, 93, 114, 190, 195, 199, 220, 257, 263, 283, 294, 323, 345, 346, 347, 380, 385, 391, 401, 413, 419, 429, 468, 484, 486, 487, 488, 563, 568 Blasˇkic´ (IT-95-14-IT), Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, 3 April 1996, 391, 392 Blasˇkic´ (IT-95-14-PT), Decision, 14 October 1996, 92–93, 443 Blasˇkic´ (IT-95-14-T), Decision on Motion of the Defence Seeking Modification of the Conditions of Detention of General Blasˇkic´, 9 January 1997, 517 Blasˇkic´ (IT-95-14), Decision on the Production of Discovery Materials, 27 January 1997, 398, 400 Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, 58, 81, 92, 93, 97,

98, 113, 114, 115, 411, 420, 429, 450, 468, 486 Blasˇkic´ (IT-95-14-T), Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability, 26 January 1998, 455 Blasˇkic´ (IT-95-14-T), Order, 30 January 1998, 488 Blasˇkic´ (IT-95-14-T), Decision on the Prosecutor and Defence Motions to Proceed by Deposition, 19 February 1998, 476 Blasˇkic´ (IT-95-14-T), Order, 29 April 1998, 488 Blasˇkic´ (IT-95-14-T), Decision of Trial Chamber I on the Defence Motion to Dismiss, 3 September 1998, 81 Blasˇkic´ (IT-95-14-T), Decision on the Defence Motion for Sanctions for the Prosecutor’s Continuing Violation of Rule 68, 28 September 1998, 400 Blasˇkic´ (IT-95-14-T), Decision to Order the Witness Slavko Marin to Appear Before Trial Chamber I, 15 October 1998, 469 Blasˇkic´ (IT-95-14-T), Order for a Witness to Appear, 5 November 1998, 488 Blasˇkic´ (IT-95-14-T), Decision of Trial Chamber I in respect of the Appearance of Colonel Robert Stewart, etc., 25 March 1999, 471 Blasˇkic´ (IT-95-14-T), Order for the Production of Documents Used to Prepare for Testimony, 22 April 1999, 100, 401 Blasˇkic´ (IT-95-14-T), Decision of Trial Chamber I on the Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, 12 May 1999, 362, 423, 469

TA B L E O F C A S E S

Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, 54, 99, 162, 172, 173, 190, 191, 192, 193, 194, 195, 197, 199, 218, 219, 220, 221, 223, 229, 233, 236, 237, 237, 246, 248, 250, 251, 254, 257, 258, 263, 265, 267, 268, 269, 270, 271, 283, 294, 298, 299, 300, 301, 302, 304, 307, 308, 315, 316, 317, 321, 322, 323, 324, 345, 385, 404, 413, 444–445, 552, 558, 560, 561, 563, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 580 Blasˇkic´ (IT-95-14-A), Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000, 399, 400 Blasˇkic´ (IT-95-14-A), Decision on Evidence, 31 October 2003, 99, 410, 484 Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, 53, 82, 112, 181, 190, 191, 193, 216, 220, 221, 222, 250, 280, 281, 302, 304, 305, 319, 322, 323, 336, 346, 361, 444, 445, 462, 466, 484, 520, 533, 545, 553 Blasˇkic´ (IT-95-14-A), Partial Dissenting Opinion of Judge Weinberg de Roca, 29 July 2004, 447 Blockburger v. United States, 284 US 299, 304 (1931), 172, 434 Boskoski et al. (IT-04-82-PT), Decision on Johan Tarculovski’s Motion Challenging Jurisdiction, 1 June 2005, 133 Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), 111 Bouzari v. Iran, [2002] CarswellOnt 1469 (Ont.SCJ), 45

xv

Brandsetter v. Austria, (1991) 15 EHRR 213, 219, 513 Brðanin (IT-99-36), 167, 201, 463 Brðanin (IT-99-36-PT), Decision on Motion to Dismiss Indictment, 5 October 1999, 87, 371 Brðanin (IT-99-36-PT), Decision on Petition for a Writ of Habeas Corpus on Behalf of Radoslav Brðanin, 8 December 1999, 97 Brðanin (IT-99-36-PT), Decision on Motions by Momir Talic´ (1) To Dismiss the Indictment, (2) For Release, and (3) For Leave to Reply to Response of Prosecution to Motion for Release, 1 February 2000, 389 Brðanin (IT-99-36-PT), Decision on Motions by Momir Talic´ for a Separate Trial and for Leave to File a Reply, 9 March 2000, 371 Brðanin (IT-99-36-PT), Decision on Application by Momir Talic´ for the Disqualification and Withdrawal of a Judge, 18 May 2000, 107, 560 Brðanin (IT-99-36-A), Decision on Application for Leave to Appeal, 7 September 2000, 5, 393 Brðanin (IT-99-36-PT), Decision on Motion by Brðanin for Provisional Release, 18 September 2000, 392, 393 Brðanin (IT-99-36), Decision on Filing Replies, 7 June 2001, 372 Brðanin (IT-99-36-PT), Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, 362, 469 Brðanin (IT-99-36-PT), Order on the Standards Governing the Admission of Evidence, 15 February 2002, 456, 482

xvi

TA B L E O F C A S E S

Brðanin (IT-99-36-T), Decision on ‘Motion to Declare Rule 90(H)(ii) Void to the Extent it is in Violation of Article 21 of the Statute of the International Tribunal’ by the Accused Brðanin and on ‘Rule 90 (H)(ii) Submissions’ by the Accused Momir Talic´, 22 March 2002, 87 Brðanin (IT-99-36-PT), Decision on Motion for Production of Documents – Dzonlic Testimony of 11 March 2002, 9 April 2002, 494 Brðanin (IT-99-36-T), Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, 7 June 2002, 459 Brðanin (IT-99-36-T), Decision to Grant Certification to Appeal the Trial Chamber’s Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, 19 June 2002, 442 Brðanin (IT-99-36-AR73.9), Decision on Interlocutory Appeal, 11 December 2002, 459, 462, 495 Brðanin (IT-99-36-A), Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, 15 December 2002, 495 Brðanin (IT-99-36-T), Order for Testimony via Video-Conference Link Pursuant to Rule 71 bis, 9 September 2003, 475 Brðanin (IT-99-36-T), Decision on the Defence ‘Objection to Intercept Evidence’, 3 October 2003, 460 Brðanin (IT-99-36-T), Decision on Motion for Acquittal Pursuant to Rule 98 bis, 28 November 2003, 313 Brðanin (IT-99-36-A), Decision on Interlocutory Appeal, 19 March 2004, 313

Brðanin (IT-99-36-R77), Concerning Allegations Against Milka Maglov, Decision on Motion for Acquittal Pursuant to Rule 98 bis, 19 March 2004, 114 Brðanin (IT-99-36-T), Judgment, 1 September 2004, 102, 108, 163, 165, 166, 167, 168, 169, 175, 201, 311, 321, 323, 332, 343, 429, 463, 485, 557, 559, 561 Brima et al. (SCSL-03-06-PT), Ruling on the Application for the Issue of a Writ of Habeas Corpus Filed by the Applicant, 22 July 2003, 55 Brima et al. (SCSL-04-16-PT), Written Reasons for the Trial Chamber’s Oral Decision on the Defence Motion on Abuse of Process Due to Infringement of Principles of nullum crimen sine lege and Nonretroactivity as to Several Counts, 31 March 2004, 65, 540 Brima et al. (SCSL-2004-16-PT), Amended Consolidated Indictment, 13 May 2004, 213, 227, 270, 271, 279, 280, 281, 284, 311 Bukumba v. Canada, [2004] CarswellNat 216 (FC), 45, 396 Butare trial. See Nyiramasuhuko Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 2d 1325 (SD Florida, 2002), 45 Cage v. Louisiana, 498 US 39 (1990), 464 Canada v. Meyer, (1948) 4 LRTWC 98 (Canadian Military Court), 315 Canada v. United States, [1984] ICJ Reports 246, 103 ˇ elebic´i case. See Delalic´ et al. C ˇ erkez case. See Kordic´ et al. C Chorzo´w Factory case (Merits), [1928] PCIJ Reports, Series A, No. 17, 103

TA B L E O F C A S E S

Re Colonel Aird; ex parte Alpert, [2004] HCA 44, 46 Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion [1935] PCIJ 2, Series 16 A/B, No. 65 (4 December 1935), 163 CR v. United Kingdom, Series A, No. 335-B, 63, 65, 209, 218 Croatia v. Yugoslavia, 112 Delalic´ et al. (IT-96-21), 98, 102, 105, 243, 251, 253, 267, 268, 320, 332, 355, 448, 453, 460, 463, 499, 511, 533, 538, 556, 560, 571 Delalic´ et al. (IT-96-21), Order on Defence Applications for Amendment of the Directive on Assignment of Defence Counsel, Forwarding the Documents in the Language of the Accused and Confirmation of the Status of Witnesses for the Defence, 31 May 1996, 520 Delalic´ et al. (IT-96-21-T), Decision on Request by Accused Mucic´ for Assignment of New Counsel, 24 June 1996, 526 Delalic´ et al. (IT-96-21), Decision on the Motion by the Accused Zejnil Delalic´ for the Disclosure of Evidence, 26 September 1996, 400 Delalic´ et al. (IT-96-21-A), Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic´ and Zdravko Mucic´, 11 November 1996, 114 Delalic´ et al. (IT-96-21), Decision on the Defence Motion to Compel the Discovery of Identity and Location of Witnesses, 18 March 1997, 398

xvii

Delalic´ et al. (IT-96-21-T), Decision on the Motion on Presentation of Evidence by the Accused, 1 May 1997, 453, 472 Delalic´ et al. (IT-96-21-T), Decision on the Motion to allow Witnesses K, L and M to give their Testimony by Means of Video-Link Conference, 28 May 1997, 475 Delalic´ et al. (IT-96-21-T), Decision on the Prosecution’s Motion for the Redaction of the Public Record, 5 June 1997, 499 Delalic´ et al. (IT-96-21), Decision on the Motion to Compel the Disclosure of the Addresses of the Witnesses, 13 June 1997, 399 Delalic´ et al. (IT-96-21-T), Order on Zdravko Mucic´’s Request for Serbo-Croatian Interpretation, 23 June 1997, 532 Delalic´ et al. (IT-96-21), Decision on the Request of the Accused Hazim Delalic´ Pursuant to Rule 68 for Exculpatory Information, 24 June 1997, 400 Delalic´ et al. (IT-96-21-T), Decision on the Motion ex parte by the Defence of Zdravko Mucic´ Concerning the Issue of a Subpoena to an Interpreter, 8 July 1997, 120, 358, 460 Delalic´ et al. (IT-96-21-T), Decision on Zdravko Mucic´’s Motion for the Exclusion of Evidence, 2 September 1997, 460, 463 Delalic´ et al. (IT-96-21-T), Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, 456 Delalic´ et al. (IT-98-21-T), Decision on the Admissibility of Exhibit 155, 19 January 1998, 456

xviii

TA B L E O F C A S E S

Delalic´ et al. (IT-96-21-T), Order on Esad Landzˇo’s Submission Regarding Diminished or Lack of Mental Capacity, 18 June 1998, 333 Delalic´ et al. (IT-96-21-T), Decision on the Alternative Request for Renewed Consideration of Delalic´’s Motion for an Adjournment until 22 June or Request for Issue of Subpoenas to Individuals and Requests for Assistance to the Government of Bosnia and Herzegovina, 22 June 1998, 443 Delalic´ et al. (IT-96-21-T), Subpoena ad testificandum to Nurko Tabak, 25 June 1998, 469 Delalic´ et al. (IT-96-21-T), Decision on the Motion by the Defendant Delalic´ Requesting Procedures for Final Determination of the Charges Against Him, 1 July 1998, 369 Delalic´ et al. (IT-96-21-T), Decision on the Prosecution’s Alternative Request to Reopen the Prosecution’s Case, 19 August 1998, 428 Delalic´ et al. (IT-96-21-T), Decision of the Bureau on Motion on Judicial Independence, 4 September 1998, 419 Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, 3, 46, 54, 65, 73, 78, 81, 83, 97, 102, 109, 173, 206, 207, 208, 209, 212, 237, 243, 250, 251, 253, 258, 260, 264, 265, 270, 299, 303, 315, 316, 321, 322, 326, 331, 333, 342, 355, 360, 377, 463, 490, 556, 569, 570, 571, 575, 576, 577, 620 Delalic´ et al. (IT-96-21-A), Separate Opinion of Judge Hunt, 22 April 1999, 113

Delalic´ et al. (IT-96-21-A), Decision on Motion to Preserve and Provide Evidence, 22 April 1999, 496 Delalic´ et al. (IT-96-21-A), Decision of the Bureau on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 October 1999, 510 Delalic´ et al. (IT-96-21-A), Declaration of Judge Shahabuddeen, 25 October 1999, 510 Delalic´ et al. (IT-96-21-A), Order on Motion of the Appellant, Esad Landzˇo, for Permission to Obtain and Adduce Further Evidence on Appeal, 7 December 1999, 106 Delalic´ et al. (IT-96-2.1-A), Judgment, 20 February 2001, 65, 81, 87, 93, 102, 105, 110, 111, 130, 173, 244, 245, 248, 250, 253, 254, 257, 258, 268, 280, 319, 320, 321, 322, 323, 332, 333, 340, 368, 385, 418, 419, 434, 437, 438, 448, 460, 463, 465, 466, 484, 485, 497, 498, 512, 532, 533, 537, 545, 552, 553, 556, 560, 563, 564, 565, 566, 567, 568, 569, 571, 572, 607 Delalic´ et al. (IT-96-21-A), Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, 20 February 2001, 434 Delalic´ et al. (IT-96-21-T), Request for Personal Funds Used for Defence Expenses, 18 May 2001, 538 Delic´ (IT-96-21-R-R119), Decision on Motion for Review, 25 April 2002, 450 Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir., 1985), 155

TA B L E O F C A S E S

Democratic Republic of Congo v. Belgium (Yerodia case), Judgment, 14 February 2002, 47, 57, 152, 157, 159, 328 Deronjic´ (IT-02-61), 574 Deronjic´ (IT-02-61-S), Sentencing Judgment, 30 March 2004, 136, 221, 554, 574 Deronjic´ (IT-02-61-S), Separate Opinion of Judge Mumba, 30 March 2004, 107, 560 Diversion of Water from the Meuse Case (Netherlands v. Belgium), [1937] PCIJ Reports, Series A/B, No. 70, 103 Djukic´ (IT-96-20-PT), Transcript, 24 April 1996, 375, 393 Doe v. Qi, 349 F.Supp.2d 1258 (ND CA, 2004), 45 Doe v. Rafael Saravia, 348 F.Supp.2d 1112 (ED CA, 2004), 45 Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir., 2002), 45 Dokmanovic´ (IT-95-13a), 365, 381 Dokmanovic´ (IT-95-13a-T), 22 October 1997, 365, 395, 530 Dokmanovic´ (No. IT-95-13a-PT), Decision on the Motion for Release by the Accused Slavko Dokmanovic´, 22 October 1997, 381, 382 Domukovsky et al. v. Georgia (Nos. 623, 624, 626, 627/1995), UN Doc. CCPR/C/62/D/627/1995, 29 May 1998, 440 Drajic´ case, 125 Dudgeon v. United Kingdom, 23 September 1981, Series A, vol. 45, 4 EHRR 149, 67 ILR 395, 68, 361 Edwards v. United Kingdom, Series A, No. 247B, 16 December 1992, 398

xix

Eichmann case (A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem) and (1968) 36 ILR 277 (Israel Supreme Court)), 12, 44, 153, 154, 193, 353, 381, 541 Einsatzgruppen trial (United States of America v. Ohlendorf et al., (1949) 4 TWC 1), 331 Ekbatani v. Sweden, (1988) 10 EHRR 510, 219, 513 Empire v. Dithmar and Boldt (Hospital Ship “Llandovery Castle”), (1921) 2 ILR 437, 330 Erdemovic´ (IT-96-22), 74, 99, 104, 118, 165, 291, 331, 332, 349, 361, 385, 396, 424–425, 452, 469, 524, 555, 565, 579, 581 Erdemovic´ (IT-96-22), Indictment, 22 May 1996, 361 Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, 45, 92, 330, 331, 391, 396, 424, 470, 554, 555, 556, 557, 573, 574, 575, 576, 577, 581 Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, 75, 98, 99, 104, 120, 291, 332, 484, 524, 562 Erdemovic´ (IT-96-22-A), Judgment, 7 October 1997, 107, 153, 424, 447 Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, 75, 81, 105, 118, 120, 281–282, 290, 291, 350 Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, 7 October 1997, 107, 120, 187 Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Stephen, 7 October 1997, 524

xx

TA B L E O F C A S E S

Erdemovic´ (IT-96-22-A), Sentencing Judgment, 5 March 1998, 140 Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, 299, 385, 425, 565, 569, 570, 572, 573, 574, 575, 576 Faretta v. California, 422 US 806 (1975), 528 Fe´de´ration nationale des de´porte´s et interne´s re´sistants et patriotes et al. v. Barbie, (1984) 78 ILR 125, 44 Finta case (R v. Finta, [1994] 1 SCR 701), 44, 45, 173, 195 Fofana. See also Norman et al. Fofana (SCSL-04-14-PT), Confidential Submissions Made by the Government of the Republic of Sierra Leone under Rule 65(B) of the Rules of Procedure and Evidence, 23 February 2004, 395 Fofana (SCSL-04-14-PT), Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of the Accused Fofana, 3 March 2004, 146, 354 Fofana (SCSL-04-14-AR72(E)). Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Illegal Delegation of Powers by the United Nations, 25 May 2004, 55, 92 Fofana (SCSL-04-14-AR72(E)), Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of Armed Conflict, 25 May 2004, 279, 282 Ford v. Garcia 289 F.3d 932 (11th Cir., 2002), 45 Forum of Conscience v. Sierra Leone (No. 223/98), 28th Ordinary Session of the African Commission of Human and Peoples’ Rights, Cotonou,

Benin, 23 October to 6 November 2000, 546 France v. Turkey (SS Lotus case), [1927] PCIJ Ser. A. (Judgments) No. 10 (Judgment No. 9) (1929), 67, 154, 232–236, 532 Furundzˇija (IT-95-17/1), 78, 92, 98, 206, 208, 322, 342, 385, 403, 416, 418, 497 Furundzˇija (IT-95-17/1-T), Decision on the Defendant’s Motion to Dismiss Counts 13 and 14 of the Indictment (Lack of Subject-Matter Jurisdiction), 29 May 1998, 246 Furundzˇija (IT-95-17/1-T), Amended Indictment, 2 June 1998, 246, 526 Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, 46, 53, 64, 69, 78, 98, 99, 102, 105, 109, 118, 193, 206, 207, 209, 229, 231, 233, 234, 265, 274, 303, 304, 307, 309, 342, 403, 463, 469, 498, 509, 569, 575, 576, 577 Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, 93, 205, 250, 294, 308, 360, 418, 441, 445, 491, 506, 545, 556, 561, 562, 564, 569, 622 Gacumbitsi (ICTR-01-64-0051), Decision Concerning the Prosecutor’s Motion for the Transfer of Witnesses Detained in Rwanda, Rule 90 bis of the Rules of Procedure and Evidence, 11 July 2003, 470 Gacumbitsi (ICTR-2001-64-T), Judgment, 17 June 2004, 311, 339 Gagnon & Vallie`res v. The Queen, [1971] CA Que´bec 454, 64 Galic´ (IT-98-29), 225, 281, 346, 500 Galic´ (IT-98-29-AR73.2), Decision on Interlocutory Appeal

TA B L E O F C A S E S

Concerning Rule 92 bis (C), 7 June 2002, 478 Galic´ (IT-98-29-T), Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philips, 3 July 2002, 481 Galic´ (IT-98-29-T), Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic´, 3 October 2002, 119, 431, 500 Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003, 95, 185, 222, 225, 275, 281, 344, 346, 545 Garza v. United States of America, Report No. 52/01, Case 12.243, 4 April 2001, 485, 513, 572 Gbao (SCSL-04-15-AR72(E)), Decision on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, 25 May 2004, 55, 82 Gbao (SCSL-04-15-T), Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 June 2004, 410, 418, 422, 570 Gbao (SCSL-04-15-T), Decision on Application to Withdraw Counsel, 6 July 2004, 421 Gentini case, 104 Georgiadis v. Greece, 29 May 1997, European Court of Human Rights, Report 1997-III, 432 Go¨ring case (France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203), 7, 10, 54, 62, 98, 157, 227, 228, 260, 263, 330, 395, 464

xxi

The Greek Case, (1972) 12 Yearbook of the European Convention on Human Rights 186, 250 Hadzˇihasanovic´ et al. (IT-01-47-PT), Decisions granting Provisional Release to Enver Hadzˇihasanovic´, Mehmed Alagic and Amir Kubura, 9 December 2001, 394, 532 Hadzˇihasanovic´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002, 65, 66, 95, 101, 620 Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, 63, 66, 83, 95, 102, 257, 318, 322 Hadzˇihasanovic´ et al. (IT-01-47-AR72), Partial Dissenting Opinion of Judge Shahabuddeen, 16 July 2003, 106 Hadzˇihasanovic´ et al. (IT-01-47-T), Decision Pursuant to Rule 65 Granting Amir Kubura Authorization to Attend his Mother’s Funeral, 12 March 2004, 390 Haradinaj et al. (IT-04-84-I), Indictment, 24 February 2005, 278, 482 Harb v. Canada, [2002] CarswellNat 2954 (FC), 45, 396 Hess v. United Kingdom (App. No. 6231/ 73), (1975) 2 DR 72 544 High Command trial (United States of America v. von Leeb et al., (1948) 12 LRTWC 1; 11 TWC 462), 105, 279, 339 Hostage case (United States v. Wilhelm List et al., (1948) 8 LRTWC 34, 11 TWC 757), 105, 256

xxii

TA B L E O F C A S E S

Ilhan v. Turkey (App. No. 22277/93), Judgment, 27 June 2000, 250 Ilijkov v. Bulgaria (App. No. 33977/96), Judgment, 26 July 2001, 394 Imanishimwe (ICTR-99-46-T), Oral Decision, 6 March 2002, 431 Ireland v. United Kingdom, Series A, vol. 25, 250 Jelisic´ (IT-95-10), 87, 170, 171, 222, 265, 449, 453, 550 Jelisic´ (IT- 95-10-I), Indictment, 21 July 1995, 170 Jelisic´ (IT-95-10-T), Amended Indictment, 3 March 1998, 246, 526 Jelisic´ (IT-95-10-I), Amended Indictment, 12 May 1998, 372 Jelisic´ (IT-95-10-T), Decision on Communication Between Parties and Witnesses, 11 December 1998, 471, 473 Jelisic´ (IT-95-10- T), Judgment, 19 October 1999, 169 Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, 3, 64, 83, 99, 101, 163, 164, 170, 171, 173, 177, 190, 191, 193, 194, 199, 222, 234, 264, 265, 267, 270, 326, 385, 423, 449, 462, 577, 620 Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, 119, 171, 431, 434, 435, 437, 440, 449, 545, 553, 564, 566, 573 Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge Pocar, 5 July 2001, 453 Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge Wald, 5 July 2001, 87, 162, 353, 406, 449, 561, 562 Jelisic´ (IT-95-10-A), Separate Opinion of Judge Nieto-Navia, 5 July 2001, 106

Jelisic´ (IT-95-10-R), Decision on Motion for Review, 2 May 2002, 450 Jokic´ (IT-01-42, IT-01-42/1 and IT-0146), 396, 558, 574, 610 Jokic´ (IT-01-42-PT and IT-01-46-PT), Orders on Motions for Provisional Release, 20 February 2002, 393, 518, 532 Jokic´ (IT-01-42/1-S), Sentencing Judgment, 18 March 2004, 133, 391, 558, 560, 572, 573, 574, 577 Jones v. Saudi Arabia, [2004] EWCA Civ 1394, 46 Jorgic´ case, 125 Judge v. Canada (No. 829/1998), UN Doc. CCPR/C/78/D/829/1998, 20 October 2003, 8 Justice trial (United States of America v. Alsto¨tter et al. (1948) 3 TWC 1, 6 LRTWC 1, 14 ILR 278), 501 Kabiligi et al. (ICTR-96-34-I), Decision on the Defence Motions Objecting to a Lack of Jurisdiction and Seeking to Declare the Indictment Void ab initio, 13 April 2000, 137 Kabuga Family case (Miscellaneous – Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002), 106, 113, 149, 166 Kajelijeli (ICTR-98-44A), 538 Kajelijeli (ICTR-98-44A-T), Minutes of Proceedings, 2 July 2001, 412 Kajelijeli (ICTR-98-44A-T), Decision on the Appeal from the Decision of 13 March 2001 Rejecting the Defence Motion Objecting to the

TA B L E O F C A S E S

Jurisdiction of the Tribunal, 18 September 2001, 136 Kajelijeli (ICTR-98-44A-T), Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 16 April 2002, 40, 489, 490, 491 Kajelijeli (ICTR-98-44A-T), Detention of Witnesses, Decision on the Prosecutor’s Urgent Ex Parte Motion Requesting an Order Discharging Prosecution Witnesses GDD, GAO, GDQ and GAP from further Detention in UNDF (Rule 90 bis), 29 April 2002, 470 Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, 109, 166, 168, 169, 180, 181, 223, 341, 603 Kajelijeli (ICTR-98-44A-A), Decision on Defence Motion for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 28 October 2004, 484 Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, 97, 99, 258, 377, 388, 446, 448, 504, 520, 539 Kallon et al. (SCSL-04-15, 16 and 17-AR72-E), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, 39, 51, 57, 58, 67, 82 Kallon et al. (SCSL-04-15-AR72(E)), Decision on Challenge to Jurisdiction: Lome´ Accord Amnesty, 13 March 2004, 338, 540 Kamara (SCSL-04-16-AR72(E)), Decision on Challenge to Jurisdiction: Lome´ Accord Amnesty, 13 March 2004, 338, 540

xxiii

Kambanda (ICTR-97-23), 425, 426, 562, 565 Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, 54, 162, 180, 181, 182, 299, 321, 327, 425, 465, 546, 550, 556, 557, 561, 562, 566, 567, 568, 569, 571, 572, 573, 574, 575, 607 Kambanda (ICTR 97-23-A), Judgment, 19 October 2000, 425, 446, 525, 550, 564 Kamuhanda (ICTR-99-54-T), Minutes of Proceedings, 3 September 2001, 412 Kamuhanda (ICTR-99-54A-T), Decision on Kamuhanda’s Motion for Extension of Judicial Cooperation to Certain States and to the UNHCR Pursuant to Article 28 of the Statute and Resolution 955 of the Security Council, 9 May 2002, 356 Kamuhanda (ICTR-99-54A-T), Decision on Kamuhanda’s Motion for Partial Acquittal Pursuant to Rule 98 bis of the Rules of Procedure and Evidence, 20 August 2002, 431, 463 Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, 164, 197, 210, 561 Kamuhanda (ICTR-99-54A-A), Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005, 3, 224, 354 Kanyabashi (ICTR-96-15), 52, 53, 128, 173, 385, 521 Kanyabashi (ICTR-96-15-T), Decision on the Defence Motion on Jurisdiction, 18 June 1997, 50, 52, 53, 128 Kanyabashi (ICTR-96-15-A), Decision on the Defence Motion for Interlocutory Appeal on

xxiv

TA B L E O F C A S E S

Jurisdiction of the Trial Chamber, 3 June 1999, 369 Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, 79, 80, 123, 217, 368, 601 Kanyabashi (ICTR-96-15-A), Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, 79 Kanyabashi (ICTR-96-15-A), Joint Separate and Concurring Opinion of Judge Wang and Judge NietoNavia, 3 June 1999, 79, 80, 88, 311 Kanyabashi (ICTR-96-15-I), Decision on the Extremely Urgent Motion on Habeas Corpus and for Stoppage of Proceedings, 23 May 2000, 521 Kanyabashi (ICTR-96-15-A), Decision (On Application for Leave to Appeal Filed under Rule 65(D) of the Rules of Procedure and Evidence), 13 June 2001, 391, 574 In re Kappler, (1948) 15 ILR 471 (Military Tribunal of Rome), 279 Karadzˇic´ et al. (IT-95-5 and IT-95-18), 19, 20, 24, 69, 347, 381, 388 Karadzˇic´ et al. (IT-95-5-R61 and IT-95-18-R61), Deferral, 16 May 1995, 327 Karadzˇic´ et al. (IT-95-5-I), Indictment, 24 July 1995, 19, 177 Karadzˇic´ et al. (IT- 95-18-R61, IT-95-5R61), Transcript, 27 June 1996, 170 Karamira case (Ministe`re Public v. Karamira, 1 Receuil de jurisprudence contentieux du ge`nocide et des massacres au Rwanda 75 (1st inst., Kigali, 14 February 1997)), 125 Karemera et al. (ICTR-98-44-T), Decision Denying Leave to File an Amended Indictment, 8 October 2003, 311

Karemera et al. (ICTR-98-44-PT), Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 9 October Denying Leave to File an Amended Indictment, 19 December 2003, 448 Karemera et al. (ICTR-98-44-T), Decision on Motion by Nzirorera for Disqualification of Trial Judges, 17 May 2004, 176, 416 Karemera et al. (ICTR-98-44-AR15bis.2), Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 28 September 2004, 415 Karemera et al. (ICTR-98-44-AR15bis.2), Reasons for Decision on Interlocutory Appeals Regarding Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, 413, 415 Karemera et al. (ICTR-98-44-PT), Decision on Severance of Andre´ Rwamakuba and for Leave to File Amended Indictment, Articles 6, 11, 12 quater, 18 and 20 of the Statute; Rules 47, 50 and 82(B) of the Rules of Procedure and Evidence, 14 February 2005, 312, 370, 373 Kayishema et al. (ICTR-95-1), 169–171, 173, 177, 180, 239, 266, 554 Kayishema et al. (ICTR-95-1-T), Decision on the Joinder of the Accused and Setting the Date for Trial, 6 November 1996, 369

TA B L E O F C A S E S

Kayishema et al. (ICTR-95-1-T), Order on the Probative Value of Alleged Contradiction between the Oral and Written Statement of a Witness During Examination, 17 April 1997, 455 Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, 81, 95, 101, 138, 169, 172, 173, 174, 175, 177, 178, 190, 191, 192, 194, 195, 200, 222, 236, 237, 239, 249, 266, 268, 278, 293, 302, 305, 308, 309, 317, 321, 322, 323, 340, 341, 385, 436, 520, 554, 569, 570, 571, 572, 574, 576 Kayishema et al. (ICTR-95-1-A) Judgment (Reasons), 1 June 2001, 99, 162, 165, 173, 294, 303, 336, 340, 341, 454, 466, 484, 514, 561 Kayishema et al. (ICTR-95-1A-T), Judgment, 7 June 2001, 198 Kayishema et al. (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, 199 Kolundzˇija (IT-95-8-I and IT-98-30-PT), Decision Rejecting Prosecutor’s Request for Leave to Amend Indictments, 6 July 1999, 363 Kondewa. See also Norman et al. Kondewa (SCSL-04-14-AR72(E)) Decision on Challenge to Jurisdiction: Lome´ Accord Amnesty, 13 March 2004, 338 Kordic´ et al. (IT-95-14/2), 70, 119, 199, 205, 216, 220, 262, 264, 265, 336, 346, 385, 430, 457, 460, 559, 560 Kordic´ et al. (IT-95-14/2-T), Transcripts T. 13694, 460 Kordic´ et al. (IT-94-14/2-PT), Order on Prosecutor’s Motion for Leave to Withdraw the Indictment Against Pero Skopljak, 19 December 1997, 375

xxv

Kordic´ et al. (IT-95-14/2-PT), Order Concerning Documents to be Transmitted by the Defence to the Judge Reviewing the Proposed Amended Indictment, 26 August 1998, 363 Kordic´ et al. (IT-95-14/2-PT), Decision on the Motion of the Accused for Access to Non-Public Materials in the Lasˇva Valley and Related Cases, 12 November 1998, 453, 502 Kordic´ et al. (IT-95-14/2-PT), Decision on Accused Mario Cˇerkez’s Application for Separate Trial, 7 December 1998, 370 Kordic´ et al. (IT-95-14/2-PT), Decision on Defence Motion to Clarify, 15 January 1999, 404 Kordic´ et al. (IT-95-14/2-PT), Order on Motion to Compel Compliance by the Prosecutor with Rules 66(A) and 68, 26 February 1999, 520 Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss All Allegations of Planning and Preparation under Article 7(1) as Outside the Jurisdiction of the Tribunal or as Unenforceable, 1 March 1999, 65 Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment Due to the Illegal Foundation of the Tribunal, 1 March 1999, 53, 78 Kordic´ et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction Portions of the Amended Indictment Alleging ‘Failure to Punish’ Liability, 2 March 1999, 317

xxvi

TA B L E O F C A S E S

Kordic´ et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, 81, 84, 99, 107, 230, 234, 235, 242, 257, 275, 277, 560 Kordic´ et al. (IT-95-14/2-T), Decision on Prosecution Request to Proceed by Deposition, 13 April 1999, 476 Kordic´ et al. (IT-95-14/2-T), Decision on the Prosecution Application to Admit the Tulica Report and Dossier into Evidence, 29 July 1999, 454, 455 Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Application for Leave to Appeal and Scheduling Order, 28 March 2000, 457 Kordic´ et al. (IT-95-14/2-PT), Decision on Defence Motions for Judgment of Acquittal, 6 April 2000, 119 Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Appeal regarding Statement of a Deceased Witness, 21 July 2000, 454, 456, 457, 462 Kordic´ et al. (IT-95-14/2-AR73.6), Decision in the Appeals Chamber Regarding the Admission into Evidence of Seven Adavits and one Formal Statement, 18 September 2000, 81, 477 Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, 66, 81, 95, 96, 172, 173, 188, 190, 191, 192, 194, 195, 196, 197, 199, 205, 217, 221, 229, 236, 237, 243, 244, 246, 248, 250, 251, 252, 253, 254, 262, 264, 268, 270, 271, 276, 277, 283, 298, 299, 300, 301, 302, 315, 316, 318, 319, 320, 321, 322, 323, 325, 335,

336, 346, 467, 485, 534, 559, 571, 580 Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Appeal regarding Statement of a Deceased Witness, 21 July 2001, 485, 572 Kordic´ et al. (IT-95-14/2-A), Decision on the Application by Mario Cˇerkez for Extension of Time to File his Respondent’s Brief, 11 September 2001, 513 Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, 53, 82, 96, 106, 112, 173, 190, 191, 192, 193, 216, 220, 221, 222, 250, 264, 265, 275, 280, 283, 295, 336, 344, 346, 385, 434, 438, 444, 466, 514, 520, 548, 549, 558, 559, 560, 601 Kordic´ et al. (IT-95-14/2-A), Joint Dissenting Opinion of Judge Schomburg and Judge Gu¨ney on Cumulative Convictions, 17 December 2004, 437 Koroma (SCSL-03-I), Indictment, 3 March 2003, 270 Koroma (SCSL-03-I), Indictment, 7 March 2003, 375 Kovacˇevic´ (IT-97-24), 373, 396 Kovacˇevic´ (IT-97-24-I), Indictment, 13 March 1997, 177 Kovacˇevic´ (IT-97-24-I), Decision on Prosecutor’s Request to File an Amended Indictment, 5 March 1998, 371, 373 Kovacˇevic´ (IT-97-24-AR73), Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 374 Kovacˇevic´ (IT-97-24-PT), Decision Refusing Defence Motion for Subpoena, 23 June 1998, 468

TA B L E O F C A S E S

Kovacˇevic´ (IT-97-24-PT), Decision on Defence Motion to Reconsider, 30 June 1998, 502 Kovacˇevic´ (IT-97-24-AR73), Separate Opinion of Judge Shahabuddeen, 2 July 1998, 367, 503 Kovacˇevic´ (IT-97-24-PT), Decision on Defence Motion to Strike Counts 4, 5, 8, 9, 10, 11, 13 and 15, 6 July 1998, 108 Kovacˇevic´ (IT-01-42/2-I), Decision on Provisional Release, 2 June 2004, 390 Kovacˇevic´ (IT-01-42/2-PT), Order on the Prosecutor’s Request for Referral to National Authorities Under Rule 11 bis, 20 January 2005, 396 Krajisnik (IT-00-39 and IT-00-40), 394, 478 Krajisnik (IT-00-39 and 40-PT), Judgment on Motion Challenging Jurisdiction – With Reasons, 22 September 2000 101, 317 Krajisnik (IT-00-39 and 40-PT), Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65 ter, 66(B) and 67(C), 1 August 2001, 400 Krajisnik (IT-00-39 and 40-PT), Decision on Momcilo Krajisnik’s Notice of Motion for Provisional Release, 8 October 2001, 393, 394, 518 Krajisnik (IT-00-39 and 40), Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Admission of Written Statements of Witnesses Pursuant to Rule 92 bis, 28 February 2003, 492 Krajisnik (IT-00-39 and 40), Decision Pursuant to Rule 15 bis (D), 16 December 2004, 413, 415 Krause v. Switzerland (App. No. 7986/77), (1978) 13 DR 73, 519

xxvii

Krnojelac (IT-97-25), 99, 100, 343, 401 Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, 107, 359, 368, 520, 536 Krnojelac (IT-97-25-T), Order for Testimony via Video-Conference Link, 15 January 2001, 475 Krnojelac (IT-97-25-T), Judgment, 15 March 2002, 78, 93, 96, 100, 173, 174, 194, 195, 201, 205, 207, 208, 216, 217, 220, 221, 250, 281, 314, 316, 323, 480, 556, 571, 577, 601 Krnojelac (IT-97-25-A), Judgment, 17 September 2003, 204, 216, 258, 307, 309, 310, 343, 360, 362, 437, 444, 446, 467, 569 Krnojelac (IT-97-25-A), Separate Opinion of Judge Shahabuddeen, 17 September 2003, 343 Krsmanovic´ (IT-96-19-Misc.1), Decision Concerning Serbo-Croatian Interpretation, 29 March 1997, 532 Krstic´ (IT-98-33), 64, 165, 167, 168, 169, 170, 175, 179, 184, 200, 204, 314, 324, 373, 436, 457, 519, 569, 572 Krstic´ (IT-98-33-PT), Binding Order to the Republika Srpska for the Production of Documents, 12 March 1999, 468, 469, 487 Krstic´ (IT-98-33-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 6 May 1999, 359 Krstic´ (IT-98-33-T), Judgment, 2 August 2001, 54, 101, 117, 163, 166, 168, 169, 171, 173, 176, 179, 183, 199, 200, 201, 204, 215, 217, 224, 229, 296, 298, 299, 301, 303, 314, 323, 324, 385, 436, 444–445, 480, 481,

xxviii

TA B L E O F C A S E S

538, 549, 562, 568, 569, 571, 572, 576 Krstic´ (IT-98-33-A), Judgment, 19 April 2004, 64, 83, 95, 111, 112, 163, 164, 165, 168, 332, 436, 437, 438, 446, 553, 563, 576, 583 Krstic´ (IT-98-33-A), Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004, 162, 166 Kunarac et al. (IT-96-23 and IT-96-23/1), 202, 237, 342, 498, 553 Kunarac et al. (IT-96-23-PT), Order Granting Leave to File an Amended Indictment and Confirming the Amended Indictment, 19 August 1998, 373 Kunarac et al. (IT-96-23-PT), Decision on Joinder of Trials, 9 February 2000, 370 Kunarac et al. (IT-96-23-PT and IT-9623/1-PT), Decision on Request of the Accused Radomir Kovac to Allow Mr Milan Vujin to Appear as a Co-Counsel Acting Pro Bono, 14 March 2000, 115, 345 Kunarac et al. (IT-96-23-T and IT-96-23/ 1-T), Decision on Motion for Acquittal, 3 July 2000, 264, 431, 432 Kunarac et al. (IT-96-23-T and IT-96-23/ 1-T), Judgment, 22 February 2001, 46, 69, 78, 80, 86, 99, 100, 102, 103, 105, 109, 194, 201, 202, 207, 246, 272, 296, 297, 298, 321, 340, 341, 342, 343, 366, 480, 498, 526, 553, 556, 567, 569, 570, 571, 572, 573, 574 Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, 98, 109, 118, 172, 188, 190, 192, 193, 194, 195, 196, 201, 202, 203, 205, 206, 207, 208, 210, 229, 234, 237, 238, 250, 256, 258, 265, 272, 295, 339, 434, 435, 438, 444, 449, 575

Kupresˇkic´ (IT-95-16), 89, 221, 283, 332, 344, 345, 359, 375, 385, 444, 454, 461, 483, 538, 559, 590 Kupresˇkic´ (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of Indictment Against Marinko Katava, 19 December 1997, 375 Kupresˇkic´ (IT-95-16-T), Decision on Communication Between the Parties and their Witnesses, 21 September 1998, 461, 473 Kupresˇkic´ (IT-95-16-T), Authorization by the President of an On-Site Visit Pursuant to Rule 4 of the Rules of Procedure and Evidence, 29 September 1998, 590 Kupresˇkic´ (IT-95-16-T), Decision, 11 January 1999, 353, 400, 406, 514 Kupresˇkic´ (IT-95-16-T), Decision On Defence Motion to Summon Witness, 8 February 1999, 469 Kupresˇkic´ (IT-95-16-T), Decision On Prosecution and Defence Requests to Proceed by Deposition, 11 February 1999, 476 Kupresˇkic´ (IT-95-16-T), Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, 17 February 1999, 339, 454 Kupresˇkic´ (IT-95-16-T), Decision on the Request of 24 June 1999 by Counsel for the Accused to Allow Mr Mirko Vrdoljak to Examine the Defence Witnesses, 25 June 1999, 115 Kupresˇkic´ (IT-95-16-AR73.3), Decision on Appeal by Dragan Papic´ Against Ruling to Proceed by Deposition, 15 July 1999, 477 Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, 78, 81, 102, 103, 105, 107, 111, 190, 191, 194, 199, 215,

TA B L E O F C A S E S

216, 217, 218, 220, 221, 222, 224, 225, 246, 283, 344, 366, 419, 526, 536, 555, 559, 563, 564, 573, 575, 576 Kupresˇkic´ (IT-95-16-A), Decision on the Motions of Drago Josipovic´, Zoran Kupresˇkic´ and Vlatko Kupresˇkic´ to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be taken pursuant to Rule 94(B), 29 May 2001, 483, 492, 493 Kupresˇkic´ (IT-95-16-A), Appeal Judgment, 23 October 2001, 89, 110, 136, 218, 299, 332, 359, 434, 435, 444, 445, 446, 454, 468, 480, 481, 484, 499, 500, 520, 553, 575 Kupresˇkic´ (IT-96-16-T), Request by Zoran Kupresˇkic´, 21 December 2001, 538 Kvocˇka et al. (IT-98-30/1), 207, 208, 212, 272, 303, 312, 390, 475 Kvocˇka et al. (IT-98-30/1-PT), Decision on Preliminary Motions Filed by Mladko Radic´ and Miroslav Kvocˇka Challenging Jurisdiction, 1 April 1999, 234 Kvocˇka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, 108, 361 Kvocˇka et al. (IT-98-30-PT and IT-95-8PT), Decision on Prosecutor’s Motion for Joinder, 19 October 1999, 371 Kvocˇka et al. (IT-98-30-PT), Decision on Motion for Provisional Release of Miroslav Kvocˇka, 2 February 2000, 393 Kvocˇka et al. (IT-98-30-T and IT-95-4PT), Decisions on Prosecution

xxix

Motion to Join Trials, 14 April 2000, 370, 371 Kvocˇka et al. (IT-98-30/1-T), Decision on Judicial Notice, 8 June 2000, 493 Kvocˇka et al. (IT-98-30/1-T), Decision on the Defence of Alibi for the Accused Zoran Zˇigic´, 21 July 2000, 400 Kvocˇka et al. (IT-98-30/1-T), Decision on the Defence ‘Motion Regarding Concurrent Procedures Before International Criminal Tribunal for the former Yugoslavia and International Court of Justice on the Same Questions’, 5 December 2000, 112 Kvocˇka et al. (IT-98-30/1-T), Decision on Defence Motions for Acquittal, 15 December 2000, 431 Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, 78, 206, 207, 208, 209, 212, 216, 217, 221, 223, 224, 250, 251, 256, 261, 267, 273, 294, 299, 300, 308, 313, 316, 331, 335, 341, 342, 480, 500, 533 Kvocˇka et al. (IT-98-30/1-A), Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zˇigic´, 7 February 2003, 465, 524 Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, 196, 210, 216, 218, 295, 303, 308, 323, 335, 362, 372, 433, 444, 446, 500, 545, 570, 573, 574, 578 Kvocˇka et al. (IT-98-30/1-A), Separate Opinion of Judge Weinberg de Roca, 28 February 2005, 447 Lajic´ (IT-95-8-T), Order for the Withdrawal of the Charges Against the Person Named Goran Lajic´ and for his Release, 17 June 1996, 375

xxx

TA B L E O F C A S E S

Laskey, Jaggard & Brown v. United Kingdom (App. No. 109/1995/615/ 703-705), Judgment, 20 January 1997, 68, 361 Lawrence v. Texas, 539 US 558 (2003), 119 Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General Assembly for an Advisory Opinion), [1996] ICJ Reports 226, 261, 283, 300, 346, 347 Libya v. United States of America, 50 Limaj et al. (IT-03-66), 66, 189, 231, 312 Limaj et al. (IT-03-66-AR65.3), Decision on Isak Musliu’s Request for Provisional Release, 31 October 2003, 95, 332–334 Limaj et al. (IT-03-66-PT), Second Amended Indictment, 6 November 2003, 189, 231, 278, 312, 482 Llandovery Castle case (Empire v. Dithmar and Boldt, (1921) 2 ILR 437), 330 Lotus case (France v. Turkey, [1927] PCIJ Ser. A. (Judgments) No. 10 (Judgment No. 9) (1929)), 67, 154, 232–236, 532 Maleki v. Italy (No. 699/1996), UN Doc. CCPR/C/66/D/699/1996, 27 July 1999, 419 Mansaraj et al. v. Sierra Leone (Nos. 839, 840 and 841/1998), UN Doc. CCPR/C/64/D/839, 840 and 841/ 19, 546 Martic´ (IT-95-11-R61), Review of the Indictment Under Rule 61, 8 March 1996, 283 Mbenge v. Zaire (No. 16/1977), UN Doc. CCPR/C/OP/2, 25 March 1983, 419 MC v. Bulgaria (App. No. 392 72/98), Judgment, 4 December 2003, 46

Media case. See Nahimana et al. Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1344 (ND GA, 2002), 45 Milosˇevic´ et al. (IT-99-37), 149, 312, 327, 328, 361, 364, 367 Milosˇevic´ (IT-01-51), 367 Milosˇevic´ (IT-02-54), 231, 268, 367, 422, 494, 515, 528–530 Milosˇevic´ et al. (IT-99-37-PT), Indictment, 22 May 1999, 327 Milosˇevic´ et al. (IT-99-37-I), Decision on Review of Indictment and Application for Consequential Orders, 24 May 1999, 149, 364 Milosˇevic´ (IT-01-50-I), Indictment, 8 October 2001, 521 Milosˇevic´ et al. (IT-99-37-PT), Second Amended Indictment, 16 October 2001, 312, 361 Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, 50, 63, 92, 97, 99, 107, 159, 328, 539, 542, 621 Milosˇevic´ (IT-01-51-I), Indictment, 22 November 2001, 19, 68, 212, 361 Milosˇevic´ (IT-99-37-PT, IT-01-50-PT and IT-01-51-PT), Decision on Prosecutor’s Motion for Joinder, 13 December 2001, 367 Milosˇevic´ (IT-99-37-AR73, IT-01-50AR73 and IT-01-51-AR73), Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, 367 Milosˇevic´ (IT-02-54-T), Public Version of the Confidential Decision on the Prosecutor’s Motion to Grant Specific Protection Pursuant to Rule 70, 25 July 2002, 487 Milosˇevic´ (IT-02-54-AR73.2), Decision on Admissibility of Prosecution’s

TA B L E O F C A S E S

Investigator Evidence, 30 September 2002, 455 Milosˇevic´ (IT-02-54-T), Order on Prosecution Motion for the Testimony of Nojko Marinovic´ via Video-Conference Link, 19 February 2003, 475 Milosˇevic´ (IT-02-54-T), Decision on Prosecution Motion for Protective Measures (Concerning a Humanitarian Organisation), Public Version of a Confidential Decision Filed 13 March 2003, 1 April 2003, 515 Milosˇevic´ (IT-02-54-T), Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, 494, 528 Milosˇevic´ (IT-02-54-AR73.4), Dissenting Opinion of Judge David Hunt, 30 September 2003, 43, 414 Milosˇevic´ (IT-02-54-AR73.5), Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003, 492 Milosˇevic´ (IT-02-54-AR73.5), Dissenting Opinion of Judge David Hunt, 28 October 2003, 517 Milosˇevic´ (IT-02-54-AR73.5), Separate Opinion of Judge Shahabuddeen Appended to the Appeals Chamber’s Decision dated 28 October 2003 on the Prosecution’s Interlocutory Appeal against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003, 492

xxxi

Milosˇevic´ (IT-02-54-T), Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 16 December 2003, 490 Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, 94, 189, 204, 231, 234, 278, 449, 453, 480, 481, 482 Milosˇevic´ et al. (IT-99-37-PT), Second Amended Indictment, 28 July 2004, 133 Milosˇevic´ (IT-02-54-T), Order on the Modalities to be Followed by Court Assigned Counsel, 3 September 2004, 397 Milosˇevic´ (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, 422, 494, 495, 516, 529 Milosˇevic´ (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, 397, 422, 530, 621 Milosˇevic´ (IT-02-54-T), Decision on Assigned Counsel’s Motion for Withdrawal, 7 December 2004, 87, 116 Milosˇevic´ (IT-02-54-T), Decision Arming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005, 528 Milosˇevic´ v. The Netherlands (App. No. 77631/01), Admissibility Decision, 19 March 2002, 543 Milosˇevic´ v. The Netherlands, Case No. KG. 01/975, ELRO No. AD 3266, 543 Milutinovic´ et al. (IT-99-37-AR72), Decision on Draguljob Ojdanic´’s

xxxii

TA B L E O F C A S E S

Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, 31–32, 310, 314, 327 Milutinovic´ et al. (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, 3, 83, 514, 620 Milutinovic´ et al. (IT-99-37-AR72.2), Reasons for Decision Dismissing Interlocutory Appeal Concerning Jurisdiction over the Territory of Kosovo, 8 June 2004, 130, 560 Miranda v. Arizona, 384 US 436 (1966), 460 M’Naghten’s Case, (1843) 10 Cl. & Fin 200, 8 ER 718, 195, 333 Mpambara (ICTR-2001-65-I), De´cision (Requeˆte de la De´fens aux fins de la mise en liberte´ de l’Accuse´), 22 October 2002, 391, 555 Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, 331, 560, 569, 577, 581 Mrksic´ et al. (IT-95-13-R61), Review of Indictment Pursuant to Rule 61, 3 April 1996, 133, 191, 194 Mrksic´ et al. (IT-95-13/1-PT), Order Terminating Proceedings Against Salvko Dokanovic´, 15 July 1998, 371 Mrksic´ et al. (IT-95-13/1-AR65), Decision on Appeal against Refusal to Grant Provisional Release, 8 October 2002, 392 Mucic´. See Delalic´ et al. Mucic´ et al. (IT-96-21-Abis), Judgment on Sentence Appeal, 8 April 2003, 552 Mugenzi et al. (ICTR-99-50-I), Decision on Justin Mugenzi’s Motion for Stay of Proceedings or in the Alternative Provisional Release (Rule 65) and in Addition

Severance (Rule 82(B)), 8 November 2002, 391, 574 Mugesera v. Canada, [2003] FCJ 1292, [2003] FCA 325 (CA), 45, 138, 181, 329, 396 Mugiraneza (ICTR-99-50-AR73), Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, 27 February 2004, 522 Muhimana (ICTR-95-I-B-I), De´cision (Requeˆte de la De´fense aux fins de la mise en liberte´ provisoire de l’Accuse´), 1 October 2002, 393 Muhimana (ICTR-1995-1B-I), Decision on Motion to Leave to Amend Indictment, 21 January 2004, 372 Musabyimana (ICTR-2001-62-T), Decision on Samuel Musabyimana’s Motion to Exclude Anonymous Prosecutorial Witness Statements and to Review the Decision on Confirmation of the Indictment, 9 September 2002, 474 Musema (ICTR-96-13), 149, 228, 278, 434, 436, 456, 482, 550 Musema (ICTR-96-13-T), Judgment, 17 January 2000, 81 Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, 92, 95, 109, 162, 173, 175, 177, 178, 180, 190, 191, 192, 194, 199, 205, 209, 214, 236, 237, 239, 250, 268, 271, 272, 278, 293, 296, 301, 304, 305, 322, 340, 341, 358, 385, 455, 456, 480, 482, 497, 552, 556, 561, 569 Musema (ICTR-96-13-A), Judgment, 16 November 2001, 434, 436, 447, 484, 550

TA B L E O F C A S E S

Nahimana et al. (ICTR-99-52), 136, 180, 182, 217, 220, 595 Nahimana et al. (ICTR-99-52-T), Decision on the Defence Motion for the Release or Alternatively Provisional Release of Ferdinand Nahimana et al., 13 June 2001, 393 Nahimana et al. (ICTR-99-52-I), Decision on the Defence’s Request to have the Report and the Testimony of Expert Witness Jean Pierre Chre´tien Declared Inadmissible, 31 January 2002, 404 Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, 45, 82, 95, 135, 136, 137, 138, 180, 181, 182, 183, 216, 217, 219, 220, 258, 300, 321, 322, 368, 422, 436, 437, 470, 503, 569 Naletilic´ et al. (IT-98-34), 244, 274 Naletilic´ et al. (IT-98-34-PT), Decisions on Prosecution Amended Motion for Approval of Rule 94 ter Procedure (Formal Statements) and on Prosecutor’s Motion to take Depositions for Use at Trial (Rule 71), 10 November 2000, 476, 477 Naletilic´ et al. (IT-98-34-PT), Decision on the Request of the Accused to be Given the Opportunity to be Interrogated Under Application of a Polygraph, 27 November 2000, 457, 462 Naletilic´ et al. (IT-98-34-T), Decision on Prosecutor’s Motion to Permit Investigators to Follow the Proceedings, 30 April 2001, 515 Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, 190, 191, 192, 194, 216, 222, 246, 250, 251, 252, 253, 255, 258, 261, 263, 264, 265, 268,

xxxiii

274, 299, 300, 319, 323, 509, 567, 569, 571 Naletilic´ v. Croatia (App. No. 51891/99), 544 Ndayambaje (ICTR-98-42-T), Decision on the Defence Motion for the Provisional Release of the Accused, 21 October 2002, 391 Ndayambaje (ICTR-98-42-T), Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda Under Rules 4 and 73 of the Rules of Procedure and Evidence, 23 September 2004, 590 Netherlands v. Belgium, [1937] PCIJ Reports, Series A/B, No. 70, 103 Ngeze et al. (ICTR-96-11), 136, 182 Ngeze et al. (ICTR-97-27-I), Decision on the Prosecutor’s Request for Leave to Amend the Indictment, 5 November 1999, 136 Ngeze et al. (ICTR-96-11-AR72), Decision on the Interlocutory Appeals, 5 September 2000, 136 Ngeze et al. (ICTR-96-11-AR72), Joint Separate Opinion of Judge Lal Chand Vohrah and Judge Rafael Nieto-Navia, 5 September 2000, 135, 136, 137 Ngeze et al. (ICTR-96-11-AR72), Separate Opinion of Judge Shahabuddeen, 5 September 2000, 136 Nicaragua v. US (Merits), [1986] ICJ Reports 14, 243–245, 265 Nikolic´, Dragan (IT-94-2), 374, 541 Nikolic´, Dragan (IT-94-2-R61), Review of Indictment Pursuant to Rule 61, 20 October 1995, 163, 374, 382 Nikolic´, Dragan (IT-94-2-I), Order Confirming the Amended Indictment, 12 February 1999, 374

xxxiv

TA B L E O F C A S E S

Nikolic´, Dragan (IT-94-2-PT), Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, 540 Nikolic´, Dragan (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, 151, 381, 541, 542 Nikolic´, Dragan (IT-94-2-S), Sentencing Judgment, 18 December 2003, 73, 106, 352, 353, 427, 428, 466, 523, 554, 557, 566, 568, 569, 570, 572, 573, 574, 575 Nikolic´, Dragan (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, 23, 281, 427, 440, 545, 554, 558, 570, 583 Nikolic´, Dragan (IT-94-2-A), Partial Dissenting Opinion of Judge Shahabuddeen, 4 February 2005, 583 Nikolic´, Momir (IT-02-60 and IT-02-60/ 1), 73, 82, 210, 353, 554, 557 Nikolic´, Momir (IT-02-60-PT), Amended Plea Agreement, 533 Nikolic´, Momir (IT-02-60/1-T), Decision on Motion to Dismiss Charges Against Momir Nikolic´, 12 May 2003, 335, 372 Nikolic´, Momir (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, 69, 70, 513, 547, 553, 557, 558, 560, 573, 574 Niyitegeka (ICTR-96-14), 172, 180, 383–386, 533, 550 Niyitegeka (ICTR-96-14-T), Decision on the Prosecutor’s Amended Extremely Urgent Motion for the Deposition of a Detained Witness Pursuant to Rule 71, 4 October 2001, 476 Niyitegeka (ICTR-96-14-T), Decision to Adjourn Proceedings Due to the

Unavailability of Witnesses, 19 June 2002, 357, 470 Niyitegeka (ICTR-96-14-T), Decision on the Prosecutor’s Motion for Judicial Notice of Facts (Rule 94 of the Rules of Procedure and Evidence), 4 September 2002, 40, 491 Niyitegeka (ICTR-96-14-T), Order for the Transfer of Prosecution Witness KJ, 10 October 2002, 470 Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, 109, 180, 181, 182, 192, 194, 199, 299, 321, 516, 533, 552, 557, 568, 575, 576, 603 Niyitegeka (ICTR-96-14-A), Appellant’s Brief, 23 December 2003, 550 Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, 64, 81, 112, 162, 172, 218, 295, 444, 446, 466, 484, 550, 561 Niyonteze, Military Court of Cassation, 27 April 2001, 46 Norac (IT-04-76-I), Decision on the Prosecutor’s Motion to Oppose the Initial Appearance of Mirko Norac, 30 June 2004, 389 Norman (SCSL-03-08), 509–510, 534 Norman (SCSL-04-14), 531 Norman (SCSL-03-08-PT), Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman, 29 October 2003, 91, 411 Norman (SCSL-03-08-PT), Decision on the Applications for a Stay of Proceedings and Denial of Right to Appeal, 4 November 2003, 85, 404 Norman (SCSL-03-08-PT), Decision on Appeal by the Truth and Reconciliation Commission for

TA B L E O F C A S E S

Sierra Leone and Chief Samuel Hinga Norman JP Against the Decision of His Lordship, Mr Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing With Chief Samuel Hinga Norman JP, 28 November 2003, 120 Norman (SCSL-03-08-PT, SCSL-03-011PT, SCSL-03-012-PT), Decision and Order on Prosecution Motions for Joinder, 27 January 2004, 369 Norman (SCSL-03-14-I), Indictment, 4 February 2004, 279, 280, 312 Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence), 13 March 2004, 509 Norman (SCSL-04-14-AR72(E)), Separate Opinion of Justice Georey Robertson, 13 March 2004, 274, 506, 508, 509, 569 Norman (SCSL-04-14-PT), Norman – Decision on inter partes motion by Prosecution to freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank (SL) Limited or at any other Bank in Sierra Leone, 19 April 2004, 365 Norman (SCSL-04-14-PT), Judge Winter’s Response to Motion to Recuse her from Deliberating on the Preliminary Motion on the Recruitment of Child Soldiers, 14 May 2004, 516 Norman (SCSL-04-14-PT), Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers, 28 May 2004, 418, 516

xxxv

Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, 67, 93, 96, 285 Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May 2004, 82, 84, 285 Norman (SCSL-04-14-PT), Decision on the Application of Sam Hinga Norman for Self-Representation Under Article 17(4) (d) of the Statute of the Special Court, 8 June 2004, 531 Norman (SCSL-04-14-PT), Decision on Request by Samuel Hinga Norman for Additional Resources to Prepare his Defence, 23 June 2004, 610 Norman (SCSL-04-14-PT), Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 24 June 2004, 489, 490 Norman (SCSL-04-14-T), Sesay – Decision on Confidential Motion Seeking Disclosure of Documentation Relating to the Motion on the Recruitment of Child Soldiers, 28 July 2004, 516 Norman et al. (SCSL-04-14-PT), Ruling on the Issue of Non-Appearance of the First Accused Samual Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings, 1 October 2004, 410, 418, 422, 531, 570 Norman (SCSL-04-14), Decision Prohibiting Visits, 8 November 2004, 611

xxxvi

TA B L E O F C A S E S

Norman et al. (SCSL-04-14-T), Decision on Joint Motion by Sam Hinga Norman, Moinina Fofana and Allieu Kondewa Seeking Permission for Defence Investigators to Sit in Court During Closed Sessions, 28 February 2005, 494, 515 Norman (SCSL-04-14-T), Decision on Presentation of Witness Testimony on Moyamba Crime Base, 1 March 2005, 443 Norman et al. (SCSL-04-14-AR65), Fofana – Appeal Against Decision Refusing Bail, 11 March 2005, 390, 395, 458, 518 Norman et al. (SCSL-04-14-AR73), Fofana – Decision on Appeal Against Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 16 May 2005, 93, 478, 479, 489, 490, 491, 493 Norman (SCSL-04-14-AR73), Decision on Amendment of the Consolidated Indictment, 16 May 2005, 404 Norman (SCSL-04-14-AR73), Separate Opinion of Justice Robertson, 16 May 2005, 479, 488, 489, 493 Norman (SCSL-04-14-AR73), Decision on Amendment of the Consolidated Indictment, 17 May 2005, 81, 108, 524 North Sea Continental Shelf Cases, [1969] ICJ Reports 4, 98 Nsabimana et al. (ICTR-98-42-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002, 489, 491 Nsengiyumva (ICTR-96-12), 137

Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, 80, 113 Nsengiyumva (ICTR-96-12-A), Joint Separate and Concurring Opinion of Judge Wang and Judge NietoNavia, 3 June 1999, 88 Nsengiyumva (ICTR-96-15-A), Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, 79 Nsengiyumva (ICTR-96-12-I), Decision on the Defence Motions Objecting to the Jurisdiction of the Trial Chamber on the Amended Indictment, 13 April 2000, 137 Nsengiyumva (ICTR-96-12-I), Decision on the Defence Motion Raising Objections on Defects in the Form of the Indictment and to Personal Jurisdiction on the Amended Indictment, 12 May 2000, 180 Ntabakuze et al. (ICTR-97-34-T), Decision on the Defence Motion for Annulment of Proceedings, Release and Return of Personal Items and Documents, 25 September 1998, 377 Ntabakuze et al. (ICTR-97-34-I), Decision on the Defence Motion Requesting an Order for Separate Trials, 30 September 1998, 366 Ntagerura et al. (ICTR-99-46-T), Decision on Ntagerura’s Extremely Urgent Motion for Order to Transfer an Accused from the Detention Facility in order to Testify for the Defence, Pursuant to Rules 73 and 54 of the Rules of Procedure and Evidence, 16 April 2002, 206, 473

TA B L E O F C A S E S

Ntagerura et al. (ICTR-99-46-T), Judgment and Sentence, 25 February 2004, 180 Ntahobali et al. (ICTR-98-42-T), Oral Decision to Adjourn Trial, 19 June 2002, 470 Ntahobali et al. (ICTR-98-42-T), Decision on Ntahobali’s Motion to Rule Inadmissible the Evidence of Witness TN, 1 July 2002, 404, 405 Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17), 184, 199, 536 Ntakirutimana et al. (ICTR-96-10-T and ICTR-96-17-T), Decision on the Motions of the Accused for Replacement of Assigned Counsel, 11 June 1997, 525, 526 Ntakirutimana et al. (ICTR-96-10-T and ICTR-96-17-T), Decision on the Prosecutor’s Motion for Judicial Notice of Adjudicated Facts, 22 November 2001, 106, 491 Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, 180, 192, 198, 199, 200, 255, 258, 293, 303, 307, 322, 349, 368, 436, 512, 552, 557, 569, 576, 577 Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, 83, 112, 164, 168, 187, 200, 306, 307, 310, 311, 360, 361, 444, 446, 516, 520 In re Ntakirutimana, 998 F.Supp.1038 (SD TX, 1997), 357, 380 Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir., 1999), cert. denied, 528 US 1135 (2000), 357, 380 Ntuyahaga (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of Indictment Against

xxxvii

Marinko Katava, 19 December 1997, 375 Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999, 85, 106, 162, 363, 376, 407, 411, 440, 620 Ntuyahaga (ICTR-98-40-T), Declaration on a Point of Law by Judge Laı¨ty Kama, President of the Tribunal, Judge Lennert Aspergren and Judge Navanethem Pillay, 22 April 1999, 608 Ntuyahaga (ICTR-98-40-A), Decision Rejecting Notice of Appeal, 3 June 1999, 503 Nulyarimma v. Thompson, (1999) 96 FCR 153, 46 Nyiramasuhuko (ITCR-97-21 and ICTR98-42), 414 Nyiramasuhuko (ICTR-97-21-I), Decision on the Preliminary Motion by Defence Counsel on Defects in the Form of Indictment, 4 September 1998, 466 Nyiramasuhuko (ICTR-97-21-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2000, 462, 490 Nyiramasuhuko (ICTR-98-42-T), Transcript, 21 March 2002, 143, 403 Nyiramasuhuko (ICTR-98-42-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002, 40, 106, 491 Nyiramasuhuko (ICTR-97-21-T), Decision on the Application by Arse`ne Shalom Ntahobali for Review of the Registrar’s Decisions Pertaining to the Assignment of an

xxxviii

TA B L E O F C A S E S

Investigator, 13 November 2002, 527 Nyiramasuhuko (ICTR-98-42-T), Decision in the Matter of Proceedings under Rule 15 bis (D), 15 July 2003, 414 Nyiramasuhuko (ICTR-98-42-A15bis), Decision in the Matter of Proceedings Under Rule 15 bis (D), 24 September 2003, 413, 572 Nyiramasuhuko (ICTR-98-42-A15bis), Dissenting Opinion of David Hunt, 30 September 2003, 414 Nyiramasuhuko (ICTR-98-42-T), Decision on Defence Motions for Acquittal Under Rule 98 bis, 16 December 2004, 180 Obrenovic´ (IT-02-60-T), Plea Agreement, 533 Obrenovic´ (IT-02-60/2-S), Judgment, 10 December 2003, 574 Ojdanic´ (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, 617 Perera v. Australia (No. 536/1993), UN Doc. CCPR/C/53/D/536/1993, 28 March 1995, 440 Pinochet case (R v. Bartle and the Commissioner of Police for the Metropolis and others, ex parte Pinochet Ugarte), [1999] 2 All ER 97 (HL), 159, 621 Pinochet case (R v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2)), [1999] 1 All ER 577 (HL), 311, 622 Plavsˇic´ (IT-00-39 and IT-00-40/1), 565

Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, 299, 336, 413, 481, 533, 565, 568, 572, 573, 574, 575, 576, 577 Pohl case (United States v. Pohl et al., (1948) 5 TWC 1 (United States Military Tribunal)), 464 Presbyterian Church of Sudan v. Talisman Energy, 226 FRD 456 (SD NY, 2005), 45 R v. Bartle and the Commissioner of Police for the Metropolis and others, ex parte Pinochet Ugarte, [1999] 2 All ER 97 (HL), 159, 621 R v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2), [1999] 1 All ER 577 (HL), 311, 622 R v. Campbell, [2004] CarswellOnt 2170 (Ont. SCJ), 45 R v. Finta, [1994] 1 SCR 701, 44, 45, 173, 195 R v. Logan, [1990] 2 SCR 731, 313 R v. Rodney, [1990] 2 SCR 687, 313 Rajic´ (IT-95-12), Decision, 29 August 1995, 353 Rajic´ (IT-95-12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, 245, 346, 382, 620 In re Rauter, (1949) 16 ILR 526 (the Netherlands, Special Criminal Court), 279 Renzaho (ICTR-97-31-DP), Decision on the Prosecutor’s Request for the Extension of the Suspect’s Detention (Rule 40 bis (F) of the Rules of Procedure and Evidence), 4 November 2002, 379 Republic of the Congo v. France, 157

TA B L E O F C A S E S

In Re The Republic of Macedonia (IT-0255-MISC.6), Decision on the Prosecutor’s Request for Deferral and Motion for Order to the Former Yugoslav Republic of Macedonia, 4 October 2002, 386 Roper v. Simmons, 125 SCt 1183 (2005), 119 Ruggiu (ICTR-97-32), 426 Ruggiu (ICTR-97-32-I), Decision on the Defence Motion for Restitution of Personal Eects, 7 July 1998, 89, 358, 502 Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, 182, 194, 216, 217, 572, 573, 574, 576 Ruggiu (ICTR-97-32-T), Judgment, 1 June 2000, 426, 465, 567 Rusatira (ICTR-2002-80-I), Decisions on the Prosecutor’s ex parte Application for Leave to Withdraw the Indictment, 14 August 2002, 375 Rutaganda (ICTR-96-3), 117, 239, 461, 570 Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, 81, 95, 96, 164, 173, 175, 178, 190, 191, 192, 194, 199, 214, 222, 229, 230, 236, 237, 255, 258, 278, 293, 296, 298, 303, 305, 368, 385, 444–445, 465, 480, 485, 497, 546, 556, 566, 567, 568, 569, 571, 575, 576, 607 Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, 162, 231, 239, 340, 361, 444, 447, 462, 479, 484, 549, 561 Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003, 118 Rutaganda (ICTR-96-3-A), Separate Opinion of Judge Shahabuddeen, 26 May 2003, 440

xxxix

Rutaganda (ICTR-98-44A-A), Judgment, 23 May 2005, 449 Rutaganira (ICTR-95-1C-0022), Jugement portant condamnation, 14 March 2005, 426 Ruzindana. See Kayishema et al. Rwamakuba (ICTR-98-44), 370 Rwamakuba (ICTR-98-44-T), Decision on Andre´ Rwamakuba’s Motion for Severance, 12 December 2000, 370 Rwamakuba (ICTR-98-44-AR72.4), Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004, 94, 313 Sainovic´ et al. (IT-99-37-PT), Decision on Applications of Nikola Sainovic´ and Dragoljub Ojdanic´ for Provisional Release, 26 June 2002, 395 Sainovic´ et al. (IT-99-37-AR65), Decision on Provisional Release, 30 October 2002, 391 Sankoh (SCSL-03-02), 417 Sankoh (SCSL-02-I), Indictment, 3 March 2003, 219, 375 Sankoh (SCSL-03-02-PT), Withdrawal of Indictment, 8 December 2003, 270 Schonfeld et al., (1948) 11 LRTWC 64 (British Military Court), 301 Semanza (ICTR-97-20), 184, 200, 219, 324, 489, 543 Semanza (ICTR-97-20-A), Separate Opinion of Judge Shahabuddeen, 31 May 2000, 110 Semanza (ICTR-97-20), Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000, 489, 491

xl

TA B L E O F C A S E S

Semanza (ICTR-97-20-A), Arreˆt (Requeˆte en re´vision de la de´cision de la Chambre d’appel du 31 mai 2000), 4 May 2001, 451 Semanza (ICTR-96-4-A), Judgment, 1 June 2001, 300 Semanza (ICTR-97-20-T), Decision on the Prosecutor’s Motion for Leave to Call Rebuttal Evidence and the Prosecutor’s Supplementary Motion for Leave to Call Rebuttal Evidence, 27 March 2002, 429 Semanza (ICTR-97-20-T), Decision on Defence Motion for Leave to Call Rejoinder Witnesses, 30 April 2002, 461 Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, 65, 83, 109, 166, 169, 182, 183, 190, 192, 194, 197, 198, 200, 207, 210, 219, 220, 230, 236, 237, 268, 270, 292, 299, 303, 305, 307, 308, 319, 324, 463, 480, 548, 549, 552, 561, 568, 575, 603 Semanza (ICTR-97-20-T), Separate and Dissenting Opinion of Judge Pavel Dolenc, 15 May 2003, 435 Serushago (ICTR-98-39), 426, 562 Serushago (ICTR-98-39-T), Decision Relating to a Plea of Guilty, 14 December 1998, 335, 372 Serushago (ICTR-98-39-S), Sentence, 5 February 1999, 54, 162, 321, 426, 465, 546, 561, 562, 567, 568, 571, 572, 573, 574, 575, 576, 577 Serushago (ICTR-98-39-A), Decision, 6 April 2000, 577 Serushago (ICTR-98-39-A), Reasons for Judgment, 6 April 2000, 426 Sesay (SCSL-03-05-PT), Decision, 23 May 2003, 108

Sesay et al. (SCSL-03-05-PT, SCSL-0306-PT, SCSL-03-07-PT, SCSL-0309-PT, SCSL-03-10-PT, SCSL-0313-PT), Decision and Order on Prosecution Motions for Joinder, 27 January 2004, 369 Sesay (SCSL-04-15-AR15), Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, 13 March 2004, 417, 508, 516 Sesay (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, 213, 227, 270, 271, 279, 280, 281, 284 Sesay (SCSL-04-15-AR65), Decision on Appeal Against Refusal of Bail, 14 December 2004, 390 Sesay (SCSL-04-15-T), Ruling on the Issue of the Refusal of the Accused Sesay and Kallon to Appear for their Trial, 19 January 2005, 410, 418, 422, 570 Sˇesˇelj (IT-03-67), 365, 395, 417, 529, 530 Sˇesˇelj (IT-03-67-PT), Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Sˇesˇelj with his Defence, 9 May 2003, 494, 529, 621 Sˇesˇelj (IT-03-67-PT), Decision on Motion for Disqualification, 10 June 2003, 405, 418 Sˇesˇelj (IT-03-67-PT), Decision, 30 September 2003, 610, 611 Sˇesˇelj (IT-03-67-AR73.2), Decision on the Interlocutory Appeal Concerning the Denial of a Request for a Visit to an Accused in the Detention Unit, 29 January 2004, 611 Sˇesˇelj (IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning

TA B L E O F C A S E S

Jurisdiction, 31 August 2004, 188, 189 Sikirica et al. (IT-95-8), 104, 165, 170, 177, 401 Sikirica et al. (IT-95-8-I), Indictment, 21 July 1995, 177 Sikirica et al. (IT-95-4-PT, IT-95-8-PT), Order on the Prosecutor’s Requests for the Assignment of a Confirming Judge, 26 August 1998, 363 Sikirica et al. (IT-95-8-T), Decision on Prosecution’s Application to Admit Transcripts under Rule 92 bis, 23 May 2001, 477 Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, 73, 165, 169, 170, 177, 432, 462, 481 Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, 389, 466, 533, 549, 563, 568, 573, 574, 575 Sikirica et al. (IT-95-8-S), Order of the President on the Early Release of Dragan Kolundzija, 5 December 2001, 116 Simba (ICTR-2001-76-I), Decision on Motion to Amend Indictment, 26 January 2004, 372 Simba (ICTR 01-76-I), Decision on Preliminary Defence Motion Regarding Defects in the Form of the Indictment, 6 May 2004, 137 Simic´ et al. (IT-95-9 and IT-95-9/2), 390 Simic´ et al. (IT-95-9-PT), Decision on Defence to Sever Defendants and Counts, 15 March 1999, 371 Simic´ et al. (IT-95-9-PT), Decision on Pre-trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of

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the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999, 245, 489, 490, 491, 591 Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic, 25 March 1999, 615 Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999, 86, 97, 171, 411, 459, 495 Simic´ et al. (IT-95-9-PT), Separate Opinion of Judge David Hunt on Prosecutor’s Motion, 27 July 1999, 97, 106, 601 Simic´ et al. (IT-95-9-PT), Decision on (1) Application by Stevan Todorovic´ to re-open the Decision of 27 July 1999, 107 Simic´ et al. (IT-95-9-R77), Order for Limited Access to Registry Files, 1 November 1999, 495 Simic´ et al. (IT-95-9-PT), Decisions on Simo Zaric´’s and Miroslav Tadic´’s Applications for Provisional Release, 4 April 2000, 87, 393 Simic´ et al. (IT-95-9-AR65), Decision on Application for Leave to Appeal, 19 April 2000, 263, 442 Simic´ et al. (IT-95-9-AR65), Decision on Milan Simic´’s Application for Provisional Release, 29 May 2000, 390, 393 Simic´ et al. (IT-95-9-PT), Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross, 7 June 2000, 374, 621

xlii

TA B L E O F C A S E S

Simic´ et al. (IT-95-9-R77), Judgment in the Matter of Contempt Allegations Against an Accused and his Counsel, 30 June 2000, 114, 464, 615 Simic´ et al. (IT-95-9-PT), Decision on Motion for Judicial Assistance to be Provided by SFOR and Others, 18 October 2000, 93, 469 Simic´ et al. (IT-95-9-PT), Separate Opinion of Judge Robinson, 18 October 2000, 97 Simic´ et al. (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, 335, 372, 465, 557, 567, 568, 570, 573, 576, 578 Simic´ et al. (IT-95-9-T), Reasons for Decision on Prosecution’s Motion to Use Telephone Interviews, 11 March 2003, 520 Simic´ et al. (IT-95-9-T), Judgment, 17 October 2003, 204, 313, 360 Sljivancˇanin (IT-95-13/1-PT), Registrar’s Decision, 9 July 2003, 246, 526 Sljivancˇanin (IT-95-13/1-PT), Decision on Assignment of Counsel, 20 August 2003, 527 South-West Africa Case, [1950] ICJ Reports 103, 148 SS Lotus (France v. Turkey), [1927] PCIJ Ser. A (Judgments) No. 10 (Judgment No. 9) (1929), 67, 154, 232–236, 532 Stakic´ et al. (IT-97-24), 58, 183, 204, 224, 429, 435, 456 Stakic´ et al. (IT-97-24- PT), Second Amended Indictment, 5 October 2001, 177 Stakic´ et al. (IT-97-24-T), Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002, 81, 101, 164, 199, 224, 246, 299, 320

Stakic´ et al. (IT-97-24-T), Judgment, 31 July 2003, 163, 165, 175, 177, 204, 221, 298, 302, 304, 306, 313, 314, 315, 316, 323, 435, 462, 481, 485, 558 Stankovic´ (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11 bis, 17 May 2005, 387, 409, 544 State v. Wouter Basson, [2004] CCT 30/03, 45 Streletz, Kessler & Krenz v. Germany, [2001] ECHR 230, 22 March 2001, 63 Strugar (IT-01-42), 231, 262, 263, 317, 396, 435, 607 Strugar (IT-01-42-PT), Decision on Defence Preliminary Motion Challenging Jurisdiction, 7 June 2002, 277 Strugar (IT-01-42-T), Decision on the Defence Objection to the Prosecution’s Opening Statement Concerning Admissibility of Evidence, 22 January 2004, 136, 218 Strugar (IT-01-42-T), Decision re the Defence Motion to Terminate Proceedings, 26 May 2004, 106, 396 Strugar (IT-01-42-T), Judgment, 31 January 2005, 95, 96, 98, 133, 185, 260, 262, 263, 301, 317, 347, 368, 435, 442, 573, 576, 577 Sullivan v. Louisiana, 113 SCt 2078 (1993), 464 Suresh v. Canada, [2002] CarswellNat 7 (SCC), 45, 396 SW v. United Kingdom, Series A, No. 335B, 63, 65, 209, 218 Tadic´, Dusˇko (IT-94-1), 23, 24, 49, 53, 61, 67, 77, 80, 94, 99, 114, 124, 125, 128, 187, 197, 200, 211, 215, 228,

TA B L E O F C A S E S

233–236, 237, 238, 242, 243, 245, 248, 256, 258, 265, 267, 275, 295, 301, 309, 310, 312, 314, 352, 369, 398, 446, 448, 449, 451, 464, 475, 480, 493, 497, 527, 536, 551, 561, 567, 568, 580, 619 Tadic´, Dusˇko (IT-94-1-D), Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral to the Competence of the International Tribunal in the Matter of Dusˇko Tadic´, 8 November 1994, 384, 619 Tadic´, Dusˇko (IT-94-1-T), Decision on the Defence Motion on Jurisdiction, 10 August 1995, 50, 192 Tadic´, Dusˇko (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, 48, 79, 92, 117, 474, 503 Tadic´, Dusˇko (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, 23, 50, 51, 52, 53, 61, 64, 77, 80, 81, 82, 92, 94, 95, 96, 98, 101, 124, 125, 128, 152, 153, 172, 188, 221, 228, 229, 233, 234, 237, 238, 257, 258, 265, 268, 336, 449, 455, 534, 535, 542 Tadic´, Dusˇko (IT-94-1-AR72), Separate Declaration of Judge J. Descheˆnes on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, 245, 432, 591 Tadic´, Dusˇko (IT-94-1-AR72), Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, 81, 233, 242

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Tadic´, Dusˇko (IT-94-1-AR72), Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, 3, 82, 83, 97, 620 Tadic´, Dusˇko (IT-94-1-AR72), Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, 3, 63, 83, 620 Tadic´, Dusˇko (IT-94-1), Decision on the Defence Motions to Summon and Protect Defence Witnesses and on the Giving of Evidence via Videolink, 25 June 1996, 475 Tadic´, Dusˇko (IT-94-1), Decision on the Defence Motion on Hearsay, 5 August 1996, 479, 480 Tadic´, Dusˇko (IT-94-1-T), Separate Opinion of Judge Stephen on Prosecution Motion for Production of Defence Witness Statements, 27 November 1996, 398 Tadic´, Dusˇko (IT-94-1-T), Opinion and Judgment, 7 May 1997, 3, 83, 173, 195, 230, 236, 243, 265, 266, 267, 301, 303, 485, 497, 620 Tadic´, Dusˇko (IT-94-1-T), Sentencing Judgment, 14 July 1997, 299, 569, 570, 571, 572, 575, 576, 577 Tadic´, Dusˇko (IT-94-1-A), Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, 81, 87, 451, 483 Tadic´, Dusˇko (IT-94-1-A), Judgment, 15 July 1999, 24, 45, 66, 78, 79, 80, 82, 83, 93, 95, 96, 100, 101, 106, 107, 110, 114, 119, 166, 177, 189, 191, 194, 195, 196, 197, 242, 243, 244, 245, 248, 281, 295, 297, 301, 307, 309, 310,

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TA B L E O F C A S E S

311, 313, 440, 446, 460, 462, 464, 484, 494, 513, 514, 553, 580 Tadic´, Dusˇko (IT-94-1-A), Declaration of Judge Nieto-Navia, 15 July 1999, 535, 536 Tadic´, Dusˇko (IT-94-1-A), Order Remitting Sentencing to a Trial Chamber, 10 September 1999, 448 Tadic´, Dusˇko (IT-94-1-T), Separate Opinion of Judge Robinson, 11 November 1999, 562 Tadic´, Dusˇko (IT-94-1-A and IT-94-1Abis), Judgment in Sentencing Appeals, 26 January 2000, 116, 281, 545, 551, 553, 556, 558, 561, 562, 564, 568, 569, 583, 607 Tadic´, Dusˇko (IT-94-1-AR77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, 87, 106, 114, 115, 449, 615 Tadic´, Dusˇko (IT-94-1-A-AR77), Decision on the Application for Leave to Appeal, 25 October 2000, 449 Tadic´, Dusˇko (IT-94-1-A-AR77), Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001, 88, 102, 449 Tadic´, Dusˇko (IT-94-1-R), Decision on Motion for Review, 30 July 2002, 450, 451 Tadic´, Miroslav (IT-95-9), Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadic´, 24 June 2004, 582 Tagaga v. INS, 228 F.3d 1030 (9th Cir., 2000), 45 Taylor (SCSL-03-01), 328

Taylor (SCSL-03-01-I), Indictment, 3 March 2003, 270, 311, 312, 373 Taylor (SCSL-03-01-I), Indictment, 7 March 2003, 284 Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, 54, 55, 57, 60, 67, 328 Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, 197, 335, 372, 413, 423, 556, 557, 563, 570, 572, 573, 574, 575, 578, 580 United Kingdom v. Chusaburo, (1947) 3 LRTWC 76 (British Military Court), 334 United Kingdom v. Tesch et al. (Zyklon B case), (1947) 1 LRTWC 93 (British Military Court), 306, 307 United States of America v. Alsto¨tter et al. (Justice trial), (1948) 3 TWC 1, 6 LRTWC 1, 14 ILR 278, 501 United States of America v. Brandt et al., (1948) 2 TWC 1 (United States Military Tribunal), 464 United States of America v. Ohlendorf et al. (Einsatzgruppen trial), (1949) 4 TWC 1, 331 United States of America v. Pohl et al., (1948) 5 TWC 1 (United States Military Tribunal), 464 United States of America v. von Leeb et al. (High Command trial), (1948) 12 LRTWC 1, 11 TWC 105, 279, 339, 462 United States of America v. von Weizsaecker et al., (1948) 14 TWC 1 (United States Military Tribunal), 464 United States of America v. Wilhelm List et al. (Hostage case), (1948) 8 LRTWC 34, 11 TWC 757, 105, 256 United States of America v. Yamashita, (1948) 4 LRTWC 1, 315

TA B L E O F C A S E S

Vasiljevic´ (IT-98-32), 200, 308, 341, 445 Vasiljevic´ (IT-96-21-A), Judgment, 20 February 2001, 466 Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, 66, 93, 181, 194, 195, 201, 216, 217, 218, 222, 237, 269, 296, 303, 304, 307, 313, 333, 334, 341, 410, 418, 422, 461, 466, 480, 481, 516, 533, 557, 569, 570, 575, 577, 601 Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, 216, 308, 429, 435, 437, 444, 445, 446, 467, 570 Vasiljevic´ (IT-98-32-A), Separate and Dissenting Opinion of Judge Shahabuddeen, 25 February 2004, 112, 332 Victor v. Nebraska, 127 L.Ed.2d 583 (1994), 464 Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F.Supp.2d 1285 (SD FL, 2003), 45

xlv

WBE v. The Netherlands (No. 432/1990), UN Doc. CCPR/C/46/D/432/1990, 538 Williams v. Florida, 399 US 78 (1970), 398 In re Yamashita, 327 US 1 (1945), 315 Yamashita case (United States of America v. Yamashita, (1948) 4 LRTWC 1), 315 Yerodia case. See Democratic Republic of Congo v. Belgium Zigiranyirazo (ICTR-2001-73-I), Decision on Prosecutor’s Request for Leave to Amend the Indictment and on Defence Urgent Motion for an Order to Disclose Supporting Material in Respect of the Prosecutor’s Motion for Leave to Amend the Indictment, 15 October 2003, 372 Zyklon B case (United Kingdom v. Tesch et al., (1947) 1 LRTWC 93 (British Military Court)), 302, 306

TABLE OF LEGISLATIVE PROVISIONS

Additional Protocols to the Geneva Conventions Additional Protocol I article 1, 242 article 20, 344 article 40, 179 article 48, 346 article 50, 190, 206, 250 article 51, 220, 344, 346 article 85(5), 228, 511 article 86, 315, 318, 324 article 86(2), 315 article 87, 99 Additional Protocol II article 1(1), 278 article 3, 77, 93, 95, 203 article 4, 151 article 4(1), 179 article 4(2), 278 article 4(2)(c), 271, 449 article 4(a), 269 article 5, 202 article 17(1), 204 article 86, 99 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis. See Charter of the International Military Tribunal Alien Tort Claims Act (US), 45 Allied Control Council Law No. 10, 98, 206, 209, 261–262

American Convention on Human Rights (1978), 105, 130, 560 Basic Principles on the Independence of the Judiciary, 506 Canadian Charter of Rights and Freedoms, 460 Charter of Fundamental Rights article 19, 8 Charter of the International Military Tribunal article 1, 145 article 6(b), 98, 213, 227, 228, 258, 261, 264, 402 article 6(c), 77, 186–187 article 7, 159, 327, 366 article 8, 45, 329 article 19, 452 article 21, 488 article 26, 439 article 27, 546 Charter of the International Military Tribunal for the Far East article 16, 546 article 17, 439 Charter of the United Nations. See UN Charter Code of Crimes against the Peace and Security of Mankind (1996), 165, 198, 199, 305 Convention Against Torture and Other Cruel, Inhuman, and Degrading

xlvi

TA B L E O F L E G I S L AT I V E P R O V I S I O N S

Treatment or Punishment (1984), 9, 68, 95, 158, 206, 207 Convention for the Prevention and Punishment of the Crime of Genocide, 1948 (Genocide Convention) article 1, 152 article 5, 68 article 7, 327 article II, 25, 95, 172, 434 article III, 95, 100, 178, 183, 290 article IV, 99 article VI, 11, 157 Convention for the Protection of Human Rights and Fundamental Freedoms. See European Convention on Human Rights Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 577 Convention on the Rights of the Child, 140 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1975), 205 European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms), 95, 97, 105, 250, 474, 518, 521, 542, 543 Geneva Conventions 1929, articles 2, 3, 4, 46, and 51, 227 Additional Protocols. See Additional Protocols to the Geneva Conventions

xlvii

common article 3, 61, 77, 99, 265–274, 501 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) article 2, 151, 242 article 49, 158, 241 article 51, 77, 93 Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949) article 2, 242 article 50, 77, 93, 158, 241 Convention Relative to the Protection of Civilian Persons in Time of War (1949) article 2, 242 article 4, 247 article 27, 273 article 49(2), 204 article 146, 158, 241 article 147, 77, 93 Convention Relative to the Treatment of Prisoners of War (1949) article 13, 344, 601 article 49, 204 article 51, 202 article 129, 158, 241 article 130, 77, 93 Geneva Conventions Act 1962 (Ireland), 274 Genocide Convention. See Convention for the Prevention and Punishment of the Crime of Genocide, 1948 Hague Conventions 1899, 255, 259

xlviii

TA B L E O F L E G I S L AT I V E P R O V I S I O N S

fourth Convention of 1907 article 2, 231 articles 46, 50, 52, and 56, 227 Regulations annexed to, 9, 255, 258–260, 277, 280, 285

Lome´ Peace Agreement (1999), 34–36, 37, 337

ICTR Statute. See Statute of the International Criminal Tribunal for Rwanda ICTY Statute. See Statute of the International Criminal Tribunal for the former Yugoslavia Inter-American Convention to Prevent and Punish Torture (1985), 190, 206, 250 International Convention for the Suppression of Terrorist Bombings, 309 International Court of Justice, Statute of the, 75, 91, 102, 104, 107, 110, 221 International Covenant on Civil and Political Rights (1966) article 2(1), 542 article 6(6), 546 article 9(2), 520 article 9(3), 393, 517, 521 article 9(4), 539 article 9(5), 537 article 10(3), 130, 556, 560 article 14, 117, 124, 234, 289, 419, 449, 463, 501, 505, 518, 523, 535, 539 article 14(1), 511 article 14(5), 99, 102, 117, 410, 438, 449, 484, 533, 535, 597 article 14(6), 537, 538, 576 article 14(7), 127, 535 article 15(2), 61, 105 International Criminal Court, Statute of. See Rome Statute of the International Criminal Court

Nuremberg Charter. See Charter of the International Military Tribunal

Lausanne, Treaty of (1923), 10 Lieber Code (1863), 98, 206, 231, 254

Malicious Damage Act 1861 (Sierra Leone), 152

Prevention of Cruelty to Children Act 1926 (Sierra Leone), 119, 152 Rome Statute of the International Criminal Court article 5(1), 228 article 7, 187, 211 article 7(1), 192, 195, 333 article 7(1)(a), 198 article 7(1)(c), 202 article 7(1)(d), 224 article 7(1)(h), 215 article 7(2)(d), 203, 204 article 7(2)(f), 214 article 8, 228, 261, 437 article 8(1), 230 article 8(2)(b), 255, 260, 276 article 8(2)(c), 268, 269, 279, 422 article 8(2)(c)–(f), 236 article 8(2)(e), 255, 268, 272, 422 article 8(2)(e)–(f), 260, 261 article 8(2)(f), 278 article 10, 193 article 17, 126, 144 article 21, 76 article 21(1)(b), 153 article 21(3), 117 articles 22–33, 289 article 22(2), 81 article 25, 309 article 25(c)(3), 228, 304 article 26, 140 article 27, 47, 99, 327, 328, 329 article 28, 315, 321

TA B L E O F L E G I S L AT I V E P R O V I S I O N S

article 30, 167 article 31, 216, 325, 331, 332, 333, 334, 335 article 31(1)(a), 333 article 31(1)(c), 228 article 31(1)(d), 332 article 32, 337 article 33(1), 330 article 36(9)(a), 93, 491 article 46, 510 article 51(3), 86 article 51(5), 87 article 53(3), 376 article 67(1)(e), 446, 468 article 72, 485, 486 article 76, 429 article 77, 546 article 77(1)(a), 550 article 77(1)(b), 219, 550 article 81, 440 article 101, 374 Rwandan Penal Code, 156, 173, 306 SCSL Statute. See Statute of the Special Court for Sierra Leone Se`vres, Treaty of (1920), 10 Slavery Convention (1926), 201 Special Court Act (Sierra Leone), 58 Statute of the International Court of Justice, 75, 91, 102, 104, 107, 110, 221 Statute of the International Criminal Court. See Rome Statute of the International Criminal Court Statute of the International Criminal Tribunal for Rwanda (ICTR Statute) article 2, 151, 161, 181 article 2(3)(b), 137 article 2(3)(e), 182 article 3, 151, 179, 187, 196, 197, 219, 254, 375 article 3(h), 77, 215, 219, 375

xlix

article 4, 77, 93, 99, 151, 233, 237, 239, 268, 551 article 4(e), 211, 213, 215 article 5, 139 article 6, 139, 290 article 6(1), 80, 182, 183, 303, 311, 362 article 6(2), 57, 328, 329, 465, 566 article 6(3), 294, 362 article 6(4), 465, 567 article 7, 131, 134, 289–292 article 8, 123 article 8(2), 58 article 9, 127, 536 article 9(1), 383 article 9(2), 377 article 10(c), 607 article 12quater, 597 article 12(1), 116 article 12(3), 598 article 13(1), 598 article 14, 75, 76, 85, 348 article 15(4), 601 article 16(1), 607 article 16(3), 599, 608 article 17(2), 358 article 17(3), 592 article 17(3)(f), 358 article 17(4), 353 article 18, 377, 432 article 18(1), 466 article 18(2), 148, 357, 364 article 19, 410 article 19(1), 340, 473, 549 article 19(2), 419 article 19(3), 388 article 20, 96, 117, 502 article 20(1), 511 article 20(2), 514 article 20(3), 293 article 20(3)(a), 592 article 20(3)(f), 592 article 20(4)(a), 519 article 20(4)(b), 513

l

TA B L E O F L E G I S L AT I V E P R O V I S I O N S

article 20(4)(c), 454, 521 article 20(4)(d), 420, 523 article 20(4)(e), 446, 468 article 20(4)(f), 531 article 20(4)(g), 532 article 21, 515 article 21(1), 74 article 21(4)(e), 513 article 22(2), 432 article 23(1), 119 article 23(2), 555 article 23(3), 551 article 24, 546 article 24(1), 440 article 25, 450 article 26, 578 article 26(2), 581 article 27, 582, 583, 599 article 28(1), 79 article 28(2), 467 article 30, 238, 622 article 31, 590 article 34(2), 599 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute) article 1, 130, 131, 132 article 2, 65, 93, 151, 240–243, 249, 292, 294, 296, 345, 360, 371 article 2(a), 437 article 3, 32, 76, 94–95, 151, 213, 215, 240, 255–269, 274, 275, 345, 437 article 4, 151, 161 article 4(2), 169 article 4(2)(c), 163 article 4(3), 181 article 4(3)(b), 137 article 5, 151, 186–189 article 5(e), 205 article 5(h), 77, 215 article 6, 139, 290 article 7, 139, 289, 328, 330

article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article

7(1), 183, 296–297, 324, 362 7(2), 57, 465, 566 7(3), 101, 294, 362 7(4), 329, 465, 567 8, 131 9, 123 9(2), 58, 383 10, 127, 536 10(2), 377 10(3), 551 11(c), 607 12(2), 593 12(3), 599 13ter(2), 508 13quater, 597 13(1), 116 13(2)(d), 595 13(3), 598 14(1), 598 14(2), 599 14(3), 593, 594, 599 14(4), 594 14(5), 594, 599 14(7), 594 15, 75, 76, 85, 348 16(1), 600, 607 16(2), 600 16(3), 600 16(4), 600, 601 16(5), 600 17(1), 607 17(3), 599, 608 18, 348 18(2), 358 18(3), 592 18(3)(f), 358 18(4), 353 19, 348, 377 19(1), 466 19(2), 148, 364 20, 348, 410 20(1), 473 20(2), 419

TA B L E O F L E G I S L AT I V E P R O V I S I O N S

article article article article article article article article article article article

20(3), 388 21, 96, 117, 369, 502, 515 21(1), 511 21(2), 514 21(3), 293 21(3)(a), 592 21(3)(f), 592 21(4)(a), 519 21(4)(b), 513 21(4)(c), 454, 521 21(4)(d), 349, 420, 512, 523, 528 article 21(4)(e), 468, 513 article 21(4)(f), 531 article 21(4)(g), 486, 532 article 22, 515, 611 article 23(2), 432 article 24(1), 74, 119 article 24(2), 555 article 24(3), 551 article 25, 444, 514, 546 article 25(1), 440 article 25(2), 449 article 26, 450 article 27, 578, 581 article 27(2), 581 article 28, 581, 582, 583, 599 article 29, 356, 486 article 29(1), 79 article 29(2), 467 article 31, 588 article 32, 622 article 33, 590 Statute of the Special Court for Sierra Leone (SCSL Statute) article 1, 145 article 1(1), 74, 153, 354 article 1(2), 143–144 article 2, 151, 187 article 2(e), 213 article 2(g), 212 article 2(h), 77, 215

article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article article

3, 77, 93, 151, 268, 276 3(e), 211 3(g), 213 4, 151, 254, 282 5, 74, 119, 151 6, 139, 140–142, 290 6(1), 362, 369 6(2), 465, 566 6(3), 294, 362 6(4), 329, 465, 567 7, 140 8(2), 123, 383 9, 127, 536 10, 337–339 12(3), 598 12(4), 438, 597 13(2), 116, 142 14, 76, 85, 135, 348 14(1), 75, 76 14(2), 74, 75, 76, 119 15(3), 601 15(4), 142, 600 15(5), 142 16(1), 473 16(3), 599, 608 17, 96, 117, 502 17(1), 511 17(2), 514 17(3), 293 17(4)(a), 519, 592 17(4)(b), 513 17(4)(c), 454, 521 17(4)(d), 420, 523, 531 17(4)(e), 446, 468 17(4)(f), 358, 531, 592 17(4)(g), 532 19(1), 119, 546 19(2), 555 19(3), 551 20(1), 440 20(3), 119 21, 450

li

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article 21(4)(e), 513 article 22, 578 article 22(2), 581 article 23, 582, 583, 599 article 24, 591 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956), 213 Tokyo Charter. See Charter of the International Military Tribunal for the Far East Torture Victims Protection Act (US), 45 UN Charter article 1, 55 article 2(7), 93, 124 article 7(2), 587 article 8, 587 article 17, 622 article 25, 78 article 28, 22 article 29, 49, 51, 78, 587 article 39, 32, 51, 55, 60 article 41, 22, 55, 60 article 42, 51 article 51, 336 article 92, 111 article 103, 93 Chapter VI, 33 Chapter VII, 5, 30, 33, 40, 48–53, 55, 78, 92, 124, 134, 228, 304, 393 UN Security Council Resolutions 674, 16, 231 757, 16 764, 16, 241 771, 16, 231, 241 780, 14, 17, 16 807, 3 808, 20, 40, 48, 69, 143, 145, 403

827, 4, 8, 22, 40, 52, 78, 133, 138, 554, 555, 588 857, 23, 595 877, 23, 602 912, 15, 25 918, 26 925, 26, 161 935, 27, 330 936, 23, 602 955, 4, 8, 29, 40, 69, 135, 138, 162, 588 978, 356 989, 595 1019, 356 1047, 602 1104, 595 1165, 587, 594 1166, 587, 594 1191, 595 1200, 595 1207, 356 1215, 410, 589 1259, 603 1315, 36, 55, 60, 70, 72, 265, 454 1329, 41, 133, 147, 508, 587, 594, 596, 602, 605 1340, 595 1346, 56 1347, 595 1385, 139 1411, 180, 595 1422, 144 1431, 42, 587, 596 1449, 595 1481, 587, 597 1487, 144 1492, 595 1503, 4, 42, 43, 152, 587, 601 1504, 601 1505, 601 1512, 43, 587, 597 1534, 43, 148, 355, 356, 408 1564, 167

TA B L E O F L E G I S L AT I V E P R O V I S I O N S

1567, 595 1593, 7, 156 1597, 509, 587, 597 3453, 588 Universal Declaration of Human Rights, 61, 97, 225, 511

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Versailles, Treaty of, 9, 226, 227, 509 Vienna Convention on the Law of Treaties, 54, 79–81, 100, 101, 571 Vienna Declaration and Plan of Action, 1943, 8

ABBREVIATIONS

CSCE GA ICC ICJ ICRC ICTR ICTY ILC ILR IMT LRTWC NATO NGO OSCE OTP RPE RUF SC SCSL SFOR TWC UNTAES

Conference for Security and Cooperation in Europe General Assembly International Criminal Court International Court of Justice International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Commission International Law Reports International Military Tribunal Law Reports of the Trials of the War Criminals North Atlantic Treaty Organisation non-governmental organisation Organisation for Security and Cooperation in Europe OYce of the Prosecutor Rules of Procedure and Evidence Revolutionary United Front Security Council Special Court for Sierra Leone Multinational Stabilisation Force Trials of the War Criminals United Nations Transitional Administration in Eastern Slavonia

liv

PA R T I Establishment of the tribunals

1 Creation of the tribunals

The United Nations was not directly involved in the Nuremberg trial of the major war criminals. While the founders of the United Nations were meeting in San Francisco, in June 1945, another conference was underway in London, leading to the establishment of the International Military Tribunal. Nor was there any United Nations participation in the subsequent proceedings organised by the occupation forces, or in the corresponding international court established in Tokyo. Not that the United Nations was ever hostile to the idea of international criminal justice. At the ﬁrst session of the General Assembly, which was held in the weeks following the Nuremberg judgment, a resolution was adopted aYrming the principles established in the Charter of the International Military Tribunal.1 For a few years, the United Nations encouraged the development of an international criminal court through a treaty,2 a measure called for in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.3 In 1954, it suspended work on the project for more than three decades. The United Nations always viewed the role of an international criminal court as standing outside the organisation as such, rather than as an organ within its own structure, as is the case with the International Court of Justice. Then, within a few weeks, in early 1993, as war raged in Europe for the ﬁrst time since 1945, a proposal that the Security Council create an ad hoc international criminal tribunal gained inexorable momentum. On 22 February 1993, the United Nations Security Council decided to establish the International Criminal Tribunal for the former Yugoslavia.4 It was born ‘out of the utter despair of the international community as to how to manage

1

2

3

4

‘AYrmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal’, GA Res. 95(I). See, e.g., ‘Report of the Committee on International Criminal Jurisdiction’, UN Doc. A/2136 (1952); ‘Report of the Committee on International Criminal Jurisdiction’, UN Doc. A/2645 (1954) Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277, art. 6. UN Doc. S/RES/807 (1993).

3

4

E S TA B L I S H M E N T O F T H E T R I B U NA L S

these unmanageable conﬂicts in the Balkans’, wrote Louise Arbour, who served as the Tribunal’s Prosecutor from 1996 to 1999.5 The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY) was formally established by Resolution 827 of the Security Council, adopted without a vote by general agreement of the ﬁfteen members on 25 May 1993. The Statute of the International Criminal Tribunal for the former Yugoslavia is annexed to Security Council Resolution 827. Little over a year later, the genocidal massacre of hundreds of thousands of Rwandan Tutsis, witnessed at close hand by a peacekeeping mission mandated by the Security Council only months earlier, prompted the Security Council to establish a second international tribunal, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (ICTR). Based largely on the model of the ICTY, and initially sharing with it both the Prosecutor and the Appeals Chamber,6 the International Criminal Tribunal for Rwanda was created by Resolution 955 of the Security Council, adopted 8 November 1994; its Statute was annexed to the resolution. Rwanda, which by chance was serving a two-year term as one of the Council’s ten elected members, voted against the resolution in order to express its discontent with certain provisions of the Statute.7 Following the creation of the ICTY and the ICTR, there were many calls for the establishment of other ad hoc tribunals by the Security Council. For example, in 1999 a group of three experts appointed by the Secretary-General of the United Nations proposed that the Council create an international tribunal to deal with crimes committed by the Khmer Rouge in Cambodia between 1975 and 1979.8 An International Commission of Inquiry on East Timor, established by the United Nations Commission on Human Rights, found ‘patterns of gross violations of human rights and breaches of humanitarian law’ and concluded that an ‘international human rights tribunal . . . to try and sentence those accused’ should be established.9 In June 2000, the 5

6

7 8

9

Louise Arbour, ‘Crimes against Women under International Law’, (2003) 21 Berkeley Journal of International Law 196. The Security Council subsequently modiﬁed the scheme to provide for separate prosecutors: UN Doc. S/RES/1503 (2003), para. 8. This is discussed at p. 601. UN Doc. S/PV.3453. ‘Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135’, UN Doc. A/53/850, annex, para. 148. ‘Report of the International Commission of Inquiry on East Timor to the SecretaryGeneral’, UN Doc. A/54/726-S/2000/59, annex, para. 153.

C R E AT I O N O F T H E T R I B U N A L S

5

Government of Sierra Leone requested that the United Nations participate in the establishment of an international tribunal to deal with the civil war in that country.10 In August 2000, warring parties in Burundi reached a peace agreement that called upon the government to request that the Security Council establish an international criminal tribunal.11 In March 2005, the United States of America presented a draft resolution to the Security Council calling for the establishment of an international criminal tribunal for Sudan.12 But aside from the Yugoslavia and Rwanda tribunals, the Security Council has balked at using its Chapter VII powers to establish additional ad hoc judicial institutions. Acting more cautiously, on 14 August 2000, the Council requested the Secretary-General to proceed with the negotiation of an agreement with the Government of Sierra Leone to establish an ‘independent special court’. Unlike the ICTY and the ICTR, the body was not to be created by resolution of the Council acting under Chapter VII, but pursuant to a bilateral treaty. Nevertheless, the Council asked the Secretary-General to consider whether the special court might also use the Appeals Chamber of the two existing ad hoc tribunals, a proposal that was rejected after stern protests from the presidents of those bodies. On 16 January 2002, an agreement was signed between the Government of Sierra Leone and the United Nations giving birth to the Special Court for Sierra Leone (SCSL). These three ad hoc international tribunals, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone, created by the United Nations either through resolution of the Security Council or by treaty, are the subject matter of this book. Other United Nations initiatives, sometimes described as ‘hybrid courts’, have brought an international component to what remain essentially national prosecutions.13 In 1999, in both Kosovo and East 10

11 12 13

‘Letter of 12 June 2000 from the President of Sierra Leone to the Secretary-General and the Suggested Framework attached to it’, UN Doc. S/2000/786, annex. ‘Accord d’Arusha pour la paix et la Reconciliation au Burundi’, 28 August 2000, art. 6(11). UN Doc. S/PV.5158 (2005). Laura A. Dickinson, ‘The Promise of Hybrid Courts’, (2003) 97 American Journal of International Law 295: ‘Such courts are ‘‘hybrid’’ because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards.’ On the hybrid courts, see also: Daryl A. Mundis, ‘New Mechanisms for the Enforcement of International Humanitarian Law’, (2001) 95 American Journal of International Law 934; Kai Ambos and Mohamed Othmann, eds., New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, Freiburg im Breisgau: MaxPlanck-Institut fu¨r Ausla¨ndisches und Internationales Strafrecht, 2003; Cesare P. R. Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’, (1999) 31 New York University Journal of International Law and Policy 709; David Turns,

6

E S TA B L I S H M E N T O F T H E T R I B U N A L S

Timor, so-called ‘executive missions’ established by the United Nations in order to exercise the basic attributes of government led to prosecution of international crimes – genocide, crimes against humanity and war crimes – in proceedings involving non-national personnel, including expatriate judges, sometimes serving alongside their national counterparts in mixed panels.14 Yet another dimension of this internationalisation of post-conﬂict15 criminal justice was reached when the United Nations negotiated an accord with the Government of Cambodia providing for ‘mixed tribunals’, composed of judges and prosecutors appointed by either the government or the United Nations.16 But these other ventures would seem to be signiﬁcantly diVerent from those of the former Yugoslavia, Rwanda and Sierra Leone in that they are not genuinely international bodies, although they have certainly been enriched by international law and by the active involvement of the United Nations. The Special Court for Sierra Leone is a close relative of the ‘hybrid tribunals’, but it is more accurately classiﬁed with the ad hoc tribunals because it is a creature of international law, not domestic law. Neither the scale that the tribunals have reached, nor the time frame during which they have operated, could ever have been imagined when the ﬁrst Security Council Resolution was adopted in 1993. By 2004, the United Nations ad hoc criminal tribunals consumed more than $250 million per annum, roughly 15 per cent of the total UN general budget. They have nearly 2,000 employees.17 This explains the relatively modest scale of the third institution, the Special Court for Sierra Leone, whose budget is a fraction of that of the other two institutions, and whose work is planned for completion within four or ﬁve years. Disturbed by the high cost and the size of the institutions, the Security Council has insisted on a ‘completion strategy’ to ensure that the ICTY and ICTR wrap up their work by 2010. But that is more

14

15

16 17

‘Internationalised or Ad Hoc Justice for International Criminal Law in a Time of Transition: The Cases of East Timor, Kosovo, Sierra Leone and Cambodia’, (2001) 6 Austrian Review of International and European Law 123. The distinction between ‘international’ and ‘hybrid’ tribunals is made in the Secretary-General’s August 2004 Report: ‘The Rule of Law and Transitional Justice in Conﬂict and Post-conﬂict Societies’, UN Doc. S/2004/616, paras. 40, 45, 46. Suzannah Linton, ‘Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor’, (2001) 25 Melbourne University Law Review 122; Hansjorg Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, (2001) 95 American Journal of International Law 46. The term probably deserves to be used with more care, given the fact that the Khmer Rouge fell in early 1979, almost a quarter-century before the United Nations reached agreement with the Government of Cambodia with respect to prosecutions. UN Doc. A/RES/57/228 B (2003). ‘The Rule of Law and Transitional Justice in Conﬂict and Post-conﬂict Societies, Report of the Secretary-General’, UN Doc. S/2004/616, para. 43.

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than ﬁfteen years since the ICTY was created, and compares rather strikingly with the historical model of the Nuremberg Tribunal, whose activities had been completed within ﬁfteen months of its creation. To be fair to the new generation of international tribunals, their proceedings are necessarily more complex and lengthy because of the important due process guarantees imposed by modern international human rights law. The three ad hoc tribunals ﬁt within a constantly expanding universe of international criminal justice institutions, of which the centrepiece is the International Criminal Court (ICC). The Rome Statute of the International Criminal Court came into force on 1 July 2002, subsequent to the creation of the ad hoc tribunals. When the draft statute of the ICC was submitted to the United Nations General Assembly by the International Law Commission in 1994, the concept was very much that of a permanent counterpart to the ICTY, to act more or less on stand-by waiting for speciﬁc assignments from the Security Council. In the course of four years of negotiations, the architecture of the Court evolved somewhat. In its ﬁnal form, the relationship with the Security Council is far less signiﬁcant than had originally been proposed.18 It remains possible, however, for the Security Council to refer situations to the Court, pursuant to article 13(b) of the Rome Statute. On 31 March 2005, the Security Council referred the situation in Darfur, Sudan, to the International Criminal Court,19 in a sense opting for the ICC as an alternative to the establishment of yet another ad hoc body, and this despite the fact that three of the Council’s permanent members have not ratiﬁed or acceded to the Rome Statute. The ancestor of these developments, the International Military Tribunal at Nuremberg, stood somewhat halfway between national and international law. According to B. V. A. Ro¨ling, a distinguished Dutch jurist and judge of the Tokyo Tribunal, the Nuremberg and Tokyo tribunals were ‘multinational tribunals’ and not ‘international tribunals in the strict sense’.20 At Nuremberg, the victorious Allies had ‘done together what any one of them might have done singly’.21 But in 1993 it was the United Nations Security Council, acting in a sense as a world government, intervening in what had begun as an internal conﬂict within a sovereign State, although the declaration of independence by various constituents of Yugoslavia gave it an international ﬂavour, to ensure that atrocities of which the principal victims were innocent civilians did not go unpunished. Professor Theodor Meron, one of the 18

19 20

21

See: William A. Schabas, Introduction to the International Criminal Court, 2nd edn, Cambridge: Cambridge University Press, 2004, pp. 82–85. UN Doc. S/RES/1593 (2005), para. 1. B. V. A. Ro¨ling, ‘The Law of War and the National Jurisdiction since 1945’, in Hague Academy of International Law, Collected Courses, 1960-II, Leyden: A. W. SijthoV, 1961, p. 356. France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, p. 218.

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pre-eminent academic observers of the process, later to become President of the ICTY, wrote that the ICTY was the ‘ﬁrst truly international criminal tribunal’.22 The ad hoc tribunals were conceived of and justiﬁed by a utilitarian rather than the essentially retributive premise that had been the rule at Nuremberg and Tokyo. The language in the Charter establishing the Nuremberg Tribunal referred to the need to bring oVenders to justice, and alluded to the 1943 Moscow Declaration that pledged to follow perpetrators of war crimes to the ends of the world.23 There was never any question at the time of using the institutions to help promote peace and end the conﬂict, for Germany (and soon Japan) already lay in ruins. Criminal prosecution was an accompaniment to military victory. And the word ‘reconciliation’, so fashionable today, never ﬁgured in this ﬁrst experiment with international justice. The contrast with the ad hoc tribunals is most striking. The Security Council Resolution establishing the ICTY spoke of the continuing threat to international peace and security, noting that ‘as an ad hoc measure by the Council’ the establishment of a tribunal to prosecute persons responsible for serious violations of international humanitarian law ‘would contribute to the restoration and maintenance of peace’.24 The Resolution establishing the Rwanda Tribunal, adopted a year later, added that prosecutions would also ‘contribute to the process of national reconciliation’.25 The Statute of the Special Court for Sierra Leone took this a step further by speciﬁcally providing that the Court is to have jurisdiction over ‘leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’.26 The link with promotion of peace and security associates such judicial initiatives with the principles and purposes of the United Nations, and justiﬁes the engagement of the institution as a whole and more speciﬁcally that of the Security Council. Evolving concepts in international human rights law have also played a role in the creation of the ad hoc tribunals, although the language in the constitutive documents is less explicit in this respect. The Vienna Declaration and Plan of Action, adopted in June 1993, that is, a month after the establishment of the ICTY, expressed its ‘concern [with] the issue of impunity of perpetrators of human rights violations’.27 The link between 22

23

24 25 26 27

Theodor Meron, ‘War Crimes in Yugoslavia and the Development of International Law’, (1994) 88 American Journal of International Law 78, at p. 79. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279. UN Doc. S/RES/827 (1993), preamble. UN Doc. S/RES/955 (1994), preamble. Statute of the Special Court for Sierra Leone, art. 1(1). ‘Vienna Declaration and Programme of Action’, UN Doc. A/CONF.157/24 (1993), para. 91.

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human rights norms and criminal prosecution is made through the duty to protect persons from violations of their fundamental rights.28 This has been transformed into a full-blown duty to prosecute, although the concept is only stated explicitly in one human rights instrument, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.29 Broad concepts of rule of law and transitional justice have been propelled to the centre of the United Nations agenda.30

Beginnings of international prosecution As the law of armed conﬂict developed in the mid-nineteenth century, the idea that an international tribunal be established to prosecute breaches of humanitarian law ﬁrst emerged.31 In 1913, a commission of inquiry sent by the Carnegie Foundation to investigate atrocities committed during the Balkan Wars used the Regulations annexed to the 1907 fourth Hague Convention as a basis for its description of war crimes.32 Following the First World War, the Commission on Responsibilities of the Authors of War and on Enforcement of Penalties established to examine allegations of war crimes committed by the Central Powers did the same.33 The Versailles Treaty actually provided for the establishment of an international tribunal to judge the German emperor, Wilhelm II, ‘for a supreme oVence against international morality and the sanctity of treaties’.34 But the Kaiser had ﬂed to neutral Holland, which refused his extradition. The Versailles Treaty also recognised the right of the Allies to set up military tribunals to try German soldiers accused of war crimes.35

28

29

30

31

32

33

34

35

‘Independent study on best practices, including recommendations, to assist States in strengthening their domestic capacity to combat all aspects of impunity, by Professor Diane Orentlicher’, UN Doc. E/CN.4/2004/88, paras. 24–56. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, annex, art. 5(2). ‘The Rule of Law and Transitional Justice in Conﬂict and Post-conﬂict Societies, Report of the Secretary-General’, UN Doc. S/2004/616. Christopher Keith Hall, ‘The First Proposal for a Permanent International Criminal Court’, (1998) 322 International Review of the Red Cross 57. Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, Washington: Carnegie Endowment for International Peace, 1914. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95. Treaty of Peace between the Allied and Associated Powers and Germany (‘Treaty of Versailles’), 1919 TS 4, art. 227. Ibid., arts. 228–230. It is often said that international law has always recognised the right of the victor to prosecute the war crimes committed by the vanquished. But if this is really the case, why did the Allies insist on German acquiescence to such a provision?

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Germany never accepted the provisions, and a compromise was reached that resulted in a handful of unsatisfactory proceedings held before German judges known as the ‘Leipzig trials’.36 The Treaty of Se`vres of 1920, which governed the peace with Turkey, also provided for war crimes trials.37 But the Treaty of Se`vres was rejected by Turkey, and was subsequently replaced by the Treaty of Lausanne of 1923, which contained a ‘Declaration of Amnesty’ for all oVences committed between 1 August 1914 and 20 November 1922.38 In the Moscow Declaration of 1 November 1943, the allies aYrmed their determination to prosecute the Nazis for war crimes. The United Nations Commission for the Investigation of War Crimes was established to set the stage for post-war prosecution. The Commission prepared a ‘Draft Convention for the Establishment of a United Nations War Crimes Court’, basing its text largely on a 1937 treaty adopted within the League of Nations system that never entered into force.39 But it was the work of the London Conference, convened at the close of the war and limited to the four ‘great’ powers, the United Kingdom, France, the United States and the Soviet Union, that laid the groundwork for the prosecutions at Nuremberg. The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT) was adopted on 8 August 1945.40 Within weeks, the Tribunal was operational, and slightly more than a year later, on 30 September–1 October 1946, it issued its judgment convicting nineteen defendants of crimes against peace, war crimes and crimes against humanity.41 In the Paciﬁc theatre, the Allies established the

36

37

38

39

40

41

Why did the Germans consider they were entitled to refuse to accept the clauses? See the discussion in: H. Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’, (1944) 21 British Yearbook of International Law 58, especially at pp. 60–61. German War Trials, Report of Proceedings before the Supreme Court in Leipzig, London: His Majesty’s Stationery OYce, 1921. Also: James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, Westport, CT: Greenwood Press, 1982; Gerd Hankel, Die Leipziger Prozesse, Hamburg: Hamburger Edition, 2003. [1920] UKTS 11, De Martens, Recueil ge´ne´ral des traite´s, 99, 3e se´rie, 12, 1924, p. 720 (French version). Treaty of Lausanne Between Principal Allied and Associated Powers and Turkey, (1923) 28 LNTS 11. ‘Draft Convention for the Establishment of a United Nations War Crimes Court’, UN War Crimes Commission, Doc. C.50(1), 30 September 1944. (1951) 82 UNTS 279. See: Arieh J. Kochavi, Prelude to Nuremberg, Allied War Crimes Policy and the Question of Punishment, Chapel Hill: University of North Carolina Press, 1998; Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Washington: US Government Printing OYce, 1949. France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172. The literature on the Nuremberg trial of the major war criminals is extensive. Probably the best modern account is: Telford Taylor, The Anatomy of the Nuremberg Trials, New York: Alfred A. Knopf, 1992.

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International Military Tribunal for the Far East, which was broadly similar to the Nuremberg tribunal. International law was also applied in the course of many other trials held at the time before courts established by the victorious powers acting on an individual basis.42 The successes at Nuremberg and Tokyo prompted initiatives to establish a permanent international criminal court. Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948, said that trial for genocide was to take place before ‘a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’.43 A General Assembly resolution adopted the same day as the Convention called upon the International Law Commission to prepare the statute of the court promised by article VI.44 In parallel with the work of the International Law Commission, the General Assembly also established a committee charged with drafting the statute of an international criminal court.45 Then, the General Assembly suspended the mandates, ostensibly pending the sensitive task of deﬁning the crime of aggression.46 Cold War tensions had in fact made progress on the establishment of any international jurisdiction virtually impossible.

The post-Cold War revival of international prosecution In 1989, the year of the fall of the Berlin wall, Trinidad and Tobago initiated a resolution in the General Assembly directing the International Law Commission to consider the subject of an international criminal court.47 The following year, British Prime Minister Margaret Thatcher and United States President George Bush, both evoking the precedent of the Nuremberg trials, broached the idea of an international tribunal to deal with the Iraqi invasion of Kuwait, one that might address such crimes as aggression and hostage-taking.48 There are reports that the idea originated in the United 42

43 44

45

46 47 48

Frank M. Buscher, The US War Crimes Trial Program in Germany, 1946–1955, Westport, CT: Greenwood Press, 1989. (1951) 78 UNTS 277, art. 6. ‘Study by the International Law Commission of the Question of an International Criminal Jurisdiction’, GA Res. 216 B(III). ‘Report of the Committee on International Criminal Court Jurisdiction’, UN Doc. A/ 2135 (1952); ‘Report of the Committee on International Criminal Court Jurisdiction’, UN Doc. A/2645 (1954). GA Res. 897(IX) (1954). GA Res. 44/89. For Thatcher, see her television interview of 1 September 1990: (1990) 61 British Yearbook of International Law 602; Marc Weller, ‘When Saddam is Brought to Court . . .’, The Times, 3 September 1990. For Bush, see: US Department of State Dispatch, 22 October 1990, vol. I

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States Department of the Army.49 Pentagon lawyers prepared a report documenting crimes allegedly committed by the Iraqi President for a possible trial. The matter was ‘quietly dropped after the American-led coalition won the Persian Gulf war without capturing Mr Hussein’.50 Then, European powers seized upon the idea. Following reports that Iraq had massacred Kurds in the northern part of the country, German Foreign Minister Hans Dietrich Genscher advanced the idea of an international court at a meeting of the Council of Ministers of the European Community held in Luxembourg on 15 April 1991.51 Jacques Poos, Luxembourg’s foreign minister and acting president of the Council, said the Community considered that Saddam Hussein was personally responsible for genocide and war crimes.52 The foreign minister of Belgium, Mark Eijskens, said it would be ‘a Nuremberg-type procedure’.53 The foreign ministers felt the matter should be addressed by the United Nations. On 16 April 1991, Poos wrote to the United Nations Secretary-General, Perez de Cuellar, asking that he examine the question of the personal responsibility of Iraqi leaders, in particular in light of the Genocide Convention, and the possibility that an international court try them.54 In an address to the European Council on 17 April 1991, Luxembourg’s Prime Minster Jacques Santer referred to the proposal, adding that the Secretary-General had answered the earlier letter from Jacques Poos ‘with interest’. Genscher, too, returned to the matter in a speech to the German parliament on 17 April 1991.55

49 50

51 52

53 54

55

(8), p. 205; US Department of State Dispatch, 12 November 1990, vol. I(11), p. 260. Also: Louis Rene Beres, ‘Iraqi Crimes and International Law: The Imperative to Punish’, (1993) 21 Denver Journal of International Law and Policy 335; Louis Rene Beres, ‘Prosecuting Iraqi Crimes: Fulﬁlling the Expectations of International Law After the Gulf War’, (1992) 10 Dickinson Journal of International Law 425; Louis Rene Beres, ‘Toward Prosecution of Iraqi Crimes Under International Law: Jurisprudential Foundations and Jurisdictional Choices’, (1991) 22 California Western International Law Journal 127; Louis Rene Beres, ‘Iraqi Crimes During and After the Gulf War: The Imperative Response of International Law’, (1993) 15 Loyola Los Angeles International and Comparative Law Journal 675. Marc Weller, ‘When Saddam is Brought to Court . . .’, The Times, 3 September 1990. Elaine Sciolino, ‘US Names Figures it Wants Charged with War Crimes’, New York Times, 17 December 1992, p. 1. ‘L’ombre de Nuremberg’, Le Monde, 17 April 1991. ‘Les Douze proposent que M. Saddam Hussein soit juge pour ‘‘tentative de genocide’’’, Le Monde, 17 April 1991. Yves Clarisse, ‘SADDCEE’, La Press Canadienne, 15 April 1991. ‘Letter by President-in-OYce of the Council, Jacques Poos, to the Secretary-General of the United Nations, Perez de Cuellar’, 16 April 1991, reproduced in The Path to The Hague, The Hague: ICTY, 2001, pp. 16–17. Genscher also formulated the proposal in a speech delivered at the University of Ottawa when he was awarded an honorary degree on 27 September 1991. Also: ‘Deutschlands Verantwortung in der Welt’, Ostthu¨ringer Zeitung, 3 October 1991.

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The Iraqi tribunal project went no further, but the discussion it provoked had clearly revived the entire issue of a permanent international criminal court. In France, Professor Alain Pellet prepared a note for the OYce of the Prime Minister on the legal issues involved in establishing an international criminal court.56 The French National Consultative Commission on Human Rights proposed that the French Prime Minister initiate steps for the establishment of such a court.57

Establishing the International Criminal Tribunal for the former Yugoslavia As the idea of an international criminal court was gaining momentum, after decades of atrophy, armed conﬂict erupted when Yugoslavia began to disintegrate. The country had been created in 1919 from a patchwork of States following the collapse of the Austrian and Ottoman empires during the First World War. Tensions among the ethnic groups that made up the new State never disappeared, and were particularly acute during the Second World War. When President Tito died in 1981, a new generation of leaders began tearing the country apart. Their secessionist ambitions were encouraged in the postCold War environment. In 1991, ﬁrst Slovenia and then Croatia declared independence from what they considered to be a Serb-dominated federation. Reacting to what looked increasingly to be an inevitable break-up, the Belgrade regime sought to carve oV areas from the seceding States in which there was a large Serb population. With the borders up for grabs, especially in Bosnia and Herzegovina, all sides indulged in ‘ethnic cleansing’ in order to strengthen their territorial ambitions. This forced expulsion of populations was facilitated by terror, persecution and inhumane acts directed against civilian populations. Europe in particular struggled with how to tame the conﬂict. Criminal accountability and prosecution was an idea whose time had come, and it was not long before proposals began to be circulated. On 16 May 1991, Mirko Klarin published an article entitled ‘Nuremberg Now!’ in the Belgrade newspaper Borba.58 Oxford history professor Norman Stone made a similar appeal in a comment he published in the Guardian on 13 November 1991.59 In early 1992, French constitutional judge Robert Badinter,

56

57

58 59

Alain Pellet, ‘The International Responsibility of Saddam Hussein’, 16 April 1991, reproduced in The Path to The Hague, pp. 18–23. Commission nationale consultative des droits de l’homme, ‘Avis concernant la cre´ation d’une Cour pe´nale internationale’, 4 July 1991, English translation in The Path to The Hague, pp. 33–35. English translation in The Path to The Hague, pp. 43–45. Norman Stone, ‘Dubrovnik: The Case for a War Crime Trial – Why Not Restore the Nuremberg Tribunal?’, Guardian, 13 November 1991.

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who also presided over the Arbitration Commission for the former Yugoslavia that had been established by the European Commission in late 1991, raised the idea of an international criminal tribunal for Yugoslavia in discussions with the two mediators, Lord Carrington and Cyrus Vance.60 But the legal adviser to the Quai d’Orsai, Jean-Pierre Puissochet, found Badinter’s whole idea unrealistic. Puissochet felt that ‘to elaborate a treaty to create a tribunal would take years’ and believed it unlikely that the Security Council would contemplate such an initiative.61 Eventually, Badinter managed to interest the French Foreign Minister, Roland Dumas, who took the matter up with President Mitterand. Mitterand was initially negative about the idea. ‘That will not succeed’, he told Dumas. ‘What is needed, is a political solution.’62 But subsequently, he authorised Dumas to pursue the idea.63 In its report issued at the end of July 1992, the New York City-based nongovernmental organisation Human Rights Watch called ‘for the constitution at the highest level of an international tribunal charged with investigating, pursuing, judging and punishing without distinction those responsible for war crimes on the territory of the ex-Yugoslavia’.64 At the London Conference on the Former Yugoslavia, held on 26 August 1992, German Foreign Minister Klaus Kinkel called for the establishment of a criminal court,65 a suggestion that was immediately endorsed by French Foreign Minister Roland Dumas. The following is recorded in the Conference Decisions, adopted on 27 August 1992: ‘The Co-Chairmen have undertaken to carry forward a study of the creation of an international criminal court.’66 Throughout the second half of 1992, the idea of an international court for the former Yugoslavia continued to gain momentum. During debates in the United Nations General Assembly, on 23 September 1992, German Foreign Minister Kinkel referred to the proposal.67 French Foreign Minister Dumas did the same in a declaration to the Security Council on 6 October 1992, as it decided to establish a Commission of Experts. Dumas said that Resolution

60 61

62 63 64

65 66

67

For Badinter’s personal account, see The Path to The Hague, pp. 86–87. Pierre Hazen, La justice face a` la guerre, De Nuremberg a` La Haye, Paris: Stock, 2000, at p. 37. Ibid., p. 38. Ibid., p. 39. Report of Helsinki Watch, part of Human Rights Watch, ‘War Crimes in BosniaHerzegovina’, August 1992, p. 17. David Gow, ‘Germany to Call for War Crimes Trials’, Guardian, 20 August 1992, p. 6. Speciﬁc Decisions by the London Conference, doc. LC/C (Final), 27 August 1992, para. 8, reprinted in ‘Material Relating to the London Conference (August 26–27, 1992) and the Crisis in the Former Yugoslavia’, US Department of State Dispatch Supplement, vol. 3, No. 7, 15 September 1992. UN Doc. A/47/PV.8, p. 61.

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780 launched an ‘international investigation on crimes against humanity . . . [that] opens the way for the establishment of a Permanent International Criminal Court’.68 By then, a variety of initiatives were afoot on a more technical level. On 5 August 1992, the United Kingdom, with the support of several European Union members as well as the United States, invoked the ‘Moscow Human Dimension Mechanism’ of the Conference for Security and Cooperation in Europe (CSCE).69 It subsequently informed the CSCE’s OYce for Democratic Institutions and Human Rights that it had designated Swedish diplomat Hans Corell as rapporteur. In turn, Bosnia and Herzegovina and Croatia nominated Austrian diplomat Helmut Tu¨rk, and then Corell and Tu¨rk chose the Norwegian, Gro Hillestad Thune, as the third member of the team of rapporteurs. Their mandate was ‘[t]o investigate reports of atrocities against unarmed civilians in Croatia and Bosnia, and to make recommendations as to the feasibility of attributing responsibility for such acts’.70 A report on Croatia was submitted in early October 1992, accompanied by the recommendation of the rapporteurs that a committee of experts be convened as early as possible to prepare a draft treaty establishing an ad hoc tribunal with jurisdiction over the former Yugoslavia. The report noted accounts of atrocities perpetrated against unarmed civilians, including ‘ethnic cleansing’, and said there was ‘a suYcient legal basis for international prosecution’.71 The CSCE’s Committee of Senior OYcials considered the report at its meeting in Prague, on 5–6 November 1992, and recommended that ‘[t]he United Nations Commission of Experts should give particular attention to the principle of personal responsibility for war crimes and examine how this principle could be put into practice by an ad hoc tribunal’.72 Ambassador Corell informed them that the United Nations Commission of Experts did not consider that establishment of an ad hoc tribunal was within the latter’s mandate. For this reason, the rapporteurs asked for a mandate ‘to draft a convention establishing an international ad hoc tribunal to deal with war crimes and crimes against humanity committed in the former Yugoslavia’. On 15 December 1992, the Council of the CSCE, meeting in Stockholm, authorised the three rapporteurs ‘to reﬁne their proposals on making the

68 69

70 71

72

The Path to The Hague, p. 65. Proposal for an International War Crimes Tribunal for the Former Yugoslavia by Rapporteurs (Corell – Tu¨rk – Thune) under the CSCE Moscow Human Rights Dimension to Bosnia – Herzegovina and Croatia, 9 February 1993, p. 15. Ibid., p. 16. Virginia Morris and Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, vol. I, Irvington-on-Hudson, NY: Transnational Publishers, 1995, p. 27. 17-CSO/Journal No. 2, Annex 3, p. 7.

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principle of personal accountability eVective including the possibility of the establishment of an ad hoc tribunal’.73 In the meantime, the United Nations Security Council had slowly begun initiatives that would also contribute to the call for an international tribunal. On 13 July 1992, the Council had condemned violations of international humanitarian law being committed on the territory of the former Yugoslavia, indicating that perpetrators were individually responsible for their acts.74 Previously, the Council had only referred in general terms to human rights or minority rights, and not to ‘violations of international humanitarian law’. For example, Resolution 757, of 30 May 1992, had made no speciﬁc reference to human rights, although it did speak of respect for borders, withdrawal of armed groups, humanitarian assistance, and a halt to attempts to change ethnic composition of areas. Moreover, for the ﬁrst time, the Council was beginning to invoke obligations imposed upon individuals rather than States.75 On 13 August 1992, the Security Council again directed its attention to reports of ‘violations of international humanitarian law’. It called upon States to collate information on the subject and to make this available to the Council. The Secretary-General was to submit a report to the Council ‘recommending additional measures that might be appropriate in response to the information’.76 Pursuing its concerns about reports of widespread violations of international humanitarian law, including the practice of ‘ethnic cleansing’, on 6 October 1992, the Council requested that the Secretary-General establish a Commission of Experts to examine and analyse the information that was gathered.77 But it was already noticeable that the Council had ‘studiously avoided the issue of a war crimes tribunal’.78 The United States, which was behind the initiative, had wanted to create a body similar to the 1943 war crimes commission, that prepared the ground for the Nuremberg trials. 73

74 75

76

77 78

See the account of these developments prepared by Hans Corell in The Path to The Hague, pp. 74–81. Also: Conference for Security and Co-operation in Europe, Third Council Meeting, Stockholm, 14–15 December 1992, Summary of Conclusions – Decision on Peaceful Settlement of Disputes: 1. Regional Issues: Former Yugoslavia, para. 14. UN Doc. S/RES/764 (1992). James O’Brien, ‘The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’, (1993) 87 American Journal of International Law 639, at p. 640. UN Doc. S/RES/771 (1992). The resolution echoed language in an earlier resolution on Iraq (UN Doc. S/RES/674 (1991)). A draft of the resolution included establishment of an international commission that would have prepared the basis for prosecutions. See: Morris and Scharf, An Insider’s Guide to the ICTY, vol. I, p. 23. UN Doc. S/RES/780 (1992). Mark Tran and Hella Pick, ‘UN to Set Up Commission to Investigate Atrocities in Former Yugoslavia; Europeans Dilute US Call for War Crimes Tribunal’, Guardian, 7 October 1992, p. 8.

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However, the United Kingdom, France and China watered down the resolution it proposed. The permanent members even argued about the name, with the United States wanting to call it the Commission on War Crimes, evoking the United Nations War Crimes Commission set up by the Allies in 1943 to prepare the post-war prosecutions,79 while the others proposed it be named a Committee, with no reference to war crimes.80 Roland Dumas congratulated them: ‘The vote on Resolution 780 deciding on an international investigation on crimes against humanity in the former Yugoslavia is a considerable step in the evolution of international law. This decision, unprecedented since the creation of the United Nations Organization, opens the way for the establishment of a Permanent International Criminal Tribunal.’81 Commenting on this subsequently, two senior lawyers in the United Nations Secretariat said it was ‘the unspoken understanding’ that the Commission was a step towards the establishment of an international criminal tribunal.82 A few weeks later, on 26 October 1992, the Secretary-General announced the appointment of the ﬁve-person Commission of Experts.83 According to M. Cherif Bassiouni, who chaired the Commission for most of its activities, the United Nations did not provide any resources ‘to insure that the Commission would not interfere with the ongoing peace negotiations’.84 The Commission was frustrated by the lack of funds,85 although Bassiouni was eventually able to obtain support from outside the United Nations system.86 79

80 81

82

83

84

85

86

History of the United Nations War Crimes Commission and the Development of the Laws of War, London: His Majesty’s Stationery OYce, 1948. Morris and Scharf, An Insider’s Guide to the ICTY, vol. I, pp. 25–26. ‘Statement of the French Minister of Foreign AVairs, Mr Dumas, following the vote by the Security Council on Resolution 780, 6 October 1992’, in The Path to The Hague, pp. 64–65. Daphna Shraga and Ralph Zacklin, ‘The International Criminal Tribunal for the Former Yugoslavia’, (1994) 5 European Journal of International Law 1, at p. 2. See: ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993). M. Cherif Bassiouni, ‘Combating Impunity for International Crimes’, (2000) 71 Colorado Law Review 409, at pp. 417–418. Also: M. Cherif Bassiouni, ‘From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court’, (1997) 10 Harvard Human Rights Journal 11, at pp. 39–42; M. Cherif Bassiouni, ‘The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)’, (1994) 88 American Journal of International Law 784. Paul Jenkins and Ed Harriman, ‘War Crimes Team Muddle Along as Killing Continues’, Guardian, 3 February 1993, p. 9. The Commission established a database designed to provide a comprehensive record of all reported violations of international humanitarian law. See: ‘Letter Dated 24 May 1994 from the Secretary-General to the President of the Security Council’, UN Doc. S/1994/674, 27 May 1994; M. Cherif Bassiouni, ‘The Commission of Experts Established pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia’, (1994) 5 Criminal Law Forum 279.

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In an interim report to the Security Council, issued on 16 January 1993, the Commission of Experts called for the establishment of an international tribunal.87 Other United Nations bodies were also using language whose context suggested international prosecution was in the wind. In mid-August, the Commission on Human Rights held its ﬁrst ever special session in order to consider the situation in the former Yugoslavia.88 The Commission ‘[c]ondemn[ed] absolutely the concept and practice of ‘‘ethnic cleansing’’, declared that perpetrators were individually responsible for violations of human rights, and that the international community would spare no eVort to bring them to justice’.89 At the session, the United States circulated a letter from the President of Bosnia and Herzegovina calling for the creation of a Nuremberg-like international criminal court.90 The Commission on Human Rights reconvened on 30 November 1992, in a second special session, and reiterated its previous declaration. It called upon ‘all States to consider the extent to which the acts committed in Bosnia and Herzegovina and in Croatia constitute genocide, in accordance with the Convention on the Prevention and Punishment of the Crime of Genocide’.91 According to the Special Rapporteur appointed by the Commission, Tadeusz Mazowiecki: ‘There is growing evidence that war crimes have been committed. Further investigation is needed to determine the extent of such acts and the identity of those responsible, with a view to their prosecution by an international tribunal, if appropriate.’92 In December 1992, the General Assembly, without speciﬁcally referring to the situation in the former Yugoslavia, aYrmed ‘its conviction that those who commit or order the commission of acts of ‘‘ethnic cleansing’’ are individually responsible and should be brought to justice’.93 The General Assembly later urged the Security Council ‘to consider recommending the establishment of an ad hoc international war crimes tribunal to try and punish those who have committed war crimes in the Republic of Bosnia and Herzegovina when suYcient information has been provided by the Commission of Experts established by Council resolution 780 (1992) of 6 October 1992’.94 87

88

89

90 91

92 93 94

‘Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)’, UN Doc. S/25272, 10 February 1993, para. 74. Payam Akhavan, ‘Punishing War Crimes in the Former Yugoslavia: A Critical Juncture for the New World Order’, (1993) 15 Human Rights Quarterly 262, at pp. 265–268. ‘The Situation of Human Rights in the Territory of the Former Yugoslavia’, CHR Res. 1992/S-1/1, para. 2. UN Doc. E/CN.4/1992/S-1/5. ‘The Situation of Human Rights in the Territory of the former Yugoslavia’, CHR Res. 1992/S-2/1, para. 10. UN Doc. A/47/666-S/24809 (1992), p. 39. UN Doc. A/RES/47/80, 16 December 1992, para. 4. UN Doc. A/RES/47/121, 18 December 1992, para. 10. Also: UN Doc. A/RES/47/147, 18 December 1992.

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Dramatically, on 16 December 1992, United States Secretary of State Lawrence Eagleburger ‘named names’ of persons suspected of crimes against humanity, saying his government had provided details to the Commission of Experts ‘whose decision it will be to prosecute or not’. Eagleburger had previously served as United States ambassador to Belgrade, and had been considered sympathetic to the Serbs, but by August 1992 his views had evolved and he began calling for a war crimes tribunal. ‘We know that crimes against humanity have occurred, and we know when and where they occurred’, Eagleburger said, speaking to a conference on the Balkan conﬂict. ‘We know, moreover, which forces committed those crimes, and under whose command they operated. And we know, ﬁnally, who the political leaders are and to whom those military commanders were – and still are – responsible.’95 These included the Bosnian Serb leaders, Karadzˇic´ and Mladic´, who would ﬁgure in the early indictments of the ICTY,96 as well as Serbian President Slobodan Milosˇevic´, who would subsequently travel to the United States for the Dayton negotiations. Milosˇevic´ was not indicted for alleged crimes committed in Bosnia and Herzegovina until November 2001.97 Eagleburger warned that ‘a second Nuremberg awaits the practitioners of ethnic cleansing’.98 The most enthusiastic – and ultimately decisive – support for the idea of the tribunal was coming from the United States of America. In one of his ﬁrst policy initiatives since being appointed Secretary of State, Warren Christopher, who was sworn in as Eagleburger’s replacement on 20 January 1993, instructed senior advisers in the Department of State to investigate how best to organise an international war crimes tribunal. During his Senate conﬁrmation hearings on 13 January 1993, Christopher had said the Clinton administration would support war crimes trials in the Balkans as well as against Iraqis suspected of war crimes in Kurdistan. He said they could take place either under the jurisdiction of the International Court of Justice (ICJ) in The Hague or in a specially created tribunal in the United States.99 Secretary Christopher submitted a report to the United Nations on human rights violations during the Balkan conﬂict. It drew upon material collected by United States intelligence agencies. According to Simon Tisdall and Chris

95

96 97 98

99

Elaine Sciolino, ‘US Names Figures it Wants Charged with War Crimes’, New York Times, 17 December 1992, p. 1. Karadzˇic´ et al. (IT-95-5-I), Indictment, 24 July 1995. Milosˇevic´ (IT-01-51-I), Indictment, 22 November 2001. Elaine Sciolino, ‘US Names Figures it Wants Charged with War Crimes’, New York Times, 17 December 1992, p. 1. Elaine Sciolino, ‘US Moves Ahead on War Crimes Tribunal’, New York Times, 27 January 1993, Section A, p. 3; Simon Tisdall and Chris Stephen, ‘US is Set on Prosecuting Yugoslav War Criminals’, Guardian, 28 January 1993, p. 8.

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Stephen, writing in the Guardian, ‘[t]he report is intended for use by a future tribunal. Under the US plan, which is still being formulated, the Serbian president, Slobodan Milosˇevic´, and the Serbian leader in Bosnia, Radovan Karadzˇic´, are among those who may face trial for alleged war crimes.’100 Support from some countries in Western Europe was still uncertain. Britain was said to have expressed misgivings about the practicalities of a court.101 France, on the other hand, appeared keen to advance the agenda. On 16 January 1993, French Foreign Minister Dumas appointed a Commission of Jurists, chaired by Pierre Truche, to draft its own proposal for a war crimes tribunal.102 On 22 February 1993, on a proposal from France,103 the Security Council instructed the Secretary-General ‘to submit for consideration by the Council at the earliest possible date, and if possible no later than sixty days after the adoption of the present resolution, a report on all aspects of this matter, including speciﬁc proposals and where appropriate options for the eVective and expeditious implementation of the decision in paragraph 1 above, taking into account suggestions put forward in this regard by Member States’.104 During the debate on what would become Security Council Resolution 808, four permanent members spoke enthusiastically about the proposal, while the ﬁfth, the People’s Republic of China, was more reserved, although it did vote in favour. Jean-Bernard Me´rime´e, French Ambassador to the United Nations, focused on the need ‘to do justice to the victims and to the international community’, to ‘send a clear message to those who continue to commit these crimes that they will be held responsible for their acts’, and, ﬁnally, on the Security Council’s ‘duty to maintain and restore peace’. The United States representative, Madeleine K. Albright, argued that States could not eradicate minorities in order to achieve ethnic purity, and spoke of encouraging ‘the emergence of peaceful, multi-ethnic democracies’. She said that President Bill Clinton ‘has long supported the establishment of a war-crimes tribunal at the

100

101 102

103

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Simon Tisdall and Chris Stephen, ‘US is Set on Prosecuting Yugoslav War Criminals’, Guardian, 28 January 1993, p. 8. Ibid. See ‘Lettre du Ministre d’E´tat franc¸ais, M. Dumas, au Procureur ge´ne´ral, M. Truche, concernant la constitution d’un Comite´ de juristes devant se pencher sur les questions souleve´es par la cre´ation d’un tribunal pe´nal international’, 16 January 1993, English translation in The Path to The Hague, p. 73. ‘Letter dated 10 February 1993 from the Permanent Representative of France to the United Nations addressed to the Secretary-General’, UN Doc. S/25266 (1993). It contained the draft prepared by the French jurists. UN Doc. S/RES/808 (22 February 1993). Paragraph 1 states that ‘an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’.

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United Nations to bring justice and deter further atrocities in the former Yugoslavia’.105 According to Professor Michael Scharf: From the beginning, the Security Council’s motives in creating the tribunal were questionable. During the negotiations to establish the court . . . it became clear that several of the Security Council’s permanent members considered the tribunal a potential impediment to a negotiated peace settlement. Russia, in particular, worked behind the scenes to try to ensure that the tribunal would be no more than a Potemkin court. The United States’ motives were also less than pure. America’s chief Balkans negotiator at the time, Richard Holbrooke, has acknowledged that the tribunal was widely perceived within the government as little more than a public relations device and as a potentially useful policy tool.106

German Foreign Minister Klaus Kinkel said subsequently that the limitation of the mandate to the former Yugoslavia left the impression of being a concession to some Security Council members who might be concerned about their own accountability. He gave the example of China with respect to the Tiananmen Square massacre.107 In preparing his report, and the draft statute, the Secretary-General had several helpful documents. In addition to the CSCE draft,108 and that of the French jurists, there were submissions from Italy,109 Brazil,110 Canada,111 the Organisation of the Islamic Conference,112 Mexico,113 the Netherlands,114 the Russian Federation,115 Slovenia116 and the United

105 106

107 108

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110

111

112 113

114

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UN Doc. S/PV.3175 (22 February 1993). Michael Scharf, ‘Indicted For War Crimes, Then What?’, Washington Post, 3 October 1999, p. B01. Nordwest Zeitung, 15 February 1993. It was circulated to the Security Council in summary form: UN Doc. S/25307. The entire document is reproduced in Morris and Scharf, An Insider’s Guide to the ICTY, vol. II, pp. 211–310. ‘Letter dated 16 February 1993 from the Permanent Representative of Italy to the United Nations addressed to the Secretary-General’, UN Doc. S/25300 (1993). ‘Letter dated 6 April 1993 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General’, UN Doc. A/47/922-S/25540 (1993). ‘Letter dated 13 April 1993 from the Permanent Representative of Canada to the United Nations addressed to the Secretary-General’, UN Doc. S/25594 (1993). UN Doc. A/47/920-S/25512 (1993). ‘Note verbale dated 12 March 1993 from the Permanent Mission of Mexico to the United Nations addressed to the Secretary-General’, UN Doc. S/25417 (1993). ‘Note verbale dated 30 April 1993 from the Permanent Representative of the Netherlands to the United Nations addressed to the Secretary-General’, UN Doc. S/25716 (1993). ‘Letter dated 5 April 1993 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General’, UN Doc. S/25537 (1993). ‘Letter dated 20 April 1993 from the Permanent Representative of Canada to the United Nations addressed to the Secretary-General’, UN Doc. S/25652 (1993).

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States,117 as well as contributions to the debate from the International Committee of the Red Cross and two of the major human rights non-governmental organisations, Amnesty International and the Lawyers Committee for Human Rights.118 Presented to the Council on 3 May 1993, the report consisted of a draft statute and a detailed commentary and explanation.119 The Security Council, without modiﬁcation, on 25 May 1993, unanimously adopted the draft statute proposed by the Secretary-General.120 At the time, there was considerable uncertainty about the power of the Security Council to establish such a criminal tribunal,121 and it has been suggested by some commentators that it actually acted beyond the powers granted to it by the Charter of the United Nations.122 Such institutions do not ﬁgure in the list of measures proposed by article 41 of the Charter, and although the enumeration is not exhaustive, this has been described as ‘[t]he most far-reaching use of Art. 41 ordering measures not listed’.123 In a 1954 advisory opinion, the International Court of Justice acknowledged the power of United Nations organs to entrust their powers to subsidiary bodies including tribunals,124 something that is authorised, with respect to the Security Council, under article 28 of the Charter. But the Tribunal is not entirely subordinate to the Council; its judges are elected by the General Assembly, and the Secretary-General nominates its Prosecutor. It took somewhat more than a year for the ICTY to get up and running. Observers were sceptical that it would ever function eVectively. Theodor Meron of New York University, who eight years later would be elected President of the Tribunal, wrote in Foreign AVairs that ‘despite its desirability, it is probable that the tribunal will not be very eVective’.125 Nominations for the 117

118

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120 121

122

123

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‘Letter dated 5 April 1993 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General’, UN Doc. S/25575 (1993). A detailed comparison of the various drafts is provided in Morris and Scharf, An Insider’s Guide to the ICTY, vol. I, pp. 363–462. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993). UN Doc. S/RES/827 (1993). A number of States challenged this within the Security Council. See, for example, the remarks of Brazil and China during the establishment of the ICTR. James Crawford, ‘The Work of the International Law Commission’, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I, Oxford: Oxford University Press, 2002, pp. 23–34, at p. 23. Jochen A. Frowein, ‘Chapter VII Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression (Articles 39–43)’, in Bruno Simma et al., eds., The Charter of the United Nations, Oxford: Oxford University Press, 1994, pp. 605–639, at p. 626. EVect of Awards of Compensation Made by the United Nations Administrative Tribunals (Advisory Opinion), [1954] ICJ Reports 47, 21 ILR 310, at p. 321 (ILR). Theodor Meron, ‘The Case for War Crimes Trials in Yugoslavia’, Foreign AVairs, Summer 1993, p. 122.

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ﬁrst judges were solicited,126 and elections were held by the General Assembly in November 1993. The judges met for the ﬁrst time at the end of the year, and by early 1994 they were busy drafting the Rules of Procedure and Evidence and studying such matters as the establishment of a detention centre. The Secretary-General identiﬁed a prosecutor, who was then formally appointed only to resign before ever really beginning the work.127 A new search began, but it was not until July 1994 that consensus was reached on Richard Goldstone, a distinguished South African judge who had recently been appointed to that country’s new Constitutional Court.128 First indictments were issued in late 1994,129 and by the end of the year the Tribunal actually had a few suspects in custody, although they were minor players in the war. On 2 October 1995, even before its ﬁrst trial had actually begun, the Appeals Chamber of the ICTY issued what is surely its most signiﬁcant ruling. The ﬁrst accused to be taken into custody, Dusˇko Tadic´, had challenged the jurisdiction of the Tribunal on a number of grounds, including the legality of its creation and the extent of the application of international law to the internal conﬂicts in the States of the former Yugoslavia. Predictably, the Appeals Chamber dismissed the claim that it was improperly created. What was more surprising was its bold and innovative approach to the scope of international criminal justice with respect to internal armed conﬂicts and even during peacetime. The drafters of the Statute had approached the issue of applicable law quite conservatively, borrowing legal texts from instruments adopted during the 1940s and at least implicitly taking the position that international criminal law had not really developed since then. The Tadic´ jurisdictional decision departed from the texts, and above all from an anachronistic interpretation. It declared that war crimes could be committed during civil wars. It also established that crimes against humanity could take place during peacetime. On these points, the ruling moved the law forward dramatically.130

126 127 128 129

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UN Doc. S/RES/857 (1993). UN Doc. S/RES/877 (1993). UN Doc. S/RES/936 (1994). The ﬁrst person to be indicted was Dragan Nikolic´, for grave breaches of the Geneva Conventions, violations of the laws or customs of war and crimes against humanity committed when he was the commander of the Susica camp in north-eastern Bosnia and Herzegovina in the summer of 1992: Dragan Nikolic´ (IT-94-2-I), Indictment, 4 November 1994. He was eventually arrested, by the Multinational Stabilisation Force (SFOR), on or about 20 April 2000, pleaded guilty, and was sentenced to a prison term of twenty-three years. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003. The sentence was reduced to twenty years by the Appeals Chamber. Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

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The Tadic´ trial began on 7 May 1996, and ﬁnished about a year later. The defendant was an insigniﬁcant personality in the conﬂict. The Tribunal simply did not have any high-proﬁle defendants in custody, although it had begun to indict some. It had no cooperation from the governments in the region and, at least initially, little assistance from the NATO-led peace support forces who controlled the situation on the ground in Bosnia and Herzegovina after the Dayton Agreement was adopted. In order to catch defendants by surprise, the ICTY issued many conﬁdential indictments, a practice it later abandoned when it realised that publicity actually induced accused persons to surrender. By 2000, the Tribunal was thriving, with several ongoing trials, defendants who had played leadership roles in the conﬂicts, an experienced professional staV and a budget of well over $100 million per annum. The ICTY also developed new legal doctrines to facilitate prosecution in this unique and specialised area. The most important was the concept of ‘joint criminal enterprise’, ﬁrst enunciated by the Appeals Chamber in July 1999.131 Although not set out in the Statute of the ICTY, joint criminal enterprise allowed conviction of participants in atrocities even in the absence of proof that they had personally perpetrated the heinous acts or even knew they would be committed. To the extent that the crimes were committed by other members of the enterprise, and that they were reasonably foreseeable, a conviction would lie, if there had been a common purpose to commit an act prohibited by the Statute, such as ethnic cleansing. A temporary body by its very nature, attention soon began shifting to the conclusion of the work of the ICTY. By 2002, it had announced its ‘Completion Strategy’, which aims at closing the doors of the Tribunal by 2010.132 In 2005, the ICTY began referring some of those who had been arrested and brought to The Hague back to national courts for prosecution, in order to lighten its case load. It trudged ahead with its most important trial, that of former Serbian President Slobodan Milosˇevic´, while continuing to put international pressure to bear in the hopes of securing custody over its three most wanted men, Radovan Karadzˇic´, Ratko Mladic´ and Ante Gotovina.

Establishing the International Criminal Tribunal for Rwanda The ICTY was not even fully operational when reports hit the international media of terrible atrocities being committed within the context of a civil war in Rwanda, a former Belgian mandate in central Africa. The backdrop was an historic conﬂict between two ethnic groups, the majority Hutu who had governed the country since independence, and the minority Tutsi, who

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Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 220. On the ‘completion strategy’, see below at pp. 40–43.

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had dominated it during the colonial period. Since decolonisation, a series of pogroms had driven waves of Tutsi refugees into neighbouring countries. When denied their right to return, they launched a military assault, in 1990. A peace agreement, reached in August 1993, ensured repatriation for the refugees and installed a power-sharing government, with a transition to be supervised by a United Nations peacekeeping mission.133 Within hours of the assassination of President Habyarimana, on 6 April 1994, it became evident that Hutu extremists who had not accepted the peace agreement had set sinister plans. This time, they intended to go beyond the earlier strategy involving persecution of the Tutsi with a view to expulsion. Soon journalists, diplomats and human rights activists began speaking of genocide being committed. As civil war raged during April, May and June, hundreds of thousands of Tutsi, as well as those ‘progressive Hutu’ who stood in the way of the murderous enterprise, were butchered. The United Nations mission did little to prevent the carnage, and the Security Council actually ordered the withdrawal of most of the peacekeepers. By mid-July, the superior military forces of the Tutsi-led Rwandese Patriotic Front had routed the ge´nocidaires. Estimates of the carnage vary from 500,000 to 1 million and even more.134 In contrast with the wars in the Balkans, from the ﬁrst weeks of the Rwandan genocide the Security Council used language indicating its new focus on individual criminal accountability. It initially condemned the violence in a general way, calling upon all concerned ‘to respect fully international humanitarian law’.135 On 30 April 1994, the President of the Security Council declared that ‘persons who instigate or participate in such acts are individually responsible’. Borrowing language from article II of the Genocide Convention, but without mentioning the word ‘genocide’, the President said: ‘In this context, the Security Council recalls that the killing of members of an ethnic group with the intention of destroying such a group in whole or in part constitutes a crime punishable under international law.’136 The Security Council resolution of 17 May 1994, in the preamble, again recalled the language of the Genocide Convention, but still avoided the ‘g-word’ itself.137 The resolution conﬁrmed the Council’s request to the Secretary-General ‘to present a report as soon as possible on the investigation

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‘Letter from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General, transmitting the Peace Agreement signed at Arusha on 4 August 1993’, UN Doc. A/48/824-S/26915 (1993). Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 110. UN Doc. S/RES/912 (21 April 1994), para. 5. ‘Statement by the President of the Security Council’, UN Doc. S/PRST/1994/21. See also the remarks by the Spanish representative, Ya´n˜ez-Barnuevo: UN Doc. S/PV.3377 (16 May 1994).

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of serious violations of international humanitarian law committed during the conﬂict’.138 Czech diplomat Karol Kovanda spoke in the Council of the importance of the report, adding that once it was delivered ‘we will want to know how those responsible will be brought to justice’.139 On 8 June 1994, a Security Council resolution ﬁnally used the word ‘genocide’, noting ‘reports indicating that acts of genocide have occurred in Rwanda’ and stating that ‘genocide constitutes a crime punishable under international law’.140 Referring to the preambular reference to genocide, Ambassador Kovanda said he was looking ‘beyond the horizon’ of the resolution to such measures as a fact-ﬁnding mission to be established by the Security Council, and the determination that certain organisations participating in the carnage might be deemed ‘criminal organisations’. The Argentine representative, Cardenas, said that genocide ‘must be investigated and those responsible cannot go unpunished’.141 In the meantime, the United Nations Commission on Human Rights was convened in an extraordinary session, and a special rapporteur was designated to make a prompt analysis of the situation.142 Professor Rene´ Degni-Segui, a law professor from Coˆte d’Ivoire with a distinguished human rights proﬁle, visited Rwanda in June 1994, accompanied by two other United Nations human rights experts, Bacre Waly Ndiaye and Nigel Rodley, and conﬁrmed the worst. Degni-Segui said the massacres were without precedent in Africa, noting that they were systematic and that the media had incited them. Referring to the deﬁnition of genocide in the 1948 Convention, he said there was evidence that the elements of that crime were present. He said the United Nations should either establish an international ad hoc tribunal or enlarge the jurisdiction of the existing tribunal for the former Yugoslavia in order to bring those responsible for genocide to justice.143 On 1 July 1994, the Security Council, which had been slow to react when the genocide was actually taking place, voted to establish a commission of experts, similar in structure and mandate to the one created for the former Yugoslavia nearly two years earlier.144 The Council expressed its ‘grave concern at the continuing reports indicating that systematic, widespread and ﬂagrant violations of international humanitarian law, including acts of

138 139 140 141 142

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UN Doc. S/RES/918 (1994), para. 18. UN Doc. S/PV.3377 (16 May 1994). UN Doc. S/RES/925 (1994), preamble. UN Doc. S/PV.3388 and Corr.1 (8 June 1994). ‘The Situation of Human Rights in Rwanda’, CHR Res. S-3/1 (25 May 1994); ‘Report of the Commission on Human Rights on its Third Special Session’, UN Doc. E/1994/24/ Add.2, p. 4. ‘The Situation of Human Rights in Rwanda’, A/49/508, S/1994/1157 (1994). See above at pp. 16–18.

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genocide, have been committed in Rwanda’, and recalled that ‘all persons who commit or authorise the commission of serious violations of international humanitarian law are individually responsible for those violations and should be brought to justice’.145 New Zealand made it clear that this was only an initial step, and its Ambassador Colin Keating referred speciﬁcally to the recently established criminal tribunal for the former Yugoslavia. The Commission, composed of the former president of Togo’s Supreme Court, Atsu-KoY Amega, the Attorney General of Guinea, Habi Dieng, and Salifu Fomba, a Malian member of the United Nations International Law Commission, was to investigate the massacres, ‘including the evidence of possible acts of genocide’. The Security Council resolution establishing the Commission made no mention of establishing an international tribunal ‘in order to meet the objections of several delegates who favoured exploring a less expensive forum for prosecutions’.146 The Commission ﬁrst met in mid-August, in Geneva, and then set oV to Rwanda to begin investigations. Even as they began their work, the three experts indicated they would recommend the establishment of an international tribunal.147 But the idea had actually been circulating seriously since the end of June, when United States Secretary of State Warren Christopher indicated his government’s support for an international war crimes tribunal for Rwanda.148 In early August, a senior United States Department of State oYcial, John Shattuck, visited Kigali and convinced Rwanda’s new regime to go along with the idea.149 On 28 September 1994, Rwanda formally requested the United Nations to establish a tribunal.150 Moreover, in his October 1994 address to the United Nations General Assembly, President Pasteur Bizimungu of

145

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148

149

150

UN Doc. S/RES/935 (1994). See: Lyal Sunga, ‘The Commission of Experts on Rwanda and the Creation of the International Criminal Tribunal for Rwanda’, (1995) 16 Human Rights Law Journal 121. Evelyn Leopold, ‘UN Council Creates New War Crimes Commission’, Reuters, 1 July 1994, paraphrased in Virginia Morris and Michael P. Scharf, The International Criminal Tribunal for Rwanda, New York: Transnational Publishers, 1998, vol. I, p. 64. Raymond Bonner, ‘Inadequate UN EVort Seen Against Killers in Rwanda’, New York Times, 4 September 1994, p. 14. Steven Greenhouse, ‘US, Having Won Changes, Is Set to Sign Law of the Sea’, New York Times, 1 July 1994, p. 1. Paul Lewis, ‘Rwanda Agrees to a UN War-Crimes Tribunal’, New York Times, 9 August 1994, p. 6. After losing power in mid-July, the remnants of the Rwandan regime that had presided over the genocide issued a call for creation of an international tribunal, adding that its jurisdiction should cover human rights violations in Rwanda since October 1990, when the civil war had begun: Jerry Gray, ‘At Rwanda Border, Mass Graves and the Start of a Journey Home’, New York Times, 26 July 1994, p. 1. ‘Letter Dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council’, UN Doc. S/1994/1115.

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Rwanda declared that ‘it is absolutely urgent that this international tribunal be established’.151 The Commission of Experts made its formal recommendation on the tribunal in a preliminary report issued at the end of September 1994: ‘[T]o enhance the fair and consistent interpretation, application and adjudication of international law on individual responsibility for serious human rights violations and to eVect the most eYcient allocation of resources, the jurisdiction of the International Criminal Tribunal for the former Yugoslavia should be expanded to permit cases concerning the situation in Rwanda to be brought under it.’152 Apparently, the Commission had initially favoured a stand-alone body, but bowed to United States pressure and proposed an enlargement of the ICTY’s jurisdiction so as to handle cases from Rwanda rather than the creation of a totally new institution.153 In response to concerns that this approach might send a signal that the Rwanda tribunal was of subordinate status to its Yugoslav counterpart,154 the United States, joined by New Zealand, circulated a revised proposal for an independent entity, with its own trial chambers, but with a shared appeals chamber and prosecutor.155 This time China, which had accepted the ICTY a year and a half earlier, raised concerns.156 The Yugoslav wars had a clear international dimension, whereas 151 152

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155

156

UN Doc. S/PV.3453, p. 14 (1994). ‘Preliminary Report of the Independent Commission of Experts established in accordance with Security Council Resolution 935 (1994)’, UN Doc. S/1994/1125 (1994), para. 149. Raymond Bonner, ‘UN Commission Recommends Rwanda ‘‘Genocide’’ Tribunal’, New York Times, 29 September 1994, p. 13. The criticism continued long after establishment of the Rwanda tribunal. In one article, Professor Makau Mutua called the ICTR ‘a sideshow’. He continued: ‘The establishment of the ‘‘other’’ tribunal, the Rwanda Tribunal, was possible because the Yugoslav Tribunal had set a precedent for such action by the international community. The UN and the powerful states that control it could not reject a tribunal for Rwanda when they had set one up for the former Yugoslavia; formally, white European lives were put on the same footing with black African lives. The overlapping conﬂicts, which had been so brutal and barbaric, had taken place in front of the television camera, making it impossible to set up a process for prosecuting one group of perpetrators and not the other. Nevertheless, the Rwanda Tribunal was an afterthought, a fact underscored by its grafting to the Yugoslav Tribunal.’ See: Makau Mutua, ‘From Nuremberg to the Rwanda Tribunal: Justice or Retribution?’, (2000) 6 BuValo Human Rights Law Review 77, at p. 85. James Bone, ‘US Urges Separate Genocide Court for Rwanda’, The Times, 5 October 1994. One observer has suggested that there were also proposal misgivings by some Council members that expansion of the existing ad hoc jurisdiction would lead to a single tribunal that would gradually take on the characteristics of a permanent judicial institution. See: Payam Akhavan, ‘The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment’, (1996) 90 American Journal of International Law 501, at p. 512. Raymond Bonner, ‘UN Commission Recommends Rwanda ‘‘Genocide’’ Tribunal’, New York Times, 29 September 1994, p. 13.

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the Rwandan genocide was an essentially internal matter, and China was troubled about the precedent of a Security Council-mandated body venturing into the domaine reserve´ of sovereign States. China did not obstruct the process, however, and abstained in the ﬁnal vote. The real diYculties came from the new Rwandan regime itself. While supporting the proposal in principle, it disagreed with many of the modalities. By pure chance, Rwanda was actually serving a two-year term as an elected member of the Security Council. But after initially promoting the idea with some enthusiasm, Rwanda became increasingly negative about the venture as the negotiations wore on.157 ‘The realization that an international tribunal is not equipped to undertake a prosecution of thousands of detainees was probably one of the reasons for which the Government of Rwanda eventually withdrew its support for the International Tribunal’, observed two United Nations insiders.158 Rwanda expressed several disagreements with the form the tribunal was taking, including the prohibition of capital punishment, the limitation on temporal jurisdiction to the 1994 calendar year, the lack of an independent prosecutor and appeals chamber, a desire to exclude nationals of ‘certain countries’ believed to be complicit in the genocide from nominating judges, the possibility that sentences might be served outside Rwanda, and the refusal to commit to locating the seat of the tribunal within Rwanda itself. Adoption of the Security Council resolution was delayed by a week, as United Nations legal adviser Hans Corell travelled to Kigali to try to win the support of Rwanda.159 He was unsuccessful, and Security Council Resolution 955 was adopted on 8 November 1994 with one dissenting vote, that of Rwanda,160 and an abstention, from China.161

157

158

159

160

161

Peter Smerdon, ‘PM Paints Bleak View of Rwanda’, Guardian, 9 August 1994, p. 11; Barbara Crossette, ‘Rwanda Asks Quick Start of Tribunal’, New York Times, 9 October 1994, p. 19; David Beresford, ‘Rwanda Dead ‘‘Need Justice’’; General Warns Peace is Impossible Unless the Killers are Brought before the Courts’, Guardian, 24 September 1994, p. 17; Victoria Brittain, ‘Rwanda Threatens to Bypass UN and Start Genocide Trials’, Guardian, 14 September 1994, p. 10. D. Shraga and R. Zacklin, ‘The International Criminal Tribunal for Rwanda’, (1996) 7 European Journal of International Law 501, at p. 504. ‘UN Delays Vote on Rwanda Panel’, New York Times, 1 November 1994, p. 17; Raymond Bonner, ‘Rwandans Divided on War-Crimes Plan’, New York Times, 2 November 1994, Section A, p. 10; ‘Major Obstacles Remain Over Court’, Reuters World Service, 6 November 1994. More moderate members of the Rwandan regime felt they should accept the Resolution despite disagreement with some of the conditions, but apparently the hard-line vice-president and military supremo Paul Kagame prevailed. See: Raymond Bonner, ‘Rwandans Divided on War-Crimes Plan’, New York Times, 2 November 1994, p. 10. The Chinese representative said it was ‘an incautious act to vote in a hurry on a draft resolution and statute that the Rwanda Government still ﬁnds diYcult to accept’. UN Doc. S/PV.3453, p. 11 (1994).

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As it had done a year earlier in establishing the ICTY, the Security Council made an explicit reference to Chapter VII of the Charter. It determined that ‘genocide and other systematic, widespread and ﬂagrant violations of international humanitarian law’ committed in Rwanda ‘constitute a threat to international peace and security’. The Resolution referred to the reports of Special Rapporteur Degni-Segui, as well as to the preliminary report of the Commission of Experts that the Council had established earlier in the year. Unlike the case with the ICTY, the Secretary-General did not accompany the draft statute with an explanatory report. Perhaps this seemed unnecessary, given that most of the ICTR Statute was essentially identical to that of the ICTY. Nevertheless, a few months later, the Secretary-General produced a report on the ICTY Statute that accounts for some of the choices and provides helpful guidance for purposes of interpretation.162 The ICTR Statute is one article shorter, because the list of crimes within the jurisdiction of the tribunal diVers slightly. Speciﬁcally, the war crimes provisions reﬂect the fact that the Rwandan genocide took place within the context of a purely internal armed conﬂict, and there are also minor diVerences in the deﬁnition of crimes against humanity. The ﬁrst trial judges were elected in early 1995, and formally sworn into oYce in June. There was no need to recruit a new prosecutor or to ﬁnd appellate judges, because the Statute simply added these to the responsibilities of the corresponding institutions at the ICTY. The Tribunal issued its ﬁrst indictments on 12 December 1995, accusing eight persons of genocide with respect to the mass killing of several thousand men, women and children in the Kibuye Prefecture of western Rwanda.163 By March 1996, the interim military ruler of Rwanda during the genocide was taken into custody, a development that indicated the ICTR might actually do rather better than its European counterpart in prosecuting those most responsible for the atrocities rather than their underlings and subordinates. But if the ICTR was initially more successful than the ICTY in obtaining custody of high-level defendants, its operations went less smoothly. It was plagued with administrative diYculties and even corruption. At one point, the United Nations had to intervene, ﬁring the two most senior oYcials of the Tribunal, the Registrar and the Deputy Prosecutor. There were also severe problems with unethical defence lawyers, who took legal aid fees from the Tribunal but then split them with their clients. The Rwandan prisoners were fractious and uncooperative, sometimes going on hunger strikes or refusing to attend trials. Relations with Rwanda itself, whose cooperation was 162

163

‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134. Navanethem Pillay, ‘The Rwanda Tribunal and its Relationship to National Trials in Rwanda’, (1998) 13 American University International Law Review 1469.

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essential for investigations, were often stormy. Trials were tediously slow, with some defendants being held in detention for several years before actually having their day in court. Frustrated by irregularities in the arrest and detention of suspects, the Appeals Chamber granted the motion of an important defendant and permanently stayed all proceedings in the case. Enraged at the resulting impunity, Rwanda threatened it would block all access of ICTR oYcials to its territory, a move that would eVectively shut down the institution’s ability to operate. A diVerently constituted Appeals Chamber ate humble pie, and reversed the decision.164 The ICTR was always somewhat smaller in scale than the ICTY, and its budget reﬂected this. It suVered from the isolation of Arusha, which hampered its ability to attract top-level judges, prosecution staV and defence counsel. Nevertheless, it did what it was set up to do, prosecuting many of the leaders of the 1994 genocide. It appeared not as eager as the ICTY to adopt a ‘completion strategy’, but by 2004 the ICTR had also promised the Security Council that it would wind up its operations by 2010. Popular as they were at the time, there was also a general recognition that the ad hoc tribunals were a temporary and inadequate solution to a more fundamental need, that of a permanent international criminal court. The idea had been in circulation since Nuremberg, and even before, but only in 1989 did the matter return deﬁnitively to the agenda of the General Assembly. Responsibility was assigned to the International Law Commission, a United Nations expert body with authority over the codiﬁcation and progressive development of international law. The Commission’s interim reports, issued in the early 1990s, no doubt inﬂuenced the drafters of the ad hoc tribunal statutes. The ﬁnal version of the Commission’s draft statute, submitted to the General Assembly in 1994, looked rather like a permanent version of the ad hoc tribunals. Aside from similarities in structure and subject-matter jurisdiction, an essential feature of the proposed International Criminal Court was its subordination to the Security Council. The General Assembly laboured over the Commission’s draft for four years, culminating in the 1998 Diplomatic Conference at which the Rome Statute of the International Criminal Court was adopted. The text had been dramatically modiﬁed from the original conception of the International Law Commission. Many of the changes were of a highly technical nature. The deﬁnitions of crimes were presented in great detail, in comparison with the relatively laconic provisions of the ad hoc tribunal statutes. To some extent, they reﬂected interpretations of the scope of the crimes that had been developed in the early case law of the ICTY. But the major substantive diVerence was a considerable weakening of Security Council control over the Court. Although 164

The Barayagwiza case is discussed below at pp. 538–541.

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the Security Council could still refer cases to the ICC, its ability to block prosecution was constrained by comparison with the 1994 draft of the International Law Commission. The Rome Statute left largely unanswered the diYcult issue of prosecution for aggression, a matter that article 39 of the Charter of the United Nations indicates is clearly within the purview of the Security Council. Elimination of the formal link between the Security Council and the International Criminal Court largely explains the diYculties that the United States has had with the Statute as adopted at Rome in July 1998.165 The Rome Statute entered into force on 1 July 2002, having obtained more than the sixty requisite ratiﬁcations or accessions. But the Statute speciﬁed that it could only apply to acts committed subsequent to its entry into force. The rapid pace of ratiﬁcation meant that a growing number of countries facing the kinds of conﬂicts and tensions likely to attract international criminal prosecution would henceforth be subject to the jurisdiction of the ICC. On 31 March 2005, the Security Council opted in favour of the ICC rather than pursuing the creation of yet another ad hoc tribunal for the Darfur region in Western Sudan. More than anything else, the move indicated that a generation had passed, and that the existence of the permanent court meant there was no longer a need for ad hoc tribunals. But the ad hoc tribunal approach remains a viable option for situations that fall outside the ICC’s temporal, geographic or personal jurisdiction. The civil war that raged in Sierra Leone during the 1990s is one such case. The establishment of the two ad hoc tribunals, in 1993 and 1994, prompted many other initiatives aimed at creating similar institutions as mechanisms for post-conﬂict justice. It became increasingly evident that it was unlikely the Security Council would repeat what it had done for the former Yugoslavia and Rwanda. The post-Cold War euphoria that had contributed to unanimity in the Council during the early 1990s began to wane. Moreover, political interests of permanent members of the Security Council in speciﬁc circumstances meant an international tribunal option was unlikely to succeed. This was notably the case with respect to Cambodia, where Chinese interests, not to mention those of Russia and France, discouraged the creation of an ad hoc tribunal by the Security Council. There was also considerable frustration amongst those wealthy countries who provided most of the funding for the tribunals with the spiralling costs of the two institutions. Finally, there was the suggestion that the United States was seeking to experiment with other modes of post-conﬂict justice as a kind of antidote to the International Criminal Court, to which it was increasingly hostile.

165

William A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’, (2004) 15 European Journal of International Law 701.

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The Secretary-General also showed increased unwillingness to support proposals to create new judicial institutions. When in 1999 three experts appointed by the Secretary-General to examine alternative justice mechanisms for Cambodia reported back that an international tribunal was the only really viable solution, the Secretary-General reacted cautiously. Noting that this was a matter for decision by the Security Council alone, he nevertheless betrayed a preference for other options.166 The Group of Experts had suggested, for example, that a tribunal might be established by the Security Council acting under Chapter VI of the Charter, rather than Chapter VII, something that would require the consent of Cambodia.167 It also considered the creation of a tribunal by the General Assembly,168 and even by the Secretary-General himself or the Economic and Social Council.169 Eventually, discussion quickly coalesced on an approach using national courts with signiﬁcant international involvement. Years of frustrating negotiations ensued as the United Nations struggled to establish a post-conﬂict justice institution in Cambodia. In early 2000, an international fact-ﬁnding commission for East Timor created by the Commission on Human Rights proposed the establishment of an ‘international human rights tribunal’, which was to consist of judges appointed by the United Nations, preferably with the participation of members from East Timor and Indonesia. The tribunal was to sit in Indonesia, East Timor and in any other relevant territory and ‘to receive the complaints and to try and sentence those accused by the independent investigation body of serious violations of fundamental human rights and international humanitarian law which took place in East Timor since January 1999 regardless of the nationality of the individual or where that person was when the violations were committed’.170 The nomenclature was a bit odd, because the report was clear enough that this was to be a criminal tribunal, rather than a human rights court along the lines of the European Court of Human Rights or the 166

167

168

169 170

‘Identical letters dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council’, UN Doc. A/53/850S/1999/231. See: Craig Etcheson, ‘Accountability Beckons During a Year of Worries for the Khmer Rouge Leadership’, (2000) 6 ILSA Journal of International and Comparative Law 507. ‘Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135’, UN Doc. A/53/850-S/1999/231, annex, para. 142. See also: Steven R. Ratner, ‘The United Nations Group of Experts for Cambodia’, (1999) 93 American Journal of International Law 948. ‘Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135’, UN Doc. A/53/850-S/1999/231, para. 146. Ibid., para. 147. ‘Report of the International Commission of Inquiry on East Timor to the SecretaryGeneral’, UN Doc. A/54/726, S/2000/59, para. 153. See: Chandra Lekha Sriram, ‘Revolutions in Accountability: New Approaches to Past Abuses’, (2003) 19 American University International Law Review 301, at pp. 408–409.

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Inter-American Court of Human Rights. Again, the Secretary-General stopped short of endorsing a call for a new international tribunal, conﬁning himself to the uncontroversial mantra that perpetrators should be held accountable for their actions.171

Establishing the Special Court for Sierra Leone Located on the West African coast, Sierra Leone is a former British colony that was ruled by a succession of corrupt autocrats until rebellion broke out in 1991. To the extent that the rebels were animated by any progressive reform agenda, this quickly disappeared as the conﬂict degenerated into a campaign of brutality and atrocity whose principal victims were the rural peasants. Only in 1999 did the rebel groups advance on the capital, Freetown, destroying much of the city and prompting the fragile government to sue for peace. The Lome´ Peace Agreement, reached on 7 July 1999, provided for a power-sharing government in which the rebel Revolutionary United Front would be given cabinet positions. Combatants on all sides were granted an amnesty. The parties to the Agreement were the Government of Sierra Leone and the Revolutionary United Front, but it received the benediction of what were called the ‘moral guarantors’, including Togo, the Commonwealth, the Economic Community of West African States (ECOWAS), the Organization of African Unity (OAU, now known as the African Union) and the United Nations.172 The Special Representative of the Secretary-General of the United Nations appended, somewhat belatedly, a handwritten reservation to the agreement declaring that the United Nations could not endorse any amnesty for war crimes, crimes against humanity and genocide: ‘The United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.’173 There was a renewed outbreak of ﬁghting in Sierra Leone for a period of a few weeks in May 2000, well before the Truth and Reconciliation Commission 171

172

173

‘Identical letters dated 31 January 2000 from the Secretary-General to the President of the General Assembly, the President of the Security-Council and the Chairperson of the Commission on Human Rights’, UN Doc. A/54/726, S/2000/59. Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Lome´, 7 July 1999, art. XXXIV. See: K. Gallagher, ‘No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone’, (2000) 23 Thomas JeVerson Law Review 149; Daniel J. Macaluso, ‘Absolute and Free Pardon: The EVect of the Amnesty Provision in the Lome´ Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone’, (2001) 27 Brooklyn Journal of International Law 347. The statement by the Special Representative of the Secretary-General does not appear in the text of the Agreement published by the United Nations (UN Doc. S/1999/777). The statement is discussed in UN Doc. S/1999/836, para. 54.

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had been established, but after its enabling legislation had been adopted. The Government quickly mastered the situation, arresting many Revolutionary United Front supporters and, in eVect, shifting in its favour the fragile balance in the power-sharing that had been negotiated at Lome´. Then the Government of Sierra Leone ‘reassessed’174 its position with respect to the amnesty. Sierra Leone’s President Kabbah wrote to the Security Council requesting that it establish an international tribunal to prosecute members of the Revolutionary United Front.175 The President explained that ‘[t]he purpose of such a court is to try and bring to credible justice those members of the Revolutionary United Front (RUF) and their accomplices responsible for committing crimes against the people of Sierra Leone and for the taking of United Nations peacekeepers as hostages’. He made explicit reference to the amnesty in the Lome´ Agreement: As you are aware, the atrocities committed by the RUF [Revolutionary United Front] in this country for nearly 10 years in its campaign of terror have been described generally as the worst in the history of civil conﬂicts. In July 1999, my Government and the leadership of the RUF signed the Lome´ Peace Agreement. The aim of this Agreement was to bring peace and a permanent cessation to those atrocities and the conﬂict. As a prize for such peace, my Government even conceded to the granting of total amnesty to the RUF leadership and its members in respect of all the acts of terrorism committed by them up to the date of the signing of that Peace Agreement.176

But Kabbah said that the Revolutionary United Front had ‘since reneged on that Agreement’. Attached to the letter was a proposed ‘Framework for the special court for Sierra Leone’. It stressed that the purpose of the court would be to prosecute members of the Revolutionary United Front: The mandate of the court could be designed to be narrow in order to prosecute the most responsible violators and the leadership of the Revolutionary United Front. This could result in the numbers being limited to the dozens. This will also allow the court to be quick and eYcient in its tasks of doing justice while at the same time breaking the command structure of the criminal organization responsible for the violence.177

174

175

176 177

Solomon Berewa, ‘Addressing Impunity using Divergent Approaches: The Truth and Reconciliation Commission and the Special Court’, in Truth and Reconciliation in Sierra Leone, Freetown: UNAMSIL, 2001, at p. 56. ‘Letter dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations addressed to the President of the Security Council’, UN Doc. S/2000/ 786, annex. Ibid. Ibid.

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Nowhere did President Kabbah attempt to clarify whether the Court was to be conﬁned to post-Lome´ oVences, thereby respecting the amnesty provision in the Lome´ Agreement, or whether he intended for it to override the amnesty. The Security Council responded positively to Kabbah’s request. On 14 August 2000, in Resolution 1315, the Council instructed the Secretary-General to negotiate an agreement with the Government of Sierra Leone with a view to establishing a special court. The Resolution’s preamble noted that ‘the Special Representative of the Secretary-General appended to his signature of the Lome´ Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’.178 The Resolution addressed a number of speciﬁc details concerning jurisdiction and related matters, although it did not speak speciﬁcally to the issue of the amnesty, nor did it propose the temporal jurisdiction of the new tribunal (something which would have, indirectly, indicated a position on the amnesty issue, because had the Council stated that the court would have jurisdiction over pre-Lome´ oVences this would have implied a retraction of the amnesty). The Resolution ‘[r]ecogniz[ed] that, in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace’.179 The Council ﬂagged the signiﬁcance of the Truth and Reconciliation Commission (it had also done this in its August 1999 resolution welcoming the Lome´ Agreement), which had been created largely in response to the amnesty.180 There was no reference to the Revolutionary United Front in the Council Resolution. Instead, it said that the proposed court should have jurisdiction over all perpetrators, whatever their political aYliation: ‘Recommends further that the special court should have personal jurisdiction over persons who bear the greatest responsibility for the commission of [crimes against humanity, war crimes and other serious violations of international humanitarian law], including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.’181 Following talks between the United Nations and the Government of Sierra Leone, in early October 2000 the Secretary-General presented a draft statute

178 179 180

181

UN Doc. S/RES/1315 (2000), preamble, para. 5. Ibid., preamble, para. 7. Ibid., preamble, para. 4. Creation of a Truth and Reconciliation Commission was projected in the Lome´ Agreement. Enabling legislation was enacted by Sierra Leone’s Parliament in February 2000, although the Commission did not become operational until July 2002. Ibid., operative paragraph 3.

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for the special court. It was accompanied by a lengthy report that discussed the relevant issues in detail. The Secretary-General explained that the proposed court was diVerent in nature from the two existing ad hoc tribunals, in that it would not be established by Security Council resolution but rather by agreement between the United Nations and the Government of Sierra Leone. Although the core of its jurisdiction was to be crimes against humanity, war crimes and other serious violations of international humanitarian law, as had been proposed in the August 2000 Security Council resolution, the court would also be empowered to prosecute certain crimes under the national law of Sierra Leone. Some judges were to be appointed by the United Nations, while others would be designated by the Government of Sierra Leone. The Secretary-General described the proposed court as a ‘treaty-based sui generis court of mixed jurisdiction and composition’.182 Under-SecretaryGeneral for Legal AVairs Hans Corell, who was responsible for negotiating the agreements on behalf of the United Nations, said: ‘The Special Court for Sierra Leone is diVerent from earlier ad hoc courts in the sense that it is not being imposed upon a state . . . It is being established on the basis of an agreement between the United Nations and Sierra Leone – at the request of the Government of Sierra Leone.’183 The Secretary-General’s Report observed that in negotiations about the draft statute of the special court, the Government of Sierra Leone had ‘concurred with the position of the United Nations and agreed to the inclusion of an amnesty clause which would read as follows: ‘‘An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.’’ ’184 Consequently, noted the Secretary-General, ‘[w]ith the denial of legal eVect to the amnesty granted at Lome´, to the extent of its illegality under international law, the obstacle to the determination of a beginning date of the temporal jurisdiction of the Court within the pre-Lome´ period has been removed’.185 The draft statute closely resembled that of the ICTR, although there were some signiﬁcant diVerences. Besides the mixed regime for appointment of judges and prosecutors, funding of the institution was to be facilitated by voluntary contributions from States rather than from the general coVers of the United Nations. Although the Secretary-General’s report did not refer to the

182

183

184

185

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 9. Celina Schocken, ‘The Special Court for Sierra Leone: Overview and Recommendations’, (2002) 20 Berkeley Journal of International Law 436, at p. 443. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 24. Ibid., para. 24.

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experience of the two existing ad hoc tribunals as a justiﬁcation for some of its proposals, the conﬁguration of the court was clearly inﬂuenced by lessons the United Nations had learned from its experience with international justice in the former Yugoslavia and Rwanda. From the earliest days of the ICTY, an area of great controversy had been whether prosecution should be directed towards certain categories of oVenders. Especially in its early years, the ICTY had proceeded against a number of very minor and insigniﬁcant participants in the conﬂict, and even the ICTR had pursued some relatively low-level culprits. The Security Council resolution indicated that the Sierra Leone court should only prosecute ‘those who bear the greatest responsibility’, something the Secretary-General said was an indication of a limitation on the number of accused by reference to their command authority and the gravity and scale of the crime. ‘I propose, however,’ wrote the Secretary-General, ‘that the more general term ‘‘persons most responsible’’ should be used.’186 Negotiations concerning the draft statute of the proposed court continued for more than a year. There were several written exchanges between the Secretary-General and the Security Council on speciﬁc details, something that had not occurred with the two earlier tribunals.187 On the other hand, after the initial consultations in September 2000, there is no evidence of any subsequent contribution of a signiﬁcant and substantial nature from the Government of Sierra Leone to the shape of the new institution.188 The obstacle to the immediate establishment of the Court was funding. The Secretary-General met with the Security Council on 1 June 2001, outlining the poor response to his appeal for support and opening the debate about ‘the need to downsize the operation of the Special Court commensurate with the amount of funds likely to be made available’.189 Not until late 2001 had suYcient pledges been received and funds deposited for the Secretary-General to proceed to establish the Court. On 16 January 2002, a formal agreement 186 187

188

189

Ibid., para. 29. ‘Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2000/1234; ‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/ 40; ‘Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/95; ‘Letter dated 12 July 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/693. There are several references to the views of the Government of Sierra Leone in the initial report of the Secretary-General. In 2001, the Government had been consulted on the exchanges between the Secretary-General and the Security Council and by letter of 9 February 2001 it had ‘expressed its willingness to accept the texts’. See: ‘Letter dated 12 July 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/693, p. 1. ‘Letter dated 12 July 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/693, p. 2.

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was reached between the United Nations, represented by its Assistant Secretary-General for Legal AVairs, Hans Corell, and the Government of Sierra Leone, represented by its Attorney-General and Minister of Justice, Solomon Berewa.190 Annexed to the Agreement was the Statute of the Special Court for Sierra Leone.191 Article 21 of the Agreement said it would enter into force on the day after both Parties had notiﬁed each other in writing that the legal requirements for entry into force had been complied with. A few months later, in March 2002, the Parliament of Sierra Leone enacted legislation concerning implementation of the Statute.192 The purpose of the legislation was to provide a legal framework for the activities of the Court within Sierra Leone, and to impose obligations upon the Government of Sierra Leone to cooperate with the Court. The Memorandum of Objects and Reasons stated that the object of the Bill was to make provision for the ratiﬁcation and implementation of the Agreement between the Government and the United Nations. The preamble of the Act said that the Agreement had been signed under the authority of the President, but that ratiﬁcation by Act of Parliament was a requirement. On 11 April 2002, Sierra Leone’s Minister of Foreign AVairs, Ahmed Ramadan Dumbuya, wrote to the Secretary-General to inform him that with presidential assent to the Special Court Act on 29 March 2002, Sierra Leone was in compliance with the legal requirements for entry into force of the Agreement. The same day, a reciprocal message was transmitted to Sierra Leone from Hans Corell and, accordingly, the Agreement entered into force on 12 April 2002.193 When the SCSL judges were sworn into oYce in December 2002, the institution became fully operational. Its ambitions were always much more modest than those of the ICTY and ICTR. Trials were to be completed within three years, and appeals shortly afterwards. The budget was a fraction of that of the other tribunals. Yet this ‘lean’ version of an international tribunal also beneﬁted from much of the acquired experience in The Hague and Arusha, including a staV of whom many had worked for the other tribunals. Indictments were soon prepared and within months, in March 2003, several arrests were made. Perhaps the most important defendants did not make it to trial: rebel leader Foday Sankoh died while in custody in August 2003, and Liberian

190

191

192

193

‘Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone’, Freetown, 16 January 2002. The establishment of the Court is discussed in some detail in Kallon et al. (SCSL-04-15, 16 and 17-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004. Special Court Agreement (Ratiﬁcation) Act 2002, Supplement to the Sierra Leone Gazette vol. CXXX. No. II, 7 March 2002. Kallon et al. (SCSL-04-14, 15 and 16-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 62.

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President Charles Taylor escaped justice when he obtained asylum in Nigeria. But a senior cabinet minister in the government was arrested, as were other leaders of the various warring factions. The Court authorised the indictments of the nine defendants in custody to be joined in three groups, based upon the combatant organisation to which the accused had belonged. Two of the trials began in June 2004, and the third in early 2005. The Court will not ﬁnish its work within the projected three-year deadline, but it should not be too far behind.

Completing the work of the tribunals The relevant materials concerning the establishment of the ICTY give little guidance as to when its work is to be completed. The Statute itself leaves open the end point of temporal jurisdiction. Nevertheless, the Secretary-General’s Report on the draft ICTY Statute said that ‘[a]s an enforcement measure under Chapter VII, however, the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto’.194 Accordingly, the Security Council Resolution establishing the ICTY ascribes jurisdiction over crimes committed ‘between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace’.195 When it created the ICTR, the Council decided that prosecutions could only address acts committed in the calendar year 1994.196 But even then, at the rate at which each tribunal has operated, there are enough suspects to keep them going for many decades. It would seem that ad hoc tribunals are almost by deﬁnition confronted with the diYculty of knowing when to stop. Yet they develop a momentum of their own that soon becomes unhinged from the rationale that justiﬁed their creation in the ﬁrst place. Hundreds, perhaps thousands, of professionals and other employees depend upon the tribunals for their livelihood and this, too, is a factor that complicates debate about ‘completion’. Perhaps only intuitively, in establishing the third of the ad hoc tribunals, the Secretary-General understood the need to better circumscribe the mandate, and to impose parameters that would ensure a relatively brief life for the Special Court for Sierra Leone. The Secretary-General’s Report on the draft SCSL Statute said the lifespan of the Court would be determined by a subsequent agreement between the parties, referring to ‘an indication of the capacity acquired by the local courts to assume the prosecution of the remaining cases, or the unavailability of 194

195 196

‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 28. UN Doc. S/RES/827 (1993), para. 2. UN Doc. S/RES/955 (1994), para. 1.

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resources’ as the relevant considerations.197 The original draft documents prepared by the Secretary-General envisaged terms of appointment of four years for judges and for the Prosecutor, but this was reduced to three years in the ﬁnal version. In correspondence with the Security Council, the United Nations Secretary-General spoke of ‘a functioning Court over three years, which in my view is the minimum time required for the investigation, prosecution and trial of a very limited number of accused’.198 The ﬁrst annual report of the Court makes reference to ‘the Court’s third and ﬁnal year’.199 The budget projections made it clear that the SCSL would handle a very limited number of cases, and would aim to complete its trials at ﬁrst instance within three years of the start of operations. The ICTY did not begin seriously discussing the issue of concluding its work until 2000.200 Following the analysis of the operations of the Tribunal by a ﬁve-member expert panel, the judges presented a report to the SecretaryGeneral in which they projected that if the status quo were maintained, and there were no changes to penal policy or the rules of procedure, ‘the Tribunal will be unable to fulﬁl its mission before 2016’. The projection did take appeals into account.201 The judges said that if a number of modiﬁcations were made, including the designation of ad litem judges, trials could be completed by 2007.202 The Security Council reacted by authorising the appointment of ad litem judges. The Resolution, which amended the Statute, linked this measure with the need for both tribunals ‘to expedite the conclusion of their work at the earliest possible date’.203 In June 2002, the ICTY proposed a ‘completion strategy’ in which it said it would wrap up investigations by the end of 2004, complete all trials at ﬁrst instance in 2008, and shut its doors by 2010.204 In addition to various structural reforms, the strategy involved focusing on ‘trying the most senior oVenders of crimes which most seriously violate international public order’ as well as referring

197

198

199 200

201 202

203 204

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 28. ‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/40, para. 12. First Annual Report of the SCSL, p. 31. See: Daryl A. Mundis, ‘The Judicial EVects of the ‘‘Completion Strategies’’ on the Ad Hoc International Criminal Tribunals’, (2005) 99 American Journal of International Law 142; Larry D. Johnson, ‘Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity’, (2005) 99 American Journal of International Law 158. Seventh Annual Report of the ICTY, UN Doc. A/55/273-S/2000/777, annex, para. 336. Ibid., para. 342. See: Daryl A. Mundis, ‘Improving the Operation and Functioning of the International Criminal Tribunals’, (2000) 94 American Journal of International Law 759. UN Doc. S/RES/1329 (2000), preamble. UN Doc. S/2002/678, p. 5.

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cases from the ICTY to national courts.205 The Security Council conﬁrmed its agreement with the strategy.206 At a special plenary held in September 2002, the ICTY judges amended the RPE to authorise the transfer of cases from the ICTY to national courts.207 Only two years earlier, they had rejected the proposal on a number of grounds.208 In early 2003, the Tribunal reached an agreement with the OYce of the High Representative for Bosnia and Herzegovina concerning the establishment of a special chamber for war crimes prosecutions in the State Court of Bosnia and Herzegovina.209 This development was subsequently praised by the Security Council, which called upon the donor community to support the creation of the special chamber.210 The ICTR moved somewhat more slowly on a completion strategy. Only in August 2002 did the Security Council authorise ad litem judges for the ICTR. As it had done a year earlier with the ICTY, the Council noted that the measure was intended to enable the ICTR to expedite the conclusion of its work at the earliest possible date.211 The initiative to proceed with completion came from the General Assembly, when it was adopting the annual budget of the ICTR in December 2002.212 The following year, the ICTR developed a completion strategy that envisaged completing the trials of detained persons in 2007, those not yet apprehended by 2009, and those not yet indicted by 2011.213 This was subsequently revised, and in its 2002 Annual Report the ICTR stated that its mandate could be completed by 2007 or 2008.214 The ﬁrst draft of the ICTR’s Completion Strategy was presented to United Nations headquarters in July 2003.215

205

206 207

208

209 210

211 212 213 214 215

Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 4. Also: Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 6. UN Doc. S/PRST/2002/21. Also: UN Doc. S/RES/1503 (2004), preamble. ICTY RPE, Rule 11bis. They were two months behind the ICTR, which had made a similar amendment at its plenary in July 2002. ‘Report on the Operation of the International Tribunal for the Former Yugoslavia, Submitted by Judge Claude Jorda, President, on Behalf of the Judges of the Tribunal’, UN Doc. A/55/382-S/2000/865, Annex I, para. 52. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, paras. 6, 14, 347. UN Doc. S/RES/1503 (2004), para. 7; UN Doc. S/RES/1534 (2004), para. 10. See: Michael Bohlander, ‘Last Exit Bosnia – Transferring War Crimes Prosecution for the International Tribunal to Domestic Courts’, (2003) 14 Criminal Law Forum 59; Mark S. Ellis, ‘Coming to Terms with its Past – Serbia’s New Court for the Prosecution of War Crimes’, (2004) 22 Berkeley Journal of International Law 165. UN Doc. S/RES/1431 (2002). UN Doc. A/RES/57/289 (2002). UN Doc. A/58/269, para. 3. Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, paras. 22, 23. Eighth Annual Report of the ICTR, UN Doc. A/58/140-S/2003/707, annex, para. 2.

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Pressure on the tribunals to ﬁnish their work came from Washington, and did not sit well with everyone.216 The Parliamentary Assembly of the Council of Europe adopted a resolution condemning this: ‘Pressure from the United States administration to close down the two International Criminal Tribunals in The Hague and in Arusha is unacceptable. It represents political interference in a judicial process aimed at seeking justice for the hundreds of thousands of victims of the crimes committed in the former Yugoslavia and Rwanda.’217 Critics also complained that the measures being taken by the tribunals, such as the referral of cases to national courts, and changes to evidentiary rules, were not authorised by the statutes.218 Judge Hunt of the ICTY Appeals Chamber expressed concern that pressure to complete the mandate had promoted infringements on the rights of the accused, warning: ‘[T]his Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials.’219 In a Resolution adopted in August 2003, the Security Council began to treat jointly the completion strategies of the ICTY and ICTR. It called upon them to complete investigations by the end of 2004, to complete all trial activities at ﬁrst instance by the end of 2008, and to complete all work in 2010.220 After a presentation from the two Presidents of the tribunals hinted that there might be diYculties in fully respecting the dates set out in the completion strategy, the Security Council adopted another resolution reaYrming their importance. The Security Council speciﬁcally addressed the Prosecutors of the two tribunals, calling upon them to determine cases that should be transferred to competent national jurisdictions. The Resolution called upon the tribunals ‘in reviewing and conﬁrming any new indictments, to ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal’. Finally, the Council required the President and Prosecutor to submit a twice-yearly report on progress in implementing the completion strategy, ‘including the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions’.221

216

217 218

219

220

221

Sean D. Murphy, ‘Contemporary Practice of the United States Relating to International Law’, (2002) 96 American Journal of International Law 461, at p. 483. Ibid. Gregory P. Lombardi, ‘Legitimacy and the Expanding Power of the ICTY’, (2003) 37 New England Law Review 887, at pp. 895–896. Milosˇevic´ (IT-02-54-AR73.4), Dissenting Opinion of Judge Hunt, 30 September 2003, para. 22. UN Doc. S/RES/1503 (2004), para. 7. The Council subsequently reaYrmed its view that ICTR trials should be completed by 2008: UN Doc. S/RES/1512 (2003), preamble. UN Doc. S/RES/1534 (2004).

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Legacy of the tribunals The judgments at Nuremberg and Tokyo and the various national war crimes trials associated with them provided the ﬁrst substantial judicial basis for the law of war crimes and crimes against humanity. Some of the principles elaborated in this jurisprudence were further developed in the all-too-rare judgments of national courts in the decades that followed, such as Eichmann,222 Barbie223and Finta.224 But when the ICTY and ICTR began their operations, it was soon apparent just how meagre the authorities were. The same cannot now be said of international criminal law as they complete their work. The three international criminal tribunals leave a highly developed and sophisticated body of law, in which the deﬁnitions and scope of war crimes, crimes against humanity and genocide have been explored, along with the various forms of participation and liability, the available excuses, justiﬁcations and defences, procedural matters, issues concerning the rights of the accused, and the relevant considerations in determining appropriate penalties. Their jurisprudential legacy is the principal subject of this book. There can be no doubt that the case law of the international criminal tribunals will provide immense guidance to the International Criminal Court, as it begins its work. There are signiﬁcant diVerences in the applicable law of the ICC, when compared with that of the ad hoc tribunals, but there is also much common ground. Where judges at the ICC depart from the precedents set by the ad hoc tribunals, they will feel compelled to explain this, and make the relevant distinctions, just as the judges at the ad hoc tribunals have done when they identiﬁed principles of customary law that are at variance with the Rome Statute. Already, the legal principles and norms developed by the United Nations international criminal tribunals have been inﬂuential in the work of the so-called ‘hybrid’ courts, like those established by the United Nations in East Timor and Kosovo. There is also increasing evidence that national courts are relying upon the case law of the international tribunals.225 For example, in the United States some judges have turned to ICTY and ICTR precedents in

222

223

224 225

A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem); A.-G. Israel v. Eichmann, (1968) 36 ILR 277 (Israel Supreme Court). Fe´de´ration nationale des de´porte´s et interne´s re´sistants et patriotes et al. v. Barbie, (1984) 78 ILR 125. R v. Finta, [1994] 1 SCR 701. This is discussed in Robert Cryer, Prosecuting International Crimes, Selectivity and the International Criminal Law Regime, Cambridge: Cambridge University Press, 2005, at pp. 169–170.

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applying the Alien Tort Claims Act226 and the Torture Victims Protection Act,227 as well as in immigration litigation.228 Canadian courts have considered ICTY precedents as a source of comparative criminal law.229 They have also invoked case law of the Tribunals with respect to immigration and refugee law230 and state immunities.231 In Mugesera, the Supreme Court of Canada relied upon rulings of the ICTR in deﬁning the scope of the oVence of inciting genocide.232 Referring to crimes against humanity, which appear in Canadian criminal law and immigration law, the Supreme Court said: ‘Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their ﬁndings should not be disregarded lightly by Canadian courts applying domestic legislative provisions.’233 The Supreme Court of Canada reversed its earlier conclusion, in Finta, that all crimes against humanity required proof of a discriminatory intent, in light of subsequent case law of the ICTY and ICTR specifying that this element was only relevant to the crime against humanity of persecutions.234 Modestly, it also noted that its position on the mental element of crimes against humanity had been endorsed by international case law.235 South Africa’s Constitutional Court has referred to ICTY cases with respect to the scope of war crimes.236 In Australia, ICTR precedents have been cited

226

227

228 229 230

231 232

233 234

235 236

Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1344 (ND GA, 2002); Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir., 2002); In re Agent Orange Products Liability Litigation, [2005] WL 729177 (ED NY); Presbyterian Church of Sudan v. Talisman Energy, 226 FRD 456 (SD NY, 2005); Doe v. Qi, 349 F.Supp.2d 1258 (ND CA, 2004); Doe v. Rafael Saravia, 348 F.Supp.2d 1112 (ED CA, 2004); Cabello Barrueto v. Fernandez Larios, 205 F.Supp.2d 1325 (SD FL, 2002); Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F.Supp.2d 1285 (SD FL, 2003). Ford v. Garcia, 289 F.3d 932 (11th Cir., 2002); Doe v. Qi, 349 F.Supp.2d 1258 (ND CA, 2004). Tagaga v. INS, 228 F.3d 1030 (9th Cir., 2000). R v. Campbell, [2004] CarswellOnt 2170 (Ont. SCJ). Harb v. Canada, [2002] CarswellNat 2954 (FC); Suresh v. Canada, [2002] CarswellNat 7 (SCC); Mugesera v. Canada, [2003] FCJ 1292, [2003] FCA 325 (CA); Bukumba v. Canada, [2004] CarswellNat 216 (FC). Bouzari v. Iran, [2002] CarswellOnt 1469 (Ont. SCJ). Mugesera v. Canada (MCI), 2005 SCC 40, paras. 84–85, referring to Akayesu (ICTR-964-T), Judgment, 2 September 1998 and Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003. Ibid., para. 126. Ibid., para. 144, citing Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 287–292 and Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 460–469. Ibid., para. 174. State v. Wouter Basson, [2004] CCT 30/03.

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on the importance of international law for purposes of statutory interpretation237 as well as for authority on the elements of the crime of genocide.238 Swiss courts have referred to ICTR jurisprudence as authority for the factual issue of whether genocide was committed in Rwanda in 1994.239 British courts have looked to ICTY precedent with respect to state immunities240 and in immigration cases.241 In one judgment, the European Court of Human Rights referred at some length to the pronouncements of ICTY Trial Chambers on the subject of torture.242 In another, the European Court considered deﬁnitions of rape developed in ICTY jurisprudence.243

237 238 239

240 241

242

243

Re Colonel Aird; ex parte Alpert, [2004] HCA 44. Nulyarimma v. Thompson, (1999) 96 FCR 153. Niyonteze, Military Court of Cassation, 27 April 2001, para. 3(d). See: Luc Reydams, ‘International Decisions, Niyonteze v. Public Prosecutor’, (2002) 96 American Journal of International Law 231. Jones v. Saudi Arabia, [2004] EWCA Civ 1394. A, B, C, D, E, F, G, H, Mahmoud Abu Rideh, Jamal Ajouaou v. Secretary of State for the Home Department, Case No: C2/2003/2796 (CA (Civil Div.)), 11 August 2004. Al-Adsani v. United Kingdom (App. No. 35763/97), Judgment, 21 November 2001, [2002] 34 EHRR 11, para. 30, citing Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 144–147, 151, 153–154, Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 454 and Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 466. MC v. Bulgaria (App. No. 39272/98), Judgment, 4 December 2003, paras. 102–107, citing – and implicitly criticising – Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 174, 180, 185, Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 439, 440, 457–460 and Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 128–129, 132.

2 The legitimacy and legality of the tribunals

In a celebrated passage from its ruling in the Yerodia case, dealing with immunity to criminal prosecution, the International Court of Justice (ICJ) stated that while a head of State could not be prosecuted by the national courts of another State, he or she was subject to prosecution by ‘certain international criminal courts’. The Court said that an incumbent or former Minister for Foreign AVairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that ‘[i]mmunities or special procedural rules which may attach to the oYcial capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person’.1

The Court distinguished this case from that of prosecution before what it described, in the same paragraph, as ‘foreign jurisdiction’ or, alternatively, a ‘court of one State’. The ICJ did not elaborate on the criteria for determining how to distinguish between ‘international courts’ and ‘national courts’. But there can be no doubt that it recognised the distinction between the two types of bodies and that it also, at least indirectly, pronounced itself on the legality of the institutions. The defendants at Nuremberg and Tokyo did not undertake judicial challenges to the legality and legitimacy of their prosecutions. Nevertheless, some of them attempted to attack the entire process, denying that it had any legitimacy. And since the post-Second World War trials, there has been much negative comment on the process in the academic literature, with unfortunate

1

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, para. 61.

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pejorative references to ‘victor’s justice’2 and even racism3 that appear to have nourished the eVorts of holocaust deniers and other Nazi sympathisers.4 Although the verdict about the more recent generation of international criminal tribunals is more positive, serious arguments have been raised that need to be considered. By and large, they invoke bodies of law that were nonexistent or terribly underdeveloped in the 1940s. Issues are raised about the interpretation of the Charter of the United Nations, and the application of international human rights standards to the new institutions.

Creation by resolution of the United Nations Security Council Two of the three tribunals being studied, the ICTY and the ICTR, were established by Security Council decision taken pursuant to Chapter VII of the Charter of the United Nations. The third, the SCSL, was established as a consequence of a Security Council initiative, although its existence is the result of a negotiated treaty between the United Nations and the Government of Sierra Leone. The creation of the ICTY by the Security Council in May 1993 represented an important innovation. Resolution 808, adopted by the Security Council on 22 February 1993, charged the Secretary-General with preparing proposals concerning the establishment of the Tribunal, but the Council did not pronounce itself on how this was to be done. The Report of the SecretaryGeneral, dated 3 May 1993, noted that ‘[t]he decision does not relate to the establishment of an international criminal jurisdiction in general nor to the creation of an international criminal court of a permanent nature, issues which are and remain under active consideration by the International Law Commission and the General Assembly’.5 After observing that the Security Council had called for the establishment of an international tribunal but

2

3

4 5

E.g., Tadic´ (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 21. Also: Richard H. Minear, Victor’s Justice: The Tokyo War Crimes Trial, Princeton, NJ: Princeton University Press, 1971; Payam Akhavan, ‘Enforcement of the Genocide Convention: A Challenge to Civilization’, (1995) 8 Harvard Human Rights Journal 229; Gerry J. Simpson, ‘War Crimes: A Critical Introduction’, in Timothy L. H. McCormack and Gerry J. Simpson, eds., The Law of War Crimes: National and International Approaches, The Hague: Kluwer Law International, 1997, pp. 1–30, at p. 4. Ann Marie Prevost, ‘Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita’, (1992) 14 Human Rights Quarterly 303; Elizabeth S. Kopelman, ‘Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial’, (1991) 23 New York University Journal of International Law and Policy 373. E.g., David Irving, Nuremberg, The Last Battle, London: Focal Point Publications, 1996. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 12.

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without indicating how this would be done or on what legal basis,6 the Secretary-General said that ‘in the normal course of events’ this would be accomplished by treaty. However, negotiation of a treaty would take considerable time and, ‘[e]ven then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly eVective’.7 This was an understatement: it was out of the question at the time that the warring States would accept a tribunal, as their subsequent lack of cooperation with it only confirms. The Secretary-General also rejected the suggestion that this be an initiative of the General Assembly, as this ‘would not be reconcilable with the urgency expressed by the Security Council in resolution 808’.8 Concluding that the best approach was a resolution of the Security Council under Chapter VII of the Charter, the Secretary-General wrote: In this particular case, the Security Council would be establishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the Charter, but one of a judicial nature. This organ would, of course, have to perform its functions independently of political considerations; it would not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions. As an enforcement measure under Chapter VII, however, the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto. It should be pointed out that, in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to ‘legislate’ that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law.9

The establishment of the ICTY was almost immediately contested by counsel for its first defendant, Dusˇko Tadic´, in a motion filed on 23 June 1995.10 Tadic´’s legal team, led by experienced Dutch and British criminal lawyers, argued that the creation of the ICTY was illegal, in that the Charter of the United Nations did not grant the Security Council the authority to create such a body. They said that an international tribunal could only be 6 8 10

7 See UN Doc. A/RES/47/121, para. 10. Ibid., para. 20. 9 Ibid., para. 21. Ibid., paras. 28–29. There was also some academic support. See: Julio Barboza, ‘International Criminal Law’, (1999) 278 Recueil des Cours 9, at p. 128; Faı¨za Patel King, ‘Sensible Scrutiny: The Yugoslav Tribunal’s Development of Limits on the Security Council’s Powers under Chapter VII of the Charter’, (1996) 10 Emory International Law Review 509, at pp. 509– 511; JeVrey W. Davis, ‘Two Wrongs Do Make a Right: The International Criminal Tribunal for the Former Yugoslavia was Established Illegally - But it was the Right Thing to do . . . So Who Cares?’, (2002) 28 North Carolina Journal of International Law and Commercial Regulation 395.

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created by treaty, or in the alternative, by amendment of the Charter of the United Nations. The preliminary motion was dismissed by the Trial Chamber on 10 August 1995,11 a ruling that was upheld by the Appeals Chamber in the celebrated Tadic´ jurisdictional decision of 2 October 1995.12 The principles set out by the Appeals Chamber have been upheld in subsequent rulings on challenges to the establishment of both the ICTY13 and the ICTR.14 Before the challenges could proceed, there was the preliminary issue of the authority of the Tribunal to examine the legality of its establishment. A few years earlier, the International Court of Justice had shown great reticence when asked to sit in judicial review of a Security Council decision. Several members of the Court thought it improper for the Court to review acts of the Council, given that the Charter of the United Nations had set no hierarchy among its principal organs.15 The Nuremberg Charter had expressly prohibited defendants from contesting the legitimacy of the court itself.16 The ICTY Appeals Chamber might well have ducked the entire issue of the legality of the Tribunal’s creation by reasoning in this way, as some commentators urged.17 But the Appeals Chamber found that it had jurisdiction to entertain the 11 12

13 14

15

16

17

Tadic´ (IT-94-1-T), Decision on the Defence Motion on Jurisdiction, 10 August 1995. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. See: Aaron K. Baltes, ‘Prosecutor v. Tadic´: Legitimizing the Establishment of the International Criminal Tribunal for the former Yugoslavia’, (1997) 49 Maine Law Review 577; Christopher Greenwood, ‘International Humanitarian Law and the Tadic´ Case’, (1996) 7 European Journal of International Law 265; Jean-Franc¸ois Marchi, ‘L’aVaire Dusˇko Tadic´ devant le Tribunal. Remarques sur le premier controˆle de la le´galite´ d’une re´solution du Conseil de se´curite´’, (1996) 1 L’observateur des Nations Unies 75; L. G. Maresca, ‘The Prosecutor v. Tadic´ – The Appellate Decision of the International Criminal Tribunal for Yugoslavia and Internal Violations of Humanitarian Law as International Crimes’, (1996) 9 Leiden Journal of International Law 219; Marco Sasso`li, ‘La premie`re de´cision de la Chambre d’appel du Tribunal Pe´nal International pour l’ex-Yougoslavie: Tadic´ (Compe´tence)’, (1996) 100 Revue ge´ne´rale de droit international public 101; Colin Warbrick and Peter Rowe, ‘The International Criminal Tribunal: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic´ Case’, (1996) 45 International and Comparative Law Quarterly 691; GeoVrey R. Watson, ‘The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic´ ’, (1996) 36 Virginia Journal of International Law 687. E.g., Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001. Kanyabashi (ICTR-96-15-T), Decision on the Defence Motion on Jurisdiction, 18 June 1997, para. 27. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. Untied States of America), Provisional Measures Order of April 14, [1992] ICJ Reports 114, at pp. 140, 156, 192–193, 196, 174–175. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, (1951) 82 UNTS 280, art. 3. James C. O’Brien, ‘The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’, (1993) 87 American Journal of International Law 639, at p. 643.

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challenge, noting that this was not a judicial review in any general sense, but rather a validation of the legality of its own establishment. ‘This power, known as the principle of ‘‘Kompetenz-Kompetenz’’ in German or ‘‘la compe´tence de la compe´tence’’ in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its ‘‘jurisdiction to determine its own jurisdiction’’’, the Appeals Chamber said.18 It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done. Acknowledging a high degree of deference for Security Council determinations as to the existence of a threat to the peace – a precondition for action under Chapter VII – the Appeals Chamber rejected the motion. This preliminary conclusion by the Appeals Chamber cannot, however, be taken as authority for the existence of any broader jurisdiction within the Tribunal to review Security Council decisions.19 Inspired by the ICTY Appeals Chamber, the SCSL Appeals Chamber has also declared that it is empowered to pronounce on the validity and legality of its own creation.20 Within the Charter of the United Nations, articles 29 and 42 are central to the Security Council’s authority. According to article 29, the Council may ‘establish such subsidiary organs as it deems necessary for the performance of its functions’. The General Assembly has created a court as a subsidiary body in the past, and the International Court of Justice endorsed this.21 As the Appeals Chamber recalled, the Security Council’s powers and authority are conditioned by the terms of the Charter.22 As a body, the Council does not have unlimited powers, and any justification for its actions must be rooted in provisions of the Charter. The basis for the establishment of the tribunals is Chapter VII of the Charter, which is predicated upon a determination by the Council of ‘the existence of any threat to the peace, breach of the peace, or act of aggression’.23 The ICTY Appeals Chamber noted that this posed no real diYculty, because it was evident that the conflict in the former Yugoslavia fit clearly within these terms. Even were the conflict solely internal in nature, past practice of the Security Council confirmed that this would still fall inside the scope of Chapter VII of the 18

19 20

21

22

23

Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 18. Ibid., para. 20. Kallon et al. (SCSL-04-15-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 34. EVect of Awards of Compensation Made by the United Nations Administrative Tribunal, [1954] ICJ Reports 47, at p. 53. Cited in Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 38. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 28. Charter of the United Nations, art. 39.

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Charter.24 The Security Council had in fact made this quite straightforward with an implicit reference to Chapter VII in Resolution 827, which established the ICTY, although the Resolution did not point to the specific provision of Chapter VII on which the Council was relying. Resolution 827 said that ‘in the particular circumstances of the former Yugoslavia’, the establishment of the International Tribunal ‘would contribute to the restoration and maintenance of peace’. The Appeals Chamber noted that article 41, which speaks broadly of ‘measures not involving the use of force’, seemed to do the trick.25 Moreover, it added, ‘[a]rticle 39 leaves the choice of means and their evaluation to the Security Council, which enjoys wide discretionary powers in this regard; and it could not have been otherwise, as such a choice involves political evaluation of highly complex and dynamic situations’.26 An ICTR Trial Chamber, in Kanyabashi, reached essentially the same conclusions on these issues. The Trial Chamber noted the ‘wide margin of discretion’ of the Security Council in deciding when and where there exists a threat to international peace and security. ‘By their very nature, however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber’, it said.27 There was a distinction between Rwanda and the former Yugoslavia, because the former was unquestionably an internal armed conflict. It was argued that issues of international peace and security engaging the Security Council simply did not arise in such situations. The Trial Chamber said that while it deferred to the Security Council’s assessment on this, it took judicial notice of the fact that the conflict in Rwanda created a massive wave of refugees, many of whom were armed, into the neighbouring countries which by itself entailed a considerable risk of serious destabilisation of the local areas in the host countries where the refugees had settled. The demographic composition of the population in certain neighbouring regions outside the territory of Rwanda, furthermore, showed features which suggest that the conflict in Rwanda might eventually spread to some or all of these neighbouring regions.28

The ruling was never appealed.29 24

25 26 27 28 29

Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 30. Ibid., paras. 35–36. Ibid., para. 39. Kanyabashi (ICTR-96-15-T), Decision on Jurisdiction, 18 June 1997, para. 20. Ibid., para. 21. Virginia Morris, ‘Prosecutor v. Kanyabashi ’, (1998) 92 American Journal of International Law 66, at p. 70. Also: Frederik HarhoV, ‘The Rwanda Tribunal: A Presentation of Some Legal Aspects’, (1997) 321 International Review of the Red Cross 665.

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Despite recognition of the authority of the Security Council to establish international tribunals, the judgments have nevertheless drawn attention to the importance of consent by the States concerned. In Tadic´, for example, the ICTY Appeals Chamber noted that the Republic of Bosnia and Herzegovina had not only not contested the jurisdiction of the Tribunal but had actually approved of it and oVered its cooperation.30 Similarly, the ICTR Trial Chamber in Kanyabashi remarked upon the fact that ‘the establishment of the ICTR was called for by the Government of Rwanda itself, which maintained that an international criminal tribunal could assist in prosecuting those responsible for acts of genocide and crimes against humanity and in this way promote the restoration of peace and reconciliation in Rwanda’.31 Thus, according to the ICTR, the Security Council’s establishment of the Tribunal by a resolution under Chapter VII ‘with the participation of the Government of Rwanda’ did not violate the sovereignty of Rwanda.32 The issue has returned from time to time, but the jurisprudence is unwavering.33 Further confirmation of this authority within the Security Council can now be found in the Rome Statute of the International Criminal Court. Obviously it does not purport to authorise the creation of a new tribunal, but it does recognise the power of the Security Council to refer cases to the Court and, moreover, to block prosecutions under certain circumstances, all pursuant to its powers under Chapter VII. The Council’s authority was never questioned during the drafting of the Rome Statute, in which most States participated, something that confirms the interpretation by which criminal prosecution belongs within the scope of Chapter VII. It seems now to be beyond any doubt that the Security Council is empowered to establish an international criminal tribunal. The obstacles to the creation of future tribunals by the Security Council (and, indeed, referral of cases to the International Criminal Court) are political, not judicial, in nature.

Creation of a treaty-based court The Special Court for Sierra Leone was established not by Security Council resolution, which by the late 1990s had become politically unlikely, but by agreement between the United Nations and the Government of Sierra Leone. The operative document is, in eVect, an international treaty between a State and an intergovernmental organisation. Treaties between international organisations 30

31 32 33

Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 56. Kanyabashi (ICTR-96-15-T), Decision on Jurisdiction, 18 June 1997, para. 14. Ibid., para. 15. E.g., Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment Due to the Illegal Foundation of the Tribunal, 1 March 1999.

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and States are a species of public international law instrument, governed by the Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations. The Secretary-General explained, in his report on the draft Statute of the SCSL, that it is ‘a treaty-based sui generis court of mixed jurisdiction and composition’.34 He described it as ‘a treaty-based organ not anchored in any existing system’.35 According to the Appeals Chamber of the SCSL, ‘[t]he Special Court is established by treaty and has the characteristics associated with classical international organisations (including legal personality; the capacity to enter into agreements with other international persons governed by international law; privileges and immunities; and an autonomous will distinct from that of its members)’.36 Theoretically, the ICTY and the ICTR might also have been created in this way. However, this fact does not bolster the argument that the Security Council was acting outside its powers in creating the two institutions. There are other examples of the establishment of international criminal tribunals by treaty, beginning with Nuremberg in 1945. On 8 August 1945, the four victorious ‘great’ powers, France, the Soviet Union, the United Kingdom and the United States, agreed by treaty to establish a tribunal for the prosecution of the major Nazi war criminals. Several other States subsequently ratified the treaty. When this was challenged, the Nuremberg judges said that the four powers ‘have done together what any one of them might have done singly’. But the Nuremberg tribunal hinged the justification for its existence on the status of the four powers as occupiers of Germany: ‘The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognised by the civilised world.’37 In a sense, the Special Court for Sierra Leone relies on the same logic. Sierra Leone exercises sovereignty over its own territory, and can create tribunals for the administration of justice in the same way the powers that occupied Germany could do in 1945. The Nuremberg judgment provides authority for it to delegate this power to an international tribunal, in whose creation it participates. The same could also be said of the Statute of the International Criminal Court, by which approximately 100 States have in eVect agreed to delegate their own criminal law jurisdiction, subject to certain conditions, to

34

35 36 37

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 9. Ibid. Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 41. France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, at p. 216.

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an international tribunal. But the SCSL Appeals Chamber has resisted the idea that the Court constitutes a delegation of the authority of the Government of Sierra Leone, as this risks diminishing its claim to genuine international stature. According to the Appeals Chamber, ‘the establishment of the Special Court did not involve a transfer of jurisdiction of sovereignty by Sierra Leone’. It said that ‘the judicial power exercised by the Special Court is not that of Sierra Leone, but that of the Special Court itself reflecting the interests of the international community’.38 While conceding that its creation could not be equated with that of the ICTY and ICTR, pursuant to a Security Council decision, the Special Court has nevertheless claimed a somewhat more indirect form of Security Council lineage: Although the Special Court was established by treaty, unlike the ICTY and ICTR which were each established by resolution of the Security Council in the exercise of powers by virtue of Chapter VII of the UN Charter, it was certain that the power of the Security Council to enter into an agreement for the establishment of the court was derived from the Charter of the United Nations both in regard to the general purposes of the United Nations as expressed in Article 1 of the Charter and the specific powers of the Security Council in articles 39 and 41. These powers are wide enough to empower the Security Council to initiate, as it did by Resolution 1315, the establishment of the Special Court by Agreement with Sierra Leone.39

The Appeals Chamber noted the ‘high level of involvement of the Security Council in the establishment of the court including, but not limited to, approving the Statute of the Special Court and initiating and facilitating arrangements for the funding of the Court’.40 The Chamber has also confirmed that the Security Council is authorised by the Charter of the United Nations to delegate authority for creating a tribunal or court to the SecretaryGeneral,41 that the Secretary-General may conclude such an agreement on its behalf,42 and that the Security Council itself exercised its authority over an organ created at its behest through its representative on the Management

38

39 40

41

42

Gbao (SCSL-04-15-AR72(E)), Decision on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, 25 May 2004, para. 6. Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 21 May 2004, para. 37. Ibid., para. 36. Also: Brima (SCSL-03-06-PT), Ruling on the Application for the Issue of a Writ of habeas corpus Filed by the Applicant, 22 July 2003. Fofana (SCSL-04-14-AR72(E)), Decision on Preliminary Motion on Lack of Jurisdiction materiae : Illegal Delegation of Powers by the United Nations, 25 May 2004, para. 16. Ibid., para. 17.

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Committee of the Court, created pursuant to article 8 of the Agreement establishing the Court.43 The Security Council was involved in the drafting of the SCSL Statute to an important extent. There was a series of exchanges following the initial proposal of the Secretary-General, in which the Security Council exercised its preferences for certain options in the Statute. On every point, the Security Council prevailed.44 When a final version was agreed to by the SecretaryGeneral and the Security Council, the latter adopted a resolution in which it ‘[e]ncourag[ed] the Government of Sierra Leone, together with the SecretaryGeneral, the United Nations High Commissioner for Human Rights and other relevant international actors, to expedite the establishment of the Truth and Reconciliation Commission and the Special Court envisaged by resolution 1315 (2000)’.45 The degree to which the SCSL may aVect the rights of third States, that is, those not party to the agreement, has not gone unchallenged. Some academic critics of the Rome Statute of the International Criminal Court have argued that it cannot exercise jurisdiction over the nationals of third States, despite the fact that there is no question about the fact that the courts of the States parties themselves can exercise jurisdiction over nationals of other States for crimes committed on their territory. In other words, it is suggested, States cannot delegate all of their criminal law powers to an international criminal tribunal.46 This view finds little support in academic literature, and is certainly less interesting than the question of whether an international criminal tribunal created by treaty can exercise a jurisdiction that cannot be exercised by the national courts of the States that have created it. Specifically, the problem 43

44

45 46

Ibid., para. 24. Note that the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, 16 January 2002, nowhere refers to Security Council representation. It states: ‘The management committee shall consist of important contributors to the Special Court. The Government of Sierra Leone and the Secretary-General will also participate in the management committee.’ The SCSL does not report to the Security Council, and the Security Council has taken no action with respect to the Court since its creation except to make positive statements. See: ‘Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2000/1234; ‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/40; ‘Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/95; ‘Letter dated 12 July 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/693; ‘Letter dated 23 July 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2000/722. UN Doc. S/RES/1346 (2001), para. 14. Madeline H. Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’, (2001) 64 Law and Contemporary Problems 13.

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arises with respect to the immunity of the heads of States that are not party to the treaty. In the Yerodia case, the International Court of Justice determined that ‘certain international criminal tribunals’ could prosecute a sitting or former head of State, citing as examples the ICTY, the ICTR and the ICC.47 The authority to prosecute such persons seems well within the purview of the Security Council, and therefore the jurisdiction of the ICTY and ICTR, something that is confirmed by specific provisions of the statutes of the two tribunals.48 But would this also enable a treaty-based court to prosecute the head of a State that is not party to the treaty? This is what the International Court of Justice seems to have said, although the operative paragraph also notes that such prosecutions may be taken by international courts like the ICC ‘where they have jurisdiction’. The question is as yet unresolved, and there are strong arguments on both sides. A somewhat narrower but related issue arose in one of the initial challenges before the Special Court for Sierra Leone. Defence counsel contested the establishment of the Court in an attempt to limit its jurisdiction. In eVect, it was suggested that because the Court results from an agreement between Sierra Leone and the United Nations, the Court can only exercise a jurisdiction that already resides within the authority of the Government of Sierra Leone. In the concrete case of the prosecution of Charles Taylor, who was indicted while still the sitting head of State of neighbouring Sierra Leone, this would block the Court from exercising jurisdiction. But in its ruling on the challenge, the Appeals Chamber of the SCSL determined that it was ‘established to fulfil an international mandate and is part of the machinery of international justice’.49 Defence lawyers also argued that the establishment of the Court violated the Constitution of Sierra Leone, and that the only way to create the institution was pursuant to a national referendum that would authorise a constitutional amendment. Section 120(1) of the Constitution states: ‘The judicial powers of Sierra Leone shall be vested in the judiciary of which the Chief Justice shall be the head.’ But as the Appeals Chamber of the Special Court observed, it is not part of the judiciary of Sierra Leone.50 Moreover, the

47

48 49 50

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 14 February 2002, para. 61. ICTY Statute, art. 7(2); ICTR Statute, art. 6(2). Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 30. Kallon et al. (SCSL-04-14, 15 and 16-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 49. Also, Special Court Agreement, 2002, Ratification Act 2002, Supplement to the Sierra Leone Gazette vol. CXXX, No. II, dated 7 March 2002, s. 11(2).

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Appeals Chamber explained that article 11(d) of the Special Court Agreement gave the Court the capacity to enter into agreements with States, something the national courts of Sierra Leone cannot do. The treaty-based creation of the Special Court for Sierra Leone is said to have a dramatic eVect on its powers. Because the ICTY and ICTR are established by Security Council resolution pursuant to Chapter VII of the Charter of the United Nations, these two tribunals have been held to have the authority to issue binding orders directed against States.51 Moreover, the primacy of the two tribunals with respect to national courts means that they can order the deferral of pending proceedings in national courts of any State so as to permit the international tribunal to proceed with a case.52 The treatybased Special Court for Sierra Leone does not have the power to issue binding orders on States, and its primacy over national jurisdictions applies only to the courts of Sierra Leone.53 Even its powers within Sierra Leone must be exercised pursuant to the Special Court Act. Without that legislation, the Court would seem to be impotent. It is for this reason that defence lawyers at the Special Court have devoted so much attention to issues of the national legislation and the Constitution of Sierra Leone. The diVerences between the two types of tribunals based on the nature of their creation may be more theoretical than real. In the case of the two tribunals established by the Security Council, given that they have no legal means of enforcement, in practice they rely upon Security Council action in order to execute their orders. On several occasions, the tribunals have appealed to the Security Council to take action. To date, the Council has never responded to any specific request from the tribunals, although it has periodically issued resolutions of a general nature calling upon States to 51

52 53

Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997. ICTY Statute, art. 9(2); ICTR Statute, art. 8(2). Kallon et al. (SCSL-04-14, 15 and 16-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 69. See: ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 10. ‘The Special Court has concurrent jurisdiction with and primacy over Sierra Leonean courts. Consequently, it has the power to request at any stage of the proceedings that any national Sierra Leonean court defer to its jurisdiction (article 8, para. 2 of the Statute). The primacy of the Special Court, however, is limited to the national courts of Sierra Leone and does not extend to the courts of third States. Lacking the power to assert its primacy over national courts in third States in connection with the crimes committed in Sierra Leone, it also lacks the power to request the surrender of an accused from any third State and to induce the compliance of its authorities with any such request. In examining measures to enhance the deterrent powers of the Special Court, the Security Council may wish to consider endowing it with Chapter VII powers for the specific purpose of requesting the surrender of an accused from outside the jurisdiction of the Court.’

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comply with orders from the tribunals. On several occasions States, and their national courts, have complied with orders from the tribunals in the exercise of their primacy or their so-called Chapter VII powers. But where a State defies the tribunals, they are powerless, absent subsequent Security Council action. As for the Special Court, the counterweight to its alleged lack of Chapter VII power is the prestige that comes from its association with the United Nations, the fact that it was established pursuant to a Security Council resolution, and the active participation of major international and regional powers, including the United States, the United Kingdom and Nigeria, in its management committee. Like the two ad hoc tribunals, there is nothing preventing the Special Court from appealing to the Security Council to assist it, nor does anything stand in the way of the Council complying with such a request, aside from the omnipresent political considerations. For this reason, the concrete position of the Special Court does not necessarily seem to be very diVerent from that of the ICTY and ICTR. The Special Court has urged the Security Council to grant it Chapter VII powers, to no avail. The alleged limits of the powers of the SCSL were highlighted in June 2003 when it attempted to arrest Charles Taylor, who was then the president of Liberia. When Taylor travelled to Ghana to attend a peace conference, the SCSL Prosecutor called upon the Government of Ghana to arrest him, in accordance with a secret indictment issued three months earlier. Ghana did not abide by the request, and allowed Taylor to return to Liberia. In August 2003, Taylor relinquished his power, in exchange for a grant of asylum from the government of Nigeria. There have been repeated calls from the SCSL for Nigeria to transfer Taylor to Freetown so that he can stand trial. The failures of the SCSL to obtain custody of Taylor do not serve as a convincing demonstration of the institutional weaknesses that flow from a lack of Chapter VII powers. Both Ghana and Nigeria can invoke serious legal arguments for refusing to comply with the request of the SCSL, and these would be valid even if the Court were endowed with Chapter VII powers. In the case of Ghana, its refusal to arrest Taylor in June 2003 is surely supported by international legal principles of immunity. It is one thing to declare, as did the Special Court in a preliminary ruling, that Taylor cannot invoke immunity in the proceedings, and quite another to challenge Taylor’s immunity from arrest and apprehension as a sitting head of State, especially one attending an international peace conference. It seems improbable that the Security Council would give its imprimatur to the proposal by an international prosecutor that a sitting head of State be arrested while attending such a meeting. As for Nigeria, it can invoke the right of sovereign States to grant asylum. Here, too, there is no precedent for the Security Council intervening in such decisions. Therefore, the alleged weaknesses of the SCSL seem to dwell in the exorbitant nature of its requests, and the diYculties they present in terms of principles of

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public international law, rather than a stubborn refusal of States in the subregion to assist the operations of the Court. Were the ICTY or ICTR to make orders calling for the arrest of a sitting head of State attending a peace conference in a foreign capital, it is unlikely that the Security Council itself would intervene to assist in enforcement of the measure. In the litigation surrounding the establishment of the ICTY and ICTR, the defence counsel challenged the authority of the Security Council to establish the Tribunal, noting the absence of any express authorisation in the Charter of the United Nations. The same, of course, might be said with respect to the authority of the United Nations to create an international judicial institution by treaty. Interestingly, the Appeals Chamber reasoned that if articles 39 and 41 of the Charter of the United Nations were broad enough to allow the establishment of the ICTY and ICTR, they are also ‘wide enough to empower the Security Council to initiate, as it did by Resolution 1315, the establishment of the Special Court by Agreement with Sierra Leone’.54 Resolution 1315 noted that the situation in Sierra Leone continued to constitute a threat to international peace and security, although it stopped short of using the United Nations jargon that indicates the Council was acting under Chapter VII. For the SCSL Appeals Chamber, this was not a major inconvenience, given that ‘where the Security Council decides to establish a court as a measure to maintain or restore international peace and security it may or may not, at the same time, contemporaneously, call upon the members of the United Nations to lend their cooperation to such a court as a matter of obligation’.55 Here, the SCSL seemed to be saying that it is indeed an emanation of the Security Council. Created in response to a request addressed to the Security Council, and as a result of a process in which the Security Council was actively engaged, it cannot be gainsaid that the Security Council is without significant participation. The Security Council can also, presumably, by resolution, intervene to influence the work of the SCSL, just as it has intervened to steer the work of the ICTY and ICTR. The Appeals Chamber also noted that the Agreement between the United Nations and Sierra Leone constitutes ‘an agreement between all members of the United Nations and Sierra Leone’, making it ‘an expression of the will of the international community’.56

Retroactivity At the time of their establishment, all three ad hoc tribunals were given jurisdiction over crimes committed in the past, although they were also

54 55

Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 37. 56 Ibid., para. 38. Ibid.

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endowed with prospective jurisdiction to various extents.57 The Universal Declaration of Human Rights states: ‘No one shall be held guilty of any penal oVence on account of any act or omission which did not constitute a penal oVence, under national or international law, at the time when it was committed.’58 Sometimes described as the ‘principle of legality’, it is captured in the Latin maxim nullum crimen sine lege. But international human rights law makes an exception to its general prohibition on retroactive criminal prosecution, namely, ‘the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations’.59 This provision was added to the International Covenant on Civil and Political Rights in acknowledgement of the principles of the Nuremberg judgment.60 Addressing this issue, in his report on the establishment of the ICTY, the SecretaryGeneral insisted that the Tribunal would only be able to prosecute oVences that were unquestionably recognised at customary international law.61 According to the majority in Tadic´, ‘the only reason behind the stated purpose of the drafters that the International Tribunal should apply customary international law was to avoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did not adhere to a specific treaty’.62 The Security Council was apparently not as squeamish about nullum crimen when it adopted the ICTR Statute, eighteen months later. According to the Secretary-General’s report, issued subsequent to the adoption of the ICTR Statute: [T]he Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlying the Statute of the Yugoslav Tribunal, and included within the subject-matter jurisdiction of the Rwanda Tribunal international instruments regardless of whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime. Article 4 of the Statute, accordingly, includes violations of Protocol Additional II, which, as a whole, has not yet been universally recognized as part of customary international law, for the first time criminalizes common article 3 of the four Geneva Conventions.63

57 58 59 60

61

62

63

This is discussed below at pp. 132–138. GA Res. 217 A (III), UN Doc. A/810, art. 11(2). International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 15(2). Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd rev. edn, Kehl: NP Engel, 2005, p. 368. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 34. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 143. UN Doc. S/1995/134, paras. 11–12.

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Slightly more than a decade later, a United Nations Commission of Inquiry referred to the Secretary-General’s remarks at the time the ICTR Statute was being adopted, pointing out that no member of the Security Council objected to the ‘expansive approach’ that he had taken. This ‘demonstrat[ed] consensus on the need to make headway in the legal regulation of internal conflict and to criminalize deviations from the applicable law’. The Commission suggested that the recognition by the Security Council that violations of common article 3 and Additional Protocol II were punishable was in itself suYcient to push these two categories into the realm of customary international law.64 Concerns about retroactive punishment have aZicted international prosecution since the victorious Allies attempted to establish a framework to prosecute German war criminals at the Paris Peace Conference. The American delegates, Robert Lansing and James Brown Scott, dissented with the proposal that in addition to ‘the laws and customs of war’, which they called ‘a standard certain’, the indictments might also charge breaches of ‘the laws and principles of humanity’.65 The great historic challenge to war crimes prosecution was by the Nazi defendants, who claimed that the Nuremberg tribunal was applying retroactive criminal law: It was urged on behalf of the defendants that a fundamental principle of all law – international and domestic – is that there can be no punishment of crime without a pre-existing law. ‘Nullum crimen sine lege, nulla poena sine lege.’ It was submitted that ex post facto punishment is abhorrent to the law of all civilised nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish oVenders.’66

It seems implicit in the Nuremberg judgment that the Nazi defendants, and perhaps the judges too, believed it proper that the legitimacy and legality of the tribunal’s statute be contested before the court. The retroactivity argument was rejected, but not because the court was prepared to assert that there was no doubt that crimes against peace and crimes against humanity had been recognised at law prior to the Second World War. Rather,

64

65

66

‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004’, Geneva, 25 January 2005, para. 160. ‘Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities’, (1920) 14 American Journal of International Law 127, at pp. 134, 144. France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, at p. 217.

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[i]n the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.67

Although formally professing rigid adherence to the nullum crimen principle, in practice judges at the ad hoc tribunals have taken a relatively relaxed approach, much in the spirit of their predecessors at Nuremberg, and in keeping with the liberal application adopted by the European Court of Human Rights.68 Rather than insisting on a precise text applicable at the time the crime was committed, the human rights tribunals require that the law be foreseeable and that it be accessible. Judge Sidhwa answered the charge of retroactivity in his separate opinion in Tadic´: ‘[A]ll ‘‘would-be’’ accused were on notice, through Resolutions of the Security Council, to refrain from committing such crimes. If they chose to do so, they cannot complain of a statute that now pursues their heinous action.’69 According to the ICTY Appeals Chamber, [a]s to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom.70

Relying upon the statement of the Secretary-General to the eVect that the intent was to include crimes that were unquestionably part of customary international law, the ICTY judges have treated the nullum crimen maxim as a principle of interpretation. The Security Council is deemed to have intended to mandate the ICTY with the enforcement of existing law. It did not mean to enact new law, and the Statute should be construed accordingly. This is also

67

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Ibid. Similar views were expressed by Hans Kelsen: Hans Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’, (1947) 1 International Law Quarterly 153, at p. 165. See also the discussion of retroactivity in A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), para. 27. SW v. United Kingdom, Series A, No. 335-B, paras. 35–36; CR v. United Kingdom, Series A, No. 335-B, paras. 33–34; Streletz, Kessler & Krenz v. Germany, [2001] ECHR 230, 22 March 2001, para. 49. Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 72. Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction with respect to Command Responsibility, 16 July 2003, para. 34.

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the approach taken by common law judges in States where there is no written constitution, like the United Kingdom.71 In the case of the ICTY Statute, the four subject-matter provisions did not in and of themselves pose any great problem with retroactivity. They were all drawn from instruments that had been adopted in the 1940s, and that were well accepted as statements of customary international law, as a result of widespread ratification of the treaties from which they were drawn, authoritative resolutions of the United Nations General Assembly, and rulings of the International Court of Justice. The same could not be said of the subjectmatter provisions in the ICTR and SCSL statutes, which were more innovative. In the case of the ICTY, despite the relative sanctity of the texts themselves, from the point where the Appeals Chamber ruled that ‘violations of the laws or customs of war’ set out in article 3 was a broad provision (the introductory paragraph of article 3 states: ‘Such violations shall include, but not be limited to . . .’) covering all ‘serious violations of international humanitarian law’,72 it was confronted with arguments about retroactive prosecution. Similarly, problems have arisen with the references to ‘persecution’ and to ‘other inhumane acts’ in the definition of crimes against humanity. But even where the text itself cannot easily be challenged, defendants have argued that the tribunals should not rely upon interpretations that are inconsistent with customary international law.73 In Krstic´, an ICTY Trial Chamber took note of evolving interpretations of the definition of genocide, but declined to follow them because ‘despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group’.74 Similarly, in interpreting the scope of the term ‘rape’, which hitherto lacked any definition in international criminal law, the tribunals have endeavoured to respect the rule against retroactivity.75 Nevertheless, as the ICTY Appeals Chamber has held, the nullum crimen principle ‘does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime; nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a

71 72

73 74

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Gagnon and Vallie`res v. The Queen, [1971] CA Que´bec 454. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 90. E.g., Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 47. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 580; confirmed by Krstic´ (IT-98-33A), Judgment, 19 April 2004, para. 25. See also: Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 61. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 184.

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crime’.76 The case law of the European Court of Human Rights allows for the ‘gradual clarification’ of the rules of criminal liability through judicial interpretation.77 Defendants have been fairly consistently unsuccessful in their challenges on the basis of the nullum crimen maxim. The ICTY Appeals Chamber dismissed an argument that grave breaches of the Geneva Conventions, set out in article 2 of the Statute, did not reflect rules of customary law, noting the near universal participation of States in the treaty regime.78 The ICTY has also held that reference to common article 3 of the four Geneva Conventions of 1949 within the context of the oVence of violations of the laws or customs of war is not retroactive punishment, although common article 3 is not contemplated by the criminal justice provisions of the Conventions and is not referred to in the ICTY Statute.79 The ICTR has regularly confirmed that serious violations of common article 3 of the four Geneva Conventions of 1949, and of Additional Protocol II, which are codified in article 4 of the ICTR Statute (and in article 3 of the SCSL Statute), were applicable in Rwanda in 1994 as a matter of customary law.80 The SCSL Appeals Chamber has held, with one dissenting voice, that conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities was a crime at customary international law as early as 30 November 1996, when the temporal jurisdiction of the Court begins.81 The nullum crimen argument has been raised not only with respect to the definitions of the crimes themselves, but also in the context of forms of participation, such as aiding and abetting, and superior responsibility.82 When the ICTY Appeals Chamber interpreted article 7(1) to include ‘common purpose’ forms of complicity, usually labelled ‘joint criminal enterprise’, which were not explicitly included in the Statute, it took pains to explain that 76 77

78 79 80

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Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 127. Hadzˇihasanovic´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002, para. 58, citing: SW v. United Kingdom, Series A, No. 335-B, paras. 35–36. There is also a companion case: CR v. United Kingdom, Series A, No. 335-B, paras. 33–34. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 112. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 298, 301, 306. See e.g., Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 353, and prior ICTR cases cited therein. Similarly, for the SCSL, see: Brima et al. (SCSL-04-16PT), Written Reasons for the Trial Chamber’s Oral Decision on the Defence Motion on Abuse of Process Due to Infringement of Principles of nullum crimen sine lege and NonRetroactivity as to Several Counts, 31 March 2004, para. 33. Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004. E.g., Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss All Allegations of Planning and Preparation under Article 7(1) as Outside the Jurisdiction of the Tribunal or as Unenforceable, 1 March 1999.

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this did not violate the nullum crimen rule.83 It has been held that command or superior responsibility is a form of criminal liability even in non-international armed conflict, despite exclusion of the concept from Additional Protocol II.84 The Appeals Chamber acknowledged that ‘it is incorrect to assume that, under customary international law, all the rules applicable to an international armed conflict automatically apply to an internal armed conflict’,85 but confirmed the conclusions of the Trial Chamber. If use of nullum crimen as a presumption for purposes of interpreting the statutes seems logical and uncontroversial, it is not nearly so straightforward that the judges may in eVect strike down provisions of the statutes that they deem to be retroactive, acting in eVect as a kind of constitutional court. The statutes do not give them this power, at least expressly. When the ICTR was being established, the Secretary-General believed that some of the crimes in the Statute went beyond existing customary international law.86 Surely he would not have done this if he could have anticipated that the Tribunal would strike down such provisions. Yet judges have regularly entertained the suggestion when defence lawyers have charged that provisions violate the rule against retroactivity, and in a few cases they have, in eVect, declared provisions in their statutes to be inoperative. For example, an ICTY Trial Chamber stated that ‘the principle of legality is the underlying principle that should be relied on to assess the subject-matter jurisdiction of the International Tribunal, and that the International Tribunal only has jurisdiction over oVences that constituted crimes under customary international law at the time the alleged oVences were committed’.87 A few judgments have gone somewhat further with respect to the role of customary international law, suggesting that in fact it is ‘imported’ into the statutes.88 In the SCSL motion attacking the crime of enlisting child soldiers, Judge Robertson, dissenting, was prepared to ‘grant a declaration to the eVect that [the accused] must not be prosecuted for an oVence of enlistment . . . alleged to have been committed before the end of July 1998’.89 Judge Robertson did not explain the legal basis of his authority to make such a declaration, except to 83 84

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88 89

Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 194–220. Hadzˇihasanovic´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002. Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction with Respect to Command Responsibility, 16 July 2003, para. 12. ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134, para. 12. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 20. Also: Vasiljevic´ (IT98-32-T), Judgment, 29 November 2002, paras. 197–199. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 559. Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May 2004, para. 47.

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aYrm, with reference to a textbook of Professor Antonio Cassese, that ‘the principle of non-retroactivity of criminal rules is now solidly embodied in international law. It follows that courts may only apply substantive criminal rules that existed at the time of commission of the alleged crime.’90 While disagreeing with Judge Robertson on the merits of the issue, his colleagues on the SCSL Appeals Chamber implicitly agreed that they were empowered to, in eVect, disregard provisions of the Statute that they felt to be contrary to the nullum crimen maxim: ‘It is the duty of this Chamber to ensure that the principle of non-retroactivity is not breached. As essential elements of all legal systems, the fundamental principle nullum crimen sine lege and the ancient principle nulla poena sine lege need to be considered.’91 The ICTY Appeals Chamber, in Tadic´, expressed what is surely the better view, namely, that ‘it is open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law’.92 Indeed, the approach of the SCSL Appeals Chamber seems to be at odds with its statement in another case: ‘The Special Court cannot ignore whatever the Statute directs or permits or empowers it to do unless such provisions are void as being in conflict with a peremptory norm of general international law.’93

Objectives of the tribunals Several diVerent rationales have been invoked as justification for the establishment of the tribunals. These matters deserve consideration, and are certainly germane to the legal issues concerning the establishment of the institutions, not to mention their credibility. International law has relatively little to say about the authority of sovereign States to establish courts, and to define crimes over which they have jurisdiction. States are entitled to punish crimes to the extent that this does not encroach upon the sovereign authority of other States.94 Human rights norms address national justice systems principally with respect to procedural issues. Aside from imposing obligations to punish

90

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Ibid., para. 16, citing Antonio Cassese, International Criminal Law, Oxford: Oxford University Press, 2003, p. 153. Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, para. 25. Also: Kallon et al. (SCSL-0415-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, paras. 80–82. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 296. Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 43. SS Lotus (France v. Turkey), [1927] PCIJ Ser. A. (Judgments) No. 10 (Judgment No. 9) (1929).

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certain crimes,95 international human rights law concerns itself with the limits of substantive criminal justice only when issues of equality or privacy are involved.96 It is surely inadequate to say that the United Nations may establish criminal justice institutions because international law does not prohibit this. In other words, United Nations involvement in criminal justice must have some connection with the purposes and principles of the organisation, as set out in its Charter. The tribunals are said to have multiple objectives: to restore and maintain international peace and security; to convict and punish individuals who are criminally responsible; to recognise and acknowledge the suVering and loss of victims; to send a message that serious violations of international humanitarian law will not be tolerated by the international community; to deter future atrocities; to end impunity and promote respect for the rule of law globally; to establish the truth; to encourage reconciliation after periods of ethnic conflict; to give expression to retribution. This accounts for important distinctions between international criminal justice and national justice that, as a general rule, is addressed to individual oVenders in peacetime and is targeted at social stability in a more mundane sense. All three tribunals are linked with the restoration and maintainance of peace. The connection with this objective is of legal significance, as it justifies the intervention of the Security Council in particular and the United Nations in general. Nothing could be more central to the work of the United Nations, whose Charter begins with the pledge to save succeeding generations from the scourge of war. The restoration and maintenance of peace might be viewed as the central objective of the tribunals, although in reality this is not how most view the institutions. According to the first annual report of the ICTY, it would be wrong to assume that the Tribunal is based on the old maxim fiat justitia et pereat mundus (let justice be done, even if the world were to perish). The Tribunal is, rather, based on the maxim propounded by Hegel in 1821: fiat justitia ne pereat mundus (let justice be done lest the world should perish). Indeed, the judicial process aims at averting the exacerbation and aggravation of conflict and tension, thereby contributing, albeit gradually, to a lasting peace.97

Absent a determination that issues of international peace and security are involved, it is questionable whether the Security Council has jurisdiction to 95

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E.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, annex, art. 4(1); Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277, art. 5. Dudgeon v. United Kingdom, 23 September 1981, Series A, vol. 45, 4 EHRR 149, 67 ILR 395; Laskey, Jaggard and Brown v. United Kingdom (App. No. 109/1995/615/703–705), Judgment, 20 January 1997. First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 18.

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act with respect to criminal justice issues. Resolution 808, for example, which began the process of establishing the ICTY, expressed the conviction of the Security Council that the proposed Tribunal would promote international peace.98 It has been argued that one of the consequences of the proceedings before the tribunals has been to remove those most responsible for the conflict from the proverbial battlefield.99 This has probably been of only limited importance in practice. In the case of Rwanda and Sierra Leone, the conflicts were over for all practical purposes when the tribunals were established. As for the ICTY, the conflict in Bosnia and Herzegovina that it was intended to resolve raged on for two and a half years after its establishment. The war’s worst massacre, at Srebrenica, took place a few days after an ICTY Trial Chamber held a public hearing confirming its indictments against Bosnia Serb leaders Radovan Karadzˇic´ and Ratko Mladic´. And although the Tribunal was fully operational and quite eVective by 1999, it was manifestly incapable of preventing armed conflict when the Kosovo war erupted that year. Deterrence figures prominently among the objectives of the tribunals. An ICTY Trial Chamber has explained that the Security Council also intended to send the message to all persons that any violations of international humanitarian law – and particularly the practice of ‘ethnic cleansing’ – would not be tolerated and must stop. It was further hoped that by highlighting breaches of obligations under international humanitarian law, and in particular the Geneva Conventions, that the parties to the conflict would recommit themselves to observing and adhering to those obligations, thereby preventing the commission of further crimes.100

The relevant resolutions do not, however, refer to deterrence. It does not seem clear that the United Nations Security Council actually considered deterrence of future violations to be a particularly important objective in creating the ICTY. ‘Doing justice’ might also be viewed as the objective lying at the core of the work of the tribunals. The Security Council Resolution calling for the Secretary-General to prepare the ICTY Statute said the Council was ‘determined to put an end to such crimes and to take eVective measures to bring to justice the persons who are responsible for them’.101 The Resolution establishing the ICTR used the same phrase.102 In launching the process that would lead to 98

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UN Doc. S/RES/808 (1993). Similarly, see UN Doc. S/RES/955 (1994) and UN Doc. S/ RES/1315 (2000). Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 60. Ibid., para. 59. UN Doc. S/RES/808 (1993). See also: ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 10 UN Doc. S/RES/955 (1994).

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the establishment of the SCSL, the Security Council reaYrmed that the ‘international community will exert every eVort to bring those responsible to justice’.103 There are frequent statements along the same lines in the judgments of the tribunals, especially those concerning sentencing of convicted oVenders. One judgment begins a discussion of the purposes of the ICTY by stating that it ‘was to achieve justice through criminal proceedings’. Moreover, it continued, ‘the primary objective was to convict – and punish – those individually responsible for their crimes. The suVering and loss of the victims of such crimes would thereby be internationally recognised and acknowledged.’104 These statements are closely related to the rights of victims, something that has steadily moved towards the centre of the agenda of international criminal law as well as international human rights law. The ICTY Trial Chamber said that by punishing those responsible, ‘[t]he suVering and loss of the victims of such crimes would thereby be internationally recognised and acknowledged’.105 The idea that the tribunals exist to ‘do justice’ is often manifested in references to retribution as one of the goals of sentencing. It can also be derived from the retroactive jurisdiction that is a feature of all three tribunals. If the objective of the tribunals were to deter, little would be gained by punishing crimes committed prior to their establishment. Individual accountability is a feature of criminal justice. This is said to be of particular importance when conflict has an ethnic dimension. Thus, ‘by holding individuals responsible for the crimes committed, it was hoped that a particular ethnic or religious group (or even political organisation) would not be held responsible for such crimes by members of other ethnic or religious groups, and that the guilt of the few would not be shifted to the innocent’.106 But might it be argued that in focusing on a handful of leaders, the much larger numbers of individuals who participated in or condoned atrocities are not included within the reach of accountability mechanisms? The Rwandan experience of transitional justice has pointed to the complicity of broad sectors of the population, and it is now estimated that as many as 1 million Rwandans participated in genocidal acts.107 Largely because of the practical inability of international tribunals to deal with most of the perpetrators, parallel accountability mechanisms, such as truth commissions, are frequently associated with post-conflict justice.108

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UN Doc. S/RES/1315 (2000). Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 59. Ibid., para. 59. Ibid., para. 60 (emphasis in the original). William A. Schabas, ‘Genocide Trials and Gacaca Courts’, (2005) 3 Journal of International Criminal Justice 879. ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report of the Secretary-General’, UN Doc. S/2004/616, para. 46 See also: William A. Schabas

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Despite the claim that the tribunals address individual rather than collective guilt, there is no doubt that certain groups consider themselves to have been stigmatised. Richard Goldstone has explained how when he first met the Minister of Justice of the Federal Republic of Yugoslavia, the Minister recounted the historic suVerings of the Serbs, including their terrible fate during the Second World War at the hands of the Nazis and their local collaborators. He ended with a very emotional critique of the United Nations for setting up the ICTY. He said why for us, why not for Pol Pot in Cambodia? He said why for us, why not for Saddam Hussein in Iraq? And he said that in other countries, specifically in Africa, millions of people had been killed or forced into refugee status. He asked why the international community should experiment on the former Yugoslavia? Of course, what could I say to him, because he was correct? At that stage, the ICTY was a kind of act of discrimination. All I could say was that if the ICTY was the first and the last international criminal tribunal, he would have been absolutely justified in his criticism. But if the ICTY was to be the first of many such tribunals, there would be no basis on which Yugoslavia could complain merely for being the subject of the initial tribunal. Despite the establishment of the Rwanda Tribunal, it remains politically dubious that, given the veto power of the five permanent members of the Security Council, the decision to set up an international criminal tribunal was, and always will be, an uneven political decision. None of the permanent members would countenance the establishment of an international criminal tribunal to investigate the actions of their own people, nor would they sanction such a tribunal to investigate their political allies. Justice and judicial systems should not depend on these kinds of political decisions. If justice is to be respected it must be even-handed, it must be unbiased, and potential war criminals in countries around the world should know that they are subject to the same international justice.109

National reconciliation is frequently mentioned as an objective of international justice. There is no reference to the concept in the Security Council resolutions creating the ICTY. A year later, in establishing the ICTR, the Security Council said that ‘the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation’.110 The Security Council resolution calling for the establishment of the Special

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and Shane Darcy, eds., Truth Commissions and Courts: The Tension Between Criminal Justice and the Search for Truth, Dordrecht: Kluwer Academic Publishers, 2004. Richard J. Goldstone, ‘International Jurisdiction and Prosecutorial Crimes’, (1999) 47 Cleveland State Law Review 473 at p. 479. UN Doc. S/RES/955 (1994).

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Court for Sierra Leone made references to the importance of the national reconciliation process, including confirmation of the importance of ‘bringing justice and reconciliation to Sierra Leone and the region’.111 Reconciliation is closely related to the role of the tribunals in the clarification of the historical record, in other words, the truth-seeking role of justice. Speaking in the Security Council when the ICTY was being established, the Representative of the United States said: ‘Truth is the cornerstone of the rule of law, and it will point towards individuals, not peoples, as perpetrators of war crimes. And it is only the truth that can cleanse the ethnic and religious hatreds and begin the healing process.’112 Judge Wald has spoken of ‘truth in fact finding for history’s sake’.113 According to Judge Wald, Many historians as well as the relatives of victims maintain that only the adjudicated findings of an impartial international body of jurists following accepted rules of legal procedure will quell the doubts of future generations that the terrible things did in fact happen. To chronicle accurately for history some of the world’s darkest deeds is the special responsibility of the Tribunal. Many would say it explains and even justifies the extraordinary length of the Tribunal’s judgments and what sometimes appears to be the Tribunal’s near-obsession with minute factual detail.114

Others have noted the importance of this historical role for international justice in terms of responding to ‘denial’ or ‘revisionism’. According to Judge McDonald, ‘[t]he judgments provide an incontrovertible record of how the communities became so divided, how neighbours raped and killed neighbours, how friends forgot their friendship, and how intermarriages meant nothing when one ethnic group was pitted against another by incessant, virulent propaganda’.115 Contribution to the truth-seeking function of the tribunals has often been recognised in judgments, especially those involving guilty pleas. For example, ‘[i]n confessing his guilt and admitting all factual details contained in the Third Amended Indictment in open court on 4 September 2003 Dragan Nikolic´ has helped further a process of reconciliation. He has guided the international community closer to the truth in an area not yet subject of any judgement rendered by this Tribunal, truth being one prerequisite for

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UN Doc. S/RES/1315 (2000), preambular paras. 4, 7 and 12. UN Doc. S/PV.3217 (25 May 1993). Patricia M. Wald, ‘Judging War Crimes’, (2000) 1 Chicago Journal of International Law 189, at p. 195. Ibid. Gabrielle Kirk McDonald, ‘Crimes of Sexual Violence: The Experience of the International Criminal Tribunal’, (2000) 39 Columbia Journal of Transnational Law 1, at p. 8.

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peace.’116 But some judges suspect that plea agreements do not bring truth. They are bartered compromises that may obscure rather than reveal the truth. The same Trial Chamber warned that ‘[n]either the public, nor the judges themselves come closer to know the truth beyond what is accepted in the plea agreement. This might create an unfortunate gap in the public and historical record of the concrete case.’117 Another objective of the tribunals, often suggested in the political documents as well as in judgments, is to ‘end impunity’ and ‘promote respect for the rule of law globally’.118 The tribunals have driven the growing campaign against impunity that is now a prominent part of the international human rights movement and that has spread to national criminal jurisdictions. Decades of de facto impunity for human rights abuses and atrocities began to come to an end in May 1993, with the establishment of the ICTY. Though still not consistent and comprehensive, to a large extent because of the political considerations explained so eloquently by Richard Goldstone,119 it has now become increasingly untenable that genocide, crimes against humanity and war crimes go unpunished. In 1993, the prospect of punishment for international crimes was exceedingly remote. A little more than a decade later, it is a distinct possibility. Perhaps in another ten years it will be a reasonable probability. Though certainly not an objective, one of the great accomplishments of the tribunals has been the progressive development of international law, especially in the areas of international humanitarian law, international criminal law and, possibly to a lesser extent, international human rights law. With their now-rich experience, which is reflected in voluminous case law, the ad hoc tribunals have prepared the way for the International Criminal Court. Concepts and provisions of the humanitarian law conventions and other instruments that lay dormant for decades have now been developed and made consistent with contemporary standards of criminal justice and international human rights law.

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Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 3. Similarly, Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 149. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 122. Ibid., para. 59. Above note 109.

3 Sources of law

The United Nations International Criminal Tribunals sit astride an intriguing ambiguity, in that they seem related to both national law and international law. Their relationship with national law flows inexorably from their role as replacements for domestic courts. The overlap between the two systems is manifested within the statutes of the three tribunals by the need for such rules as primacy, in order to determine whether national courts or the international tribunals take precedence in the event of parallel or conflicting prosecutions, and non bis in idem, to govern situations where there is a possibility of multiple convictions. In other words, in terms of their functions, the tribunals are in many respects not very diVerent from national courts. Inevitably, where the applicable law instruments are inadequate for the solution of legal problems, the international criminal tribunals draw upon national law. Here there are issues as to whether there is a preference for the national criminal law of the State that would ordinarily have jurisdiction, or for some hybrid of diVerent systems of national law. All three statutes make specific reference to the possible application of the national criminal law of the State where the crime was committed. In the case of the ICTYand ICTR, this occurs in the sentencing provisions.1 The SCSL Statute gives national law a more prominent role, assigning a distinct role to Sierra Leone’s criminal procedural law,2 as well as incorporating some oVences drawn from the national law.3 As institutions of international law, however, the tribunals partake in an autonomous and distinct body of legal norms. The international dimension was highlighted by the ICTY in its first annual report to the United Nations, where it cited the Dutch judge on the International Military Tribunal for the Far East (‘Tokyo Tribunal’), B. V. A. Ro¨ling: ‘For the very reason that war crimes are violations of the laws of war, that is of international law, an international judge should try the international oVences. He is the best

1 2 3

ICTY Statute, art. 24(1); ICTR Statute, art. 23(1). SCSL Statute, art. 14(2). Ibid., arts. 1(1), 5.

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qualified.’4 In his dissenting opinion in Erdemovic´, Judge Cassese wrote: ‘This International Tribunal is called upon to apply international law, in particular our Statute and principles and rules of international humanitarian law and international criminal law. Our International Tribunal is a court of law; it is bound only by international law.’5 He noted that applicable legal norms ‘are reached by virtue of a contemplation of the unique object and purpose of an international criminal court, and the constraints to which such a court is subject, rather than by reference to national criminal courts and their case-law’.6 Generally, the tribunals have acted as if there was a provision in the statutes inviting them to apply, as residual law, the recognised sources of public international law, especially customary international law. According to the ICTR Appeals Chamber, ‘[t]he International Tribunal is a unique institution, governed by its own Statute and by the provisions of customary international law, where these can be discerned’.7 The authoritative statement of the sources of public international law is article 38(1) of the Statute of the International Court of Justice: Article 38(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

According to the ICTY Appeals Chamber, ‘[a]rticle 38 is generally regarded as a complete statement of the sources of international law’.8 Article 38 of the Statute of the International Court of Justice establishes no hierarchy among 4

5

6 7

8

First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 4, citing B. V. A. Ro¨ling, ‘The Law of War and the National Jurisdiction since 1945’, in Hague Academy of International Law, Collected Courses, 1960-II, Leyden: A. W. SijthoV, 1961, p. 354. Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 11(ii). Ibid., para. 10. Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, fn. 364. In Erdemovic´ (IT-96-22A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 40, the Appeals Chamber says that the sources are ‘exhaustively listed’ in article 38(1). In fact, this statement is not precise. There are other sources of public international law not

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the three primary sources – treaties (conventions), custom and general principles – listed in sub-paragraphs (a), (b) and (c), but in reality the first two take precedence. All of these sources figure in the case law of the tribunals. The principal legal instrument of each of the three ad hoc tribunals is its statute. Pursuant to an authorisation within the statutes, the judges of each tribunal have also adopted their own Rules of Procedure and Evidence (RPE).9 In comparison with the International Court of Justice, however, there is no distinct provision defining the ‘applicable law’ to be applied by the court. Similarly, article 21 of the Rome Statute of the International Criminal Court not only identifies the relevant sources of law; it also sets out a hierarchy among them.10 It does not appear obvious that the judges of the ad hoc tribunals are even entitled to go beyond their statutes for sources of applicable law, given the silence of the statutes in this respect. By comparison, international human rights tribunals like the United Nations Human Rights Committee or the European Court of Human Rights do not, as a general rule, apply sources of law in this manner, although they may often look to authorities from other jurisdictions. Obviously, the statutes do not provide answers to every legal problem that may come before the tribunals. In the areas of procedure and evidence, the judges are entitled to devise their own rules, although the enabling provisions in the statutes give no real direction as to the body or bodies of law that ought to inspire them in this essentially legislative work.11 To some extent, lacunae in the statutes may be filled on the basis of doctrines of implied or inherent powers. But the judges of the ad hoc tribunals have gone much further, making their courts living laboratories of public international law and comparative criminal law. Some of this search for legal rules in extrinsic sources seems justifiable in accordance with the statutes themselves. Probably the clearest example of this is the reference, in article 3 of the ICTY Statute, to ‘violations of the laws and customs of war’. The introductory paragraph or chapeau of article 3 says that ‘[s]uch violations shall include, but not be limited to . . .’. In applying this provision, the ICTY judges must necessarily consider applicable legal rules drawn from the law of armed conflict, both customary and conventional, using international and national sources. All three statutes also make direct reference to instruments of Geneva law: in the case of article 2 of the ICTY

9

10 11

enumerated in article 38(1), for example, unilateral acts. See also: Kupresˇkic´ (IT-95-16T), Judgment, 14 January 2000, para. 540. ICTY Statute, art. 15; ICTR Statute, art. 14. The SCSL inherited the RPE of the ICTR, in accordance with SCSL Statute, art. 14(1), but they were promptly amended in several respects by the judges of the SCSL, in accordance with art. 14(2) of the Statute. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9. ICTY Statute, art. 15; ICTR Statute, art. 14; SCSL Statute, art. 14.

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Statute, to the grave breaches provisions of the four Geneva Conventions,12 and in the case of article 4 of the ICTR Statute and article 3 of the SCSL Statute, to violations of common article 3 to the Geneva Conventions13 and Additional Protocol II.14 With respect to the crime against humanity of persecution, which is included in all three statutes,15 the link with other sources is an implied one, the text being derived from article 6(c) of the Nuremberg Charter.16 The tribunals have concluded that the crime against humanity of ‘persecution’ refers to denial ‘of a fundamental right, laid down in international customary or treaty law’,17 thereby inviting recourse to other sources. The term ‘international law’ apparently owes its origin to Jeremy Bentham, and has prevailed since his time over the more ancient expression ‘law of nations’ (jus gentium).18 The case law of the tribunals has distinguished various disciplines within the general rubric of international law, notably international humanitarian law, international criminal law and international human rights law. The very names of the ICTY and ICTR make reference to them as institutions charged with prosecuting serious violations of ‘international humanitarian law’. In the Tadic´ jurisdictional decision, the ICTY Appeals Chamber spoke of the ‘more recent and comprehensive notion of ‘‘international humanitarian law’’, which has emerged as a result of the influence of human rights doctrines on the law of armed conflict’.19 Apparently, the term ‘international humanitarian law’ was first used in 1953, by the International Committee of the Red Cross.20 But to the extent that the subject-matter jurisdiction of the tribunals includes crimes that can be committed in time of

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17 18

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Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1949) 75 UNTS 31, art. 50; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 85, art. 51; Convention Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, art. 130; Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 147. Ibid., art. 3 (common). Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609. ICTY Statute, art. 5(h); ICTR Statute, art. 3(h); SCSL Statute, art. 2(h). Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 195. Alain Pellet and Patrick Daillier, Droit international public, 7th edn, Paris: LGDJ, 2002, p. 35. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 87. Dietrich Schindler, ‘Significance of the Geneva Conventions for the Contemporary World’, (1999) 836 International Review of the Red Cross 715, at fn. 4.

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peace as well as war, namely genocide and crimes against humanity, it is incorrect to describe them as tribunals of international humanitarian law. As a distinct discipline, ‘international criminal law’ refers to both the use of international law as an adjunct to national prosecutions – through mechanisms like extradition and mutual legal assistance – and as an autonomous system of prosecution of ‘international oVences’. On numerous occasions, the tribunals have identified themselves as institutions of both international humanitarian law and ‘international criminal law’.21 Occasionally decisions have referred to the two terms as if they were synonymous.22 Sometimes, there are references to criminal law doctrines such as aiding and abetting or complicity, which are well known in national criminal law, but as if they have an autonomous and distinct status within international criminal law.23 The Appeals Chamber has described the ICTY Statute as a codification of certain principles of international criminal law.24 In Furundzˇija, the Trial Chamber spoke of ‘general principles of international criminal law’, adding that if they were of no avail, reference could be made ‘to the general principles of international law’.25

The statutes The statutes of the ICTY and ICTR are enactments of the Security Council, annexed to resolutions adopted pursuant to Chapter VII of the Charter of the United Nations.26 The two institutions are deemed to be ‘subsidiary organs’ of the Security Council, in accordance with article 29 of the Charter of the United Nations, which authorises the Council to ‘establish such subsidiary organs as it deems necessary for the performance of its functions’. Under article 25 of the Charter, all Member States of the United Nations agree ‘to accept and carry out’ decisions of the Council. Consequently, the statutes declare that ‘States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law’, and moreover that ‘States shall 21

22 23

24 25 26

Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 113(iii); Akayesu (ICTR-964-A), Judgment, 1 June 2001, para. 22; Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 514; Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 139. Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 470. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 405; Furundzˇija (IT-9517/1-T), Judgment, 10 December 1998, paras. 162, 164, 177, 249, 281; Tadic´ (IT-94-1A), Judgment, 15 July 1999, paras. 225, 226, 254; Kunarac et al. (IT-96-23-T & IT-96-23/ 1-T), Judgment, 22 February 2001, para. 494; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 476. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 186. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 182. UN Doc. S/RES/827 (1993), annex; UN Doc. S/RES/955 (1994), annex.

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comply without undue delay with any request for assistance or an order issued by a Trial Chamber .’27 The Statute of the SCSL is an agreement reached between the Government of Sierra Leone and the United Nations. It is annexed to another instrument, the ‘Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone’. The latter document is an international treaty between a sovereign State and an intergovernmental organisation. The Statute binds the two parties, but it lacks any more general application. Its provisions cannot be invoked against a third State in the absence of that State’s specific consent to be bound by the Statute or the Agreement. For this reason, the SCSL Statute has no provision on State cooperation with the Court that is analogous to those in the statutes of the other two ad hoc tribunals.28 The ICTY and ICTR statutes have been referred to as sui generis instruments that resemble treaties,29 ‘proximate in nature to a treaty’,30 although they are legally ‘very diVerent instrument[s] from an international treaty’.31 The principal consequence32 of this analogy between international treaties and the ICTY and ICTR statutes has been recourse to the interpretative provisions of the Vienna Convention on the Law of Treaties,33 which are to a large extent a codification of customary legal norms.34 The Vienna Convention provisions establish a general rule, by which a treaty is to be interpreted ‘in good faith in 27 28

29

30

31

32

33

34

ICTY Statute, art. 29(1); ICTR Statute, art. 28(1). See ICTY Statute, art. 29; ICTR Statute, art. 28. See also: UN Doc. S/RES/827 (1993), para. 4; UN Doc. S/RES/955 (1994), para. 2. Kanyabashi (ICTR-96-15-A), Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para. 15; Nsengiyumva (ICTR-96-12-A), Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para. 14; Tadic´ (IT-94-1T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 18. Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, p. 21. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 282. But for the argument that the statutes are treaties, see: Charles Lister, ‘What’s in a Name? Labels and the Statute of the International Criminal Tribunal for the Former Yugoslavia’, (2005) 18 Leiden Journal of International Law 77. Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, p. 21. Kanyabashi (ICTR-96-15-A), Joint Separate and Concurring Opinion of Judge Wang and Judge Nieto-Navia, 3 June 1999, para. 10; Tadic´ (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 18. Gabcikovo–Nagymaros Project, [1997] ICJ Reports 39, paras. 46, 99, 104. On interpretation of the statutes generally, see: William A. Schabas, ‘Interpreting the Statutes of the Ad Hoc Tribunals’, in L. C. Vohrah et al., eds., Man’s Inhumanity to Man, The Hague: Kluwer Law International, 2003, pp. 847–888.

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accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.35 The Vienna Convention authorises recourse to ‘supplementary means of interpretation’, including the preparatory work of the treaty and the circumstances of its conclusion.36 The ad hoc tribunals have often cited these provisions, especially the general rule that ultimately leads to a large and liberal construction of the provisions of the statutes.37 Recourse to the Vienna Convention principles of interpretation has also been made with respect to the Rules of Procedure and Evidence.38 In other important decisions concerning interpretation of the provisions of the statutes, judges have applied the interpretative scheme set out in the Vienna Convention but without citing it. In the Tadic´ jurisdictional decision, for example, there was no explicit reference to the Vienna Convention. But in substance, the majority of the Appeals Chamber applied the principles set out in articles 31 and 32 of that instrument.39 In the Tadic´ appeal on the merits, a diVerently constituted ICTY Appeals Chamber referred to an advisory opinion of the International Court of Justice rather than to the Vienna Convention as authority for what amounts to a jurisprudential gloss of article 31(1): ‘The first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endeavour to give eVect to them in their natural and ordinary meaning in the context in which they occur.’40 In a dissenting opinion, Judge Shahabuddeen said the Tribunal was entitled to refer to general principles of interpretation pursuant to the Vienna Convention on the Law of Treaties because these are norms generally accepted in domestic jurisdictions.41 But in the case of criminal law instruments, most national legal systems would probably favour a rule of strict construction, in accordance with the maxim in dubio pro reo (i.e., where there is doubt, it should benefit the accused). Yet the ad hoc tribunals have made only rare and essentially perfunctory references to what is almost surely a general principle

35 36 37

38

39

40 41

Vienna Convention on the Law of Treaties, (1979) 1155 UNTS 331, art. 31(1). Ibid., art. 32. Bagosora et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste Bagosora and 28 Others, 8 June 1998, paras. 28–29; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1161. Kanyabashi (ICTR-96-15-A), Joint Separate and Concurring Opinion of Judge Wang and Judge Nieto-Navia, 3 June 1999, para. 11. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 71–142. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 282. Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, pp. 21–22. Also: Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999.

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of law.42 It is not without interest that the drafters of the Rome Statute of the International Criminal Court expressly departed from the Vienna Convention rules, specifying that ‘[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.’43 Besides the Vienna Convention principles, judges of the tribunals have drawn upon such concepts as purposive or teleological interpretation,44 logical construction,45 lex specialis or generalia specialibus non derogant,46 ejusdem generis,47 eVet utile48 and expressio unius est exclusio alterius.49 The Vienna Convention indicates that interpreters may refer to ‘the preparatory work of the treaty and the circumstances of its conclusion’. These materials, all of which have been cited in decisions of the ad hoc tribunals, consist mainly of the debates in the Security Council,50 other Security Council 42

43 44

45

46

47

48

49 50

Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 49; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 319; Tadic´ (IT-94-1-A), Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, para. 73; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 408–413; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 103; Rutaganda (ICTR-96-3), Judgment and Sentence, 6 December 1999, para. 51; Musema (ICTR-96-13-T), Judgment, 17 January 2000, para. 155; Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, fn. 329; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, Ch. III, para. 2.1.1s; Stakic´ et al. (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 47. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 22(2). Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 547; Delalic´ et al. (IT-96-21A), Judgment, 20 February 2001, para. 81; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 153; Norman et al. (SCSL-04-14-AR73), Decision on Amendment of the Consolidated Indictment, 17 May 2005, para. 45. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 83; Tadic´ (94-1-A), Judgment, 15 July 1999, para. 284; Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 571; . Blasˇkic´ (IT-95-14-T), Decision of Trial Chamber I on the Defence Motion to Dismiss, 3 September 1998; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 18; Stakic´ et al. (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 48. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 166; Kupresˇkic´ (IT-9516-T), Judgment, 14 January 2000, para. 620. Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995; Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 21; Kordic´ et al. (IT-95-14/2AR73.6), Decision in the Appeals Chamber Regarding the Admission into Evidence of Seven AYdavits and One Formal Statement, 18 September 2000; Niyitegeka (ICTR-9614-A), Judgment, 9 July 2004, para. 53. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 166; Kupresˇkic´, para. 623. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 75, 79, 82, 86, 87, 138, 143; Delalic´ et al.

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materials,51 the reports of the Secretary-General,52 and submissions by various Member States during the drafting process.53 The Secretary-General’s report to the Council at the time the ICTY was being created has been described as ‘an explanatory document to the proposed Statute’ that was subsequently ‘endorsed’ by the Security Council, and as ‘an authoritative interpretation of the Statute’.54 No similar document exists for the ICTR, although the Secretary-General issued a report in early 1995 that is not irrelevant to issues of interpretation.55 The SCSL has probably the most detailed preparatory materials, in the form of a report by the SecretaryGeneral followed by a series of exchanges between Secretariat and Security Council as the text was being fine-tuned.56

51

52

53

54

55

56

(IT-96-21-T), Judgment, 16 November 1998, para. 169; Kordic´ et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 29; Kordic´ et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Strike Paragraphs 20 and 22 and All References to Article 7(3) as Providing a Separate or an Alternative Basis for Imputing Criminal Responsibility, 2 March 1999, para. 5. Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May 2004, para. 5. E.g., Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 75, 88, 143; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 113, 126, 131, 135, 158, 170, 178, 338, 351; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 110; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 160; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 44; Ngeze et al. (ICTR-96-11-T), Joint Separate Opinion of Judge Lal Chand Vohrah and Judge Rafael Nieto-Navia, 5 September 2000, para. 14. Also: Nahimana et al. (ICTR99-52-T), Judgment and Sentence, 3 December 2003, para. 102; Gbao (SCSL-04-15-AR72 (E)), Decision on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, 25 May 2004, para. 10; Kallon et al. (SCSL-04-15, 16 and 17-AR72-E), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 41; Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May 2004, paras. 3–5. Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 9; Tadic´ (IT-94-1AR72), Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 57. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 295–296 (and see paras. 293–297 generally). ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915; ‘Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2000/1234; ‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/40; ‘Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/95; ‘Letter dated 12 July 2001 from the President of the Security Council addressed to the SecretaryGeneral’, UN Doc. S/2001/693.

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Similar ‘preparatory’ materials that the tribunals have found helpful include the report of the Commission of Experts, created pursuant to a mandate from the Security Council in 1992 and whose initial activities influenced the establishment of the ICTY.57 They have also made abundant reference to work that went on within the International Law Commission, in parallel to their creation, and that was certainly considered by the drafters of their statutes, specifically the concluding years of study of the Draft Code of Crimes Against the Peace and Security of Mankind and, to a lesser extent, the draft statute of the international criminal court.58 For the purposes of interpreting the statutes, perhaps the most significant norm has been the principle of legality, often identified by one of its Latin synonyms, nullum crimen sine lege. All three tribunals exercise jurisdiction over crimes committed prior to their establishment, as well as prospectively. When the ICTY Statute was being drafted, the Secretary-General and the Security Council sought to avoid potential challenges in this respect by confining the Tribunal’s subject-matter jurisdiction to oVences that are ‘beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise’.59 This statement, which appears in the Secretary-General’s Report to the Security Council, has been used to justify what amounts to an interpretative presumption, described by the Appeals Chamber as : the principle whereby, in case of doubt and whenever the contrary is not apparent from the text of a statutory or treaty provision, such a provision must be interpreted in light of, and in conformity with, customary international law. In the case of the Statute, it must be presumed that the Security Council, where it did not explicitly or implicitly depart from general rules of international law, intended to remain within the confines of such rules.60

57

58

59

60

Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 8, 18, 19; Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 54; Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 640; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 357; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 54. E.g., Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 48; Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 11; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 315, fn. 535; Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 518. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 34. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 287 (see also para. 296).

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But some judges have approached this question diVerently, viewing the requirement that the statutes be consistent with customary law in force at the time as a substantive requirement, and not just an interpretative presumption. For example, in ruling upon a challenge to an indictment, one Trial Chamber said ‘the International Tribunal only has jurisdiction over oVences that constituted crimes under customary international law at the time the alleged oVences were committed’.61 In Aleksovski, the Appeals Chamber said that the principle of legality required ‘that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission’.62 At the SCSL, Judge Robertson, dissenting, was prepared to ‘grant a declaration to the eVect that [the accused] must not be prosecuted for an oVence of enlistment . . . alleged to have been committed before the end of July 1998’,63 despite the terms of the Statute. In other words, were judges to conclude that the text of an oVence was inconsistent with customary international law, and if the discrepancy could not be resolved by interpretation, they would have no choice but to declare the impugned provision to be inoperative. In the judgment of the International Military Tribunal for the Far East, Judges Pal and Ro¨ling took a similar view with respect to crimes against peace.64 But nothing in the statutes suggests that the judges have any such power. Refusing to apply a provision in the Statute amounts to an exercise of judicial review over the Security Council, and it is highly doubtful it was ever the intent of the Council to give the tribunals such authority.

Rules of procedure and evidence The statutes authorise the judges to make their own rules of procedure and evidence.65 ‘The judges of the International Tribunal shall adopt rules of 61

62

63

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Kordic´ et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 20. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 126. Also: Kordic´ et al. (IT95-14/2-PT), Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 20. Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May 2004, para. 47. B. V. A. Ro¨ling and C. F. Ru¨ter, The Tokyo Judgment, vol. II, Amsterdam: APA – University Press Amsterdam, 1977. See: Rod Dixon, ‘Developing International Rules of Evidence for the Yugoslav and Rwanda Tribunals’, (1997) 7 Transnational Law and Contemporary Problems 81; Daryl A. Mundis, ‘The Legal Character and Status of the Rules of Procedure and Evidence of the Ad Hoc International Tribunals’, (2001) 1 International Criminal Law Review 191; Daniel D. Ntanda Nsereko, ‘Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’, (1994) 5 Criminal Law Forum 507.

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procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.’66 The SCSL Statute imports the ICTR Rules of Procedure and Evidence in force at the time of the Court’s establishment, making them applicable mutatis mutandis to the conduct of proceedings. However, it also empowers the judges to amend these rules, or to adopt additional rules, adding that ‘they may be guided, as appropriate, by the Criminal Procedure Act, 1965, of Sierra Leone’.67 The first version of the ICTY Rules was adopted in February 1994 at the second plenary of the judges. The judges had little precedent to guide them. The procedural law of the post-Second World War tribunals was exceedingly laconic, and of little practical importance.68 The ICTY RPE were based largely on a proposal from the American Bar Association, reinforced by the determination of Judge Gabrielle McDonald from the United States.69 The other judges may have been caught oV guard, or unprepared. The consequence, however, was that the RPE had a decidedly adversarial flavour to them, and this was only amplified in the practice of the ICTY by the presence of an important contingent of lawyers seconded by the United States government. Judge McDonald later told an American journalist: ‘I guess I was playing the typical American role – we know it all, we control it all.’70 The ICTR RPE were initially copied from the ICTY RPE, but have themselves evolved and now diVer in significant respects.71 Though based on the ICTR Rules, the SCSL Rules have also taken on a life of their own, inspired by a desire to streamline procedures in keeping with the ‘lean’ resources of the Tribunal,72 as well as taking into account other procedural models, such as the RPE of the International Criminal Court.73 Authorising judges to make their own rules of procedure and evidence is not at all exceptional in the practice of international tribunals. The judges of 66 67 68

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ICTY Statute, art. 15; ICTR Statute, art. 14. SCSL Statute, art. 14. First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 54. The drafting of the Rules is described in paras. 52–97 of the First Annual Report. M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia, Irvington-on-Hudson, NY: Transnational Publishers, 1996, p. 863. ‘Judging Tadic´ ’, The American Lawyer, September 1995, p. 63. For example, in Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999, an ICTR Trial Chamber noted the diVerences in Rule 11 with respect to the two tribunals. Norman (SCSL-03-08-PT), Decision on the Applications for a Stay of Proceedings and Denial of Right to Appeal, 4 November 2003. See, e.g., Rule 96 of the SCSL RPE, which is derived from Rule 70 of the ICC RPE. It is a very marked departure from the corresponding provisions (Rule 96) in the ICTY and ICTR statutes.

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the International Military Tribunal at Nuremberg made rules of procedure and evidence, but these were very summary in contrast with the elaborate and sophisticated body of legal norms generated by the ad hoc tribunals.74 The Statute of the International Criminal Court reserves the rule-making power to the Assembly of States Parties, and only allows the judges to make provisional rules in urgent cases where the existing RPE do not deal with a specific problem.75 The first President of the ICTY, Antonio Cassese, told the United Nations General Assembly in 1996 that it was ‘essential, in the interests of justice, to amend the Rules in light of new problems . . . or unanticipated situations’.76 The rules of the ad hoc tribunals specify that they are to be adopted and amended by the plenary of judges.77 The rule-making power of the judges does not sit well with everyone, and potentially confuses the legislative and judicial functions. Where there is no rule to govern a situation, judges will sometimes innovate, rather than demand that the plenary adopt a provision to govern the situation.78 They also criticise and even depart from specific Rules, although no subsequent amendment seems to reflect this development.79 Prosecutor Louise Arbour expressed her ‘concern’ about the rule-making power of the judges, noting a lack of consultation in their adoption, especially as concerns the defence bar.80 Some critics have argued that allowing judges to make and to amend the Rules violates the maxim nullum crimen sine lege, and the principle of legality.81 But this is not a very strong critique, because the judges cannot legislate new crimes. According to the Appeals Chamber, the rule-making power given to judges 74

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Diane Marie Amann, ‘Harmonic Convergence? Constitutional Criminal Procedure in an International Context’, (2000) 75 Indiana Law Journal 809, at pp. 818–820. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 51(3). Cited in Virginia Morris and Michael P. Scharf, An Insider’s Guide to the International Criminal for the Former Yugoslavia, vol. II, Irvington-on-Hudson, NY: Transnational Publishers, 1995, p. 423. ICTY RPE, Rule 6; ICTR RPE, Rule 6; SCSL RPE, Rule 6. See: Bagosora (ICTR-96-7-T), Decision on the Defence Motion for Pre-determination of Rules of Evidence, 8 July 1998. E.g., Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999. An ICTY Trial Chamber recognised a form of privilege for representatives of the International Committee of the Red Cross, although Rule 97 of the ICTY RPE deals with the subject of privilege and only acknowledges this between solicitor and client. E.g., Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 463, which explained why Rule 96 of the ICTY RPE was incorrectly formulated. The SCSL judges fixed this in light of the decision, but no amendment along the same lines has ever been made to the ICTY or ICTR RPE. Louise Arbour, ‘The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results’, (1999) 3 Hofstra Law and Policy Symposium 37, at p. 45. Mia Swart, ‘Ad Hoc Rules for Ad Hoc Tribunals: The Rule-Making Power of the Judges of the ICTY and ICTR’, (2002) 18 South African Journal of Human Rights 570, at p. 578.

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‘does not permit rules to be adopted which constitute new oVences, but it does permit the judges to adopt rules of procedure and evidence for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction’.82 In her dissent in Jelisic´, Judge Wald later said: ‘Needless to say, the Rules cannot confer power on the Chambers greater than that provided by the Statute, unless it is power recognised universally as essential to the functioning of a court of law.’83 The Appeals Chamber has also ruled that the Statute gives the judges no power to adopt rules which constitute new defences.84 In other words, the judges can only apply defences, excuses and justifications that already exist in international law; they are not, in this sense, legislators who can devise ‘new’ defences without some pre-existing authority. Defences need not be spelled out within the statutes, however, to the extent that they are recognised under international law more generally. Although this is nowhere stated in either the statutes or the rules of the ad hoc tribunals, in contrast with the situation of the International Criminal Court,85 the ICTY Appeals Chamber has made it clear that where there is a conflict between the two instruments, the Statute must clearly prevail over the RPE.86 The relationship of the RPE to the Statute has been explained by an ICTY Trial Chamber: The Rules and all other applicable instruments, including the Directive [on Assignment of Defence Counsel] and the ICTY Code [of Conduct for Defence Counsel], are to be read and applied subject to the Statute. That is the natural relationship between an enabling instrument and any other instrument, including Rules, made thereunder – a point not specifically covered in the Statute of the ICTY, but expressly set out in the ICC Statute.87

There have been challenges to the legality of specific rules, but no cases of any conflict appear to have been found.88 The subordinate position of the RPE, as 82

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Tadic´ (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, para. 24 (emphasis in the original). Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 7. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 51(5). Tadic´ (IT-94-1-A), Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, para. 36; Tadic´ (IT -94-1-AAR77), Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001; Brðanin (IT-99-36-PT), Decision on Motion to Dismiss Indictment, 5 October 1999, para. 12. Milosˇevic´ (IT-02-54-T), Decision on Assigned Counsel’s Motion for Withdrawal, 7 December 2004, para. 13 (references omitted). For example: Barayagwiza (ICTR-97-19-I), Decision on the Extremely Urgent Motion by the Defence for Orders to Review and/or Nullify the Arrest and Provisional Detention of

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delegated legislation, is confirmed by decisions in which the judges hold that Rules must be interpreted in conformity with the Statute.89 The judges have taken a fairly liberal approach to interpretation of the RPE. According to the Appeals Chamber, ‘[t]he purpose of the Rules is to promote a fair and expeditious trial, and Trial Chambers must have the flexibility to achieve this goal’.90 Accordingly, ‘it is plain from the successive amendments of the Rules that the Rules have been refined over the years through the practice of the Chambers in applying them’, subject to the requirement that any new practice ‘serves the mandate of the Tribunal and conforms to internationally recognised standards’. The ICTY Appeals Chamber has declared that the Rules are ‘not exhaustive as to the detailed steps or measures that Chambers may take in fulfilling the mandate of the Tribunal’.91 According to one judgment, The statutory instrument for the Tribunal, the Statute, delegates the power of regulating matters to the Judges in plenary . . . [T]he Rules represent, as it were, an interpretation of the provisions of the Statute. If there is no outright conflict of terms between the two documents, the Judges are presumed to have the liberty to amend and improve on the Rules in consideration of any unusual problems which arise in practice but are not covered by the existing Rules. While the Judges may have that liberty, certain general principles of law, recognised by all major legal systems but not explicitly provided for by the Statute, would always, we submit, assume precedence over the need to incorporate in the Rules a new practice that may appear to the Judges to be useful. This is the case with the principle of recusal in the interests of fair trials, which though not articulated in the Statute, finds expression in Rule 15.92

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the Suspect, 17 November 1998, p. 6; Simic´ et al. (IT-95-9-PT), Decisions on Simo Zaric´’s and Miroslav Tadic´’s Applications for Provisional Release, 4 April 2000; Brðanin et al. (IT99-36-T), Decision on ‘Motion to Declare Rule 90(H)(ii) Void to the Extent it is in Violation of Article 21 of the Statute of the International Tribunal’ by the Accused Brðanin and on ‘Rule 90(H)(ii) Submissions’ by the Accused Momir Talic´, 22 March 2002. See, however: Bagosora et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste Bagosora and 28 Others, 8 June 1998, para. 39. Tadic´ (IT-94-1-A-AR77), Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001; Milosˇevic´ (IT-99-37-PT, IT-01-50-PT and IT-01-51-PT), Decision on Prosecutor’s Motion for Joinder, 13 December 2001. Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 19. Blagojevic´ et al. (IT-02-60-AR73/AR73.2/AR73.3), Decision, 8 April 2003, para. 15. Kanyabashi (ICTR-96-15-A), Joint Separate and Concurring Opinion of Judge Wang and Judge Nieto-Navia, 3 June 1999, para. 20; Nsengiyumva (ICTR-96-12-A), Joint Separate and Concurring Opinion of Judge Wang and Judge Nieto-Navia, 3 June 1999.

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In Barayagwiza, the ICTR Appeals Chamber said that Rule 120(A), with its requirement that in an eVort to introduce additional evidence in review proceedings a party must establish due diligence, is only ‘directory in nature’.93 It may be that the principal legacy of Barayagwiza is its invitation to override the express provisions of the RPE where they appear to go beyond the terms of the Statute. In Kupresˇkic´, the ICTY Appeals Chamber endorsed the pronouncement in Barayagwiza that Rule 120 was only ‘directory’.94 It seems preferable that they should be altered by all permanent judges of the court, sitting in plenary, and not on an ad hoc basis by a single chamber, even when it is the Appeals Chamber. Judges of the Appeals Chamber have no special status when it comes to adoption and amendment of the Rules. On occasion, faced with lacunae in the statutes and the RPE, judges have devised a solution and then ordered that it be complied with in the future, thereby, in eVect, legislating additional rules, but by judicial fiat. In one case, after noting that there was no mandatory requirement in the Statute or the RPE for the Prosecutor to give the defence an inventory of personal items seized from an accused at the time of arrest, and after indicating that this might well be implied by ‘the spirit of Rule 5, which requires the parties to comply with general principles of fairness’, an ICTR Trial Chamber ‘Direct[ed] the Prosecutor that, in future, under the spirit of rule 5 of the Rules [she] should see to it that she prepares an inventory of properties seized during investigation which shall be signed by the suspect’.95 But the ICTR Appeals Chamber has described as ‘unhelpful’ a suggestion by the Prosecutor that the tribunals may recognise procedures that are not specifically prevented by the RPE. ‘Clearly, the ICTR may apply what is not specifically prohibited by the Rules only where this would be consistent with the object and purposes of the Statute’, said the Appeals Chamber.96

Other subordinate legislation In addition to the Rules of Procedure and Evidence, there are other forms of subordinate or delegated legislation within the applicable law of the tribunals.

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Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 65. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, fn. 104. Ruggiu (ICTR 97-32-I), Decision on the Defence Motion for Restitution of Personal EVects, 7 July 1998. Bagosora et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste Bagosora and Twenty-eight Others, 8 June 1998, paras. 44–45. For an even more extreme view, holding that what is not allowed must be prohibited, see: Aleksovski (IT-95-14/ 1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 February 1999, para. 22.

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Examples include the Rules of Detention97 and the Code of Conduct for Defence Counsel,98 as well as the Directive on Assignment of Defence Counsel. The Rules of Detention and the Code are adopted by the Plenary, whereas the Registrar proclaims the Directive on Assignment of Defence Counsel (‘in close consultation with the judges’).99 The provision in the statutes authorising the adoption of the Rules is adequate authority not only for the RPE themselves but for all other delegated legislation, whatever its formal title. The RPE delegate power to the President to adopt Practice Directions. According to ICTY Rule 19(B), ‘[t]he President may from time to time, and in consultation with the Bureau, the Registrar and the Prosecutor, issue Practice Directions, consistent with the Statute and the Rules, addressing detailed aspects of the conduct of proceedings before the Tribunal’.100 Several such practice directions have been enacted, dealing with matters such as the length of written materials submitted by the parties, appointment of amici curiae and early release of prisoners. Perhaps the most important is the practice direction determining the procedure to be followed in adoption of amendments to the RPE, including the establishment of a Rules Committee, whose mandate is to consider amendments to the RPE and to report on this to the Plenary. In 1997, the ICTY established a Rules Committee, with primary responsibility for developing new Rules and proposing the amendment of existing ones.101 The Committee is composed of the President and four other judges. There are also non-voting representatives of the Registry, the OYce of the Prosecutor and defence counsel.102 The Registrar also issues ‘Practice Directions’ and similar orders. This is explicitly authorised by Rule 33(D) of the ICTR and SCSL RPE, and presumably

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For the ICTY: ‘Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal’, UN Doc. IT/38. On their adoption, see: First Annual Report of the ICTY, UN Doc. A/49/342-S/ 1994/1007, annex, paras. 98–116. For the ICTR: ‘Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal’. For the SCSL: ‘Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Special Court for Sierra Leone or Otherwise Detained on the Authority of the Special Court for Sierra Leone’, adopted 7 March 2003. For the ICTY: ‘Code of Professional Conduct for Counsel Appearing Before the International Tribunal’, UN Doc. IT/125. For the ICTR: ‘Code of Profesional Conduct for Defence Counsel’. For the SCSL: ‘Code of Conduct for Counsel’. First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 134. See also: ICTR RPE, Rule 19(B); SCSL RPE, Rule 19(B). The SCSL RPE omit the requirement of the other two tribunals that the President undertake prior consultation with the Bureau, the Registrar and the Prosecutor. Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, annex, para. 106. Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 39; Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 30.

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an implied power resulting from the general provision dealing with ‘Functions of the Registrar’ in the ICTY RPE.103 The ICTY Registrar has adopted House Rules for Detainees, Regulations to Govern the Supervision of Visits to and Communications with Detainees, Regulations for the Establishment of a Complaints Procedure for Detainees, Regulations for the Establishment of a Disciplinary Procedure, a Code of Professional Conduct for Defence Counsel Appearing before the Tribunal and a Code of Ethics for Interpreters and Translators Employed by the Tribunal.104 When confronted with an issue concerning the relationship between the Court and the Sierra Leone Truth and Reconciliation Commission, the SCSL Registrar issued a ‘Practice Direction on the procedure following a request by a National Authority or Truth and Reconciliation Commission to take a statement from a person in the custody of the Special Court for Sierra Leone’.105 The subordinate position of such legislation has been confirmed in a holding of the ICTY Appeals Chamber that although the Directive on the Assignment of Defence Counsel did not provide for recourse to the Appeals Chamber against a decision not to assign counsel, this was required by article 20 (4) of the ICTR Statute.106

Treaty law Treaties are one of the three primary sources of public international law set out authoritatively in article 38(1)(a) of the Statute of the International Court of Justice. Many treaties have been referred to in the jurisprudence of the international tribunals. In some cases this is because of explicit or implicit reference to the treaties themselves within the statutes of the tribunals; in others, it is because the treaty was deemed applicable either to the territory in question or to the tribunal itself; and in some cases, treaties are referred to as evidence of customary international law.107 According to the 103 104 105

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ICTY RPE, Rule 33. Seventh Annual Report of the ICTY, UN Doc. A/55/273-S/2000/777, annex, para. 308. It was subsequently amended: ‘Revised Practice Direction on the procedure following a request by a State, the Truth and Reconciliation Commission, or other legitimate authority to take a statement from a person in the custody of the Special Court for Sierra Leone’, 4 October 2003. The Direction was applied in Norman (SCSL-03-08-PT), Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman, 29 October 2003; Norman (SCSL-03-08-PT), Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘the Commission’) and Chief Samuel Hinga Norman JP Against the Decision of His Lordship, Mr Justice Bankole Thompson, Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing With Chief Samuel Hinga Norman JP, 28 November 2003. Akayesu (ICTR-96-4-A), Order Relating to the Assignment of Counsel, 27 July 1999, pp. 2–3. On treaties as evidence of customary international law, see below, at pp. 98–100.

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ICTY Appeals Chamber, the Tribunal is authorised to apply ‘any treaty which: (i) was unquestionably binding on the parties at the time of the alleged oVence; and (ii) was not in conflict with or derogating from peremptory norms of international law, as are most customary rules of international humanitarian law’.108 All three statutes are derived from the central treaty of modern international law, the Charter of the United Nations.109 In recognising the legitimacy of inquiring into the legality of the creation of the tribunals themselves, under the kompetenz kompetenz principle,110 the judges of the ICTY and the ICTR are required to consider the general law of the United Nations, including the provisions of the Charter of the United Nations and the practice of the organisation’s principal organs. Interestingly, the ICTY has seemed quite alive to the issue of applicable law in ruling on this point, noting that although it has no specific authorisation to consider the law by which it was created, this is ‘a necessary component in the exercise of the judicial function’ that is ‘incidental or inherent’ to its jurisdiction.111 Chapter VII of the Charter is the basis of the obligation of States to comply with the orders of the ICTY and ICTR.112 The Charter is also justification for the establishment of the SCSL. The SCSL Appeals Chamber found the authority of the Security Council to mandate the establishment of a tribunal in article 1(1) of the Charter of the United Nations, namely, ‘eVective collective measures . . . for removal of threats to the peace’.113 In addition, there are references to other provisions of the Charter of the United Nations in the jurisprudence of the tribunals. For example, in Furundzˇija, a Trial Chamber referred to the Charter’s recognition that concern for the achievement of equality for women was ‘one of the principles reflected in

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Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 143. Ibid., paras. 7, 21–23; Tadic´ (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 12; Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 58; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 1; Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 769; Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras. 5–7; Hadzˇihasanovic´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002, paras. 97, 101, 173. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 19. Ibid., para. 19. Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras. 13, 32, 33. Fofana (SCSL-04-14-AR72(E)), Decision on Preliminary Motion on Lack of Jurisdiction materiae : Illegal Delegation of Powers by the United Nations, 25 May 2004, para. 21.

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the United Nations Charter’.114 In the Blasˇkic´ subpoena decision, the ICTY Appeals Chamber made reference to article 2(7) of the Charter, which is usually invoked in the name of State sovereignty. The Appeals Chamber noted that although article 2(7) ‘provides for a significant exception to the impenetrability of the realm of domestic jurisdiction in respect of Chapter VII enforcement measures . . . [a]s the Statute of the International Tribunal has been adopted pursuant to this very Chapter, it can pierce that realm’.115 In another case dealing with the duty to assist the Tribunal, an ICTY Trial Chamber noted that article 103 of the Charter of the United Nations, which establishes the judicial supremacy of the Charter over all other treaties, meant that ‘in the event of any conflict between a State’s obligations to NATO and SFOR on the one hand, and their obligations under the Charter on the other, their obligations under the latter prevail’.116 All three statutes refer to the Geneva Conventions of 12 August 1949,117 dealing with protection of the victims of armed conflict, including wounded combatants, prisoners of war and, arguably the most important category, civilians.118 Article 2 of the ICTY Statute cites the grave breaches provisions of the Conventions. In applying the concept of grave breaches, the ICTY has been required to consult other provisions of the conventions, such as those defining ‘protected persons’.119 Article 4 of the ICTR Statute and article 3 of the SCSL Statute cite common article 3 of the Conventions. The latter provisions also refer to Additional Protocol II to the Conventions, adopted in 1977.120 Various other provisions of the Geneva Conventions have also been invoked in judgments of the tribunals.121 114 115

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Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 202. Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 64. Simic´ et al. (IT-95-9-PT), Decision on Motion for Judicial Assistance to be Provided by SFOR and Others, 18 October 2000, para. 64. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1949) 75 UNTS 31, art. 50; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 85, art. 51; Convention Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, art. 130; Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 147. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 89; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 125, 136; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 52. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 68–171; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 147–152; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 56–84. Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 110 (art. 42 of the fourth Convention); Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 223 (art. 32

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Other important treaties of international humanitarian law are also referred to implicitly. Here, article 3 of the ICTY Statute is particularly germane. It states that ‘[t]he International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to . . .’ A short list of examples drawn from early treaty provisions is then set out. But from the outset, the Appeals Chamber held that article 3 was an ‘umbrella’ provision encompassing all serious violations of international humanitarian law entailing individual criminal responsibility, as these are defined in either customary or conventional law.122 This has been a broad invitation to consult a range of treaty sources. The Appeals Chamber, in Tadic´, explained: Before both the Trial Chamber and the Appeals Chamber, Defence and Prosecution have argued the application of certain agreements entered into by the conflicting parties. It is therefore fitting for this Chamber to pronounce on this. It should be emphasised again that the only reason behind the stated purpose of the drafters that the International Tribunal should apply customary international law was to avoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did not adhere to a specific treaty. (Report of the SecretaryGeneral, at para. 34.) It follows that the International Tribunal is authorised to apply, in addition to customary international law, any treaty which: (i) was unquestionably binding on the parties at the time of the alleged oVence; and (ii) was not in conflict with or derogating from peremptory norms of international law, as are most customary rules of international humanitarian law. This analysis of the jurisdiction of the International Tribunal is borne out by the statements made in the Security Council at the time the Statute was adopted. As already mentioned above (paras. 75 and 88), representatives of the United States, the United Kingdom and France all agreed that Article 3 of the Statute did not exclude application of international agreements binding on the parties.123

The text of article 3 of the ICTY Statute is to some extent drawn from the 1945 Nuremberg Charter,124 whose war crimes provision was in turn based on

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of the fourth Convention); Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004 (arts. 14, 24 and 51 of the fourth Convention). Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 94. Ibid., para. 143. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279. See, e.g.: Rwamabuka (ICTR-98-44-AR72.4), Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004, paras. 23–24; Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 49.

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the Regulations annexed to the fourth Hague Convention of 1907.125 The 1977 Additional Protocols to the Geneva Conventions have also been deemed incorporated, at least to a significant extent, within article 3 of the ICTY Statute. According to a Trial Chamber, the application of the Protocols within the context of article 3 resulted from their ratification, by the former Socialist Federal Republic of Yugoslavia, and whether they also reflected customary law at the relevant time was ‘beside the point’.126 Along the same lines, given some uncertainty as to whether article 4 of the ICTR Statute was consistent with customary international law, Trial Chambers have confirmed the application of common article 3 and Additional Protocol II within Rwanda as a matter of treaty law.127 The genocide provision in the ICTY and ICTR statutes is essentially identical to articles II and III of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.128 Case law has treated the provisions in the statutes as being, in eVect, a reference to the Convention. Thus, the travaux pre´paratoires of the Convention have been deemed of considerable relevance in interpreting the genocide provisions of the statutes themselves.129 The definition of crimes against humanity is also drawn from treaty law. Article 5 of the ICTY Statute, and the equivalent (but slightly diVerent) provisions in the other two statutes, is based on article VI(c) of the Nuremberg Charter.130 The tribunals have frequently referred to international human rights treaties, such as the International Covenant on Civil and Political Rights,131 the European Convention on Human Rights,132 the Convention Against Torture 125

126

127

128

129 130 131

132

Convention (IV) Respecting the Laws and Customs of War on Land, [1910] UKTS 9, annex, art. 46. See, e.g.: Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 561; Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 14; Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 227. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 167. See also: Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 25. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 156–158; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 90; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 242. Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277. Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 25, fn. 39, para. 142. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 289. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171. See: Limaj et al. (IT-03-66-AR65.3), Decision on Isak Musliu’s Request for Provisional Release, 31 October 2003, paras. 8–9; Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003. Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’), (1955) 213 UNTS 221. See: Hadzˇihasanovic´ et al.

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and Other Cruel, Inhuman and Degrading Treatment or Punishment,133 the International Convention on the Suppression and Punishment of the Crime of Apartheid,134 the Convention on the Rights of the Child;135 humanitarian law treaties, such as the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict;136 and international criminal law treaties, such as the International Convention for the Suppression of Terrorist Bombing137 and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.138 Reference to the International Covenant is particularly apropos, given that the fair trial safeguards provisions in the statutes are modelled on article 14 of that instrument.139 All three tribunals also have their own treaty obligations. Each is a party to a host State agreement, governing a range of issues including immunities and privileges of the personnel of the tribunals, entry and departure of prisoners, and detention matters.140 Other similar international agreements have been reached with other States, concerning enforcement of sentences,141 and with international bodies such as Interpol.142

133 134

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137 138

139 140

141

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(IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002, para. 56; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, paras. 991–999. GA Res. 39/46, annex. GA Res. 3068 (XXVIII). See: Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 70; Krnojelac (IT-97-25), Judgment, 15 March 2002, para. 109, fn. 332. GA Res. 44/25. See: Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, paras. 14–16. Convention for the Protection of Cultural Property in the Event of Armed Conflict, (1956) 249 UNTS 240. See: Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 98; Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 229; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 91–92. UN Doc. A/RES/52/164. See: Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 221. (1968) 754 UNTS 73. See: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 197, fn. 250. See: ICTY Statute, art. 21; ICTR Statute, art. 20; SCSL Statute, art. 17. ‘Agreement Between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia’, UN Doc. S/1994/848, annex; ‘Agreement Between the United Nations and the United Republic of Tanzania Concerning the Headquarters of the International Tribunal for Rwanda’, UN Doc. A/51/399-S/1996/ 778, annex; ‘Headquarters Agreement Between the Republic of Sierra Leone and the Special Court for Sierra Leone’, 21 October 2003. E.g., ‘Agreement Between the Government of the Italian Republic and the United Nations on the Enforcement of Sentences of the International Criminal Tribunal for the Former Yugoslavia’, 6 February 1997. ‘Cooperation Agreement Between the International Police Organisation – Interpol and the Special Court for Sierra Leone’.

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Customary international law Customary law is defined by article 38(b) of the Statute of the International Court of Justice as ‘international custom, as evidence of a general practice accepted as law’.143 One of the great contributions of the tribunals to the progressive development of international law is in their frequent and sophisticated resort to customary international law. There is also some authority for the view that the tribunals are bound by rules of evidence that are part of customary international law, at least to the extent that there is no explicit norm in the RPE.144 In the motion concerning evidentiary immunity or privilege for employees of the International Committee of the Red Cross, an ICTY Trial Chamber held that in the absence of a specific privilege granted by the Rules and the Statute, the judicial inquiry should extend to customary international law.145 Similarly, despite the silence of the RPE on an application by way of habeas corpus, this is a customary legal right available to an accused.146 The existence of the procedure is a fundamental right, set out in various international human rights instruments.147 But when Croatia argued that customary international law protected its national security interests from an ICTY subpoena, the Appeals Chamber answered that ‘although it is true that the rules of customary international law may become relevant where the Statute is silent on a particular point, such as the ‘‘act of State’’ doctrine, there is no need to resort to these rules where the Statute contains an explicit provision on the matter’. The Appeals Chamber said that in the case of national security information, the Statute ‘manifestly derogates from customary international law’.148 143

144

145

146

147

148

Cited in: Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 11. Ibid., para. 539; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 594; Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999, paras. 40–42 (also paras. 74, 76, 80). Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999. Similarly, in Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 209, the ICTY Appeals Chamber identified three sources of law, the Statute, the RPE and customary international law. Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 38; Simic´ et al. (IT-95-9-PT), Separate Opinion of Judge Robinson, 18 October 2000, para. 2; Barayagwiza (ICTR -97-19-AR72), Decision, 3 November 1999, para. 88. Contra: Brðanin (IT-99-36-PT), Decision on Petition for a Writ of Habeas Corpus on Behalf of Radoslav Brðanin, 8 December 1999. Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, art. 8; International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 9(4). Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’), (1955) 213 UNTS 221, art. 5(4). Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 64.

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In the North Sea Continental Shelf cases, the International Court of Justice said that for a customary norm to exist, ‘there must exist extensive and uniform state practice underpinned by opinio juris sive necessitatis’.149 International criminal prosecution based upon custom was recognised at Nuremberg, the International Military Tribunal being authorised under article 6(b) of its Charter to prosecute a non-exhaustive list of ‘violations of the laws or customs of war’. The IMT judgment stated: ‘The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world.’150 Article 3 of the ICTY Statute, in its reference to the ‘laws or customs of war’, resembles article 6(b) of the Nuremberg Charter, and therefore invites a similar extensive application. From the earliest days of the ICTY’s operations, judges have invoked customary law to justify giving article 3 a broad scope. It has been described as a ‘residual clause’151 or ‘umbrella rule’152 encompassing any serious violation of a rule of customary international humanitarian law entailing individual criminal responsibility of the perpetrator. One of the paradoxes of international criminal law, international humanitarian law and international human rights law is that the search for evidence of customary law seems to lead, inexorably, to treaties. This is something of a tautology, except that treaties, even if not ratified by the State in question, often provide the best manifestation of the widespread acceptance of the norm in question. An example of this thinking is the discussion of torture by an ICTY Trial Chamber, in Furundzˇija. It cited the Lieber Code, the Hague Conventions, the Nuremberg Charter, Control Council Law No. 10 and the 1949 Geneva Conventions and their Additional Protocols as evidence of how a customary legal prohibition on torture had ‘crystallised’.153 Similarly, in establishing that article 7(2) of the ICTY Statute, which denies immunity to a head of State or government, was a norm of customary international law, another

149

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152 153

But see Judge Hunt, in Simic´ et al. (IT-95-9-PT), Separate Opinion of Judge David Hunt on Prosecutor’s Motion, 27 July 1999, para. 20: ‘It may be accepted that the Tribunal is bound by customary international law, as is the United Nations itself.’ Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 49, referring to: North Sea Continental Shelf Cases, [1969] ICJ Reports 4, paras. 73–81. France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, at p. 219. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 91; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 68; Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 218. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 133. Ibid., para. 137.

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ICTY Trial Chamber indicated its inclusion in several instruments, including article IV of the Genocide Convention and article 27 of the Rome Statute of the International Criminal Court.154 There is substantial authority for the view that ‘the most important provisions’ of the four Geneva Conventions, as well as the two Additional Protocols, constitute a codification of customary international law.155 Consequently, by and large the tribunals have associated customary international law with codified texts, such as common article 3 of the 1949 Geneva Conventions. The ICTR Appeals Chamber has cited the International Covenant on Civil and Political Rights as well as the relevant regional human rights treaties as ‘persuasive authority and evidence of international custom’.156 The tribunals have also found evidence of customary law in various ‘soft law’ instruments, such as the Draft Code of Crimes prepared by the International Law Commission.157 To support its assertion that the right to a fair trial was part of customary international law, the ICTR Appeals Chamber observed that it was embodied in several international instruments, including common article 3 of the Geneva Conventions.158 Similarly, trial chambers have concluded that the doctrine of command responsibility set out in article 7(3) of the ICTY Statute, and in common article 6(3) of the ICTR and SCSL statutes, is consistent with custom by referring to articles 86 and 87 of Additional Protocol I.159 Recognising that enslavement was a war crime, an ICTY Trial Chamber in Krnojelac said this was confirmed by its inclusion in Additional Protocol II.160 In Erdemovic´, the ICTY Appeals Chamber referred to the Nuremberg Charter as evidence that a crime of conspiracy was part of customary international law, noting that the Charter ‘subsequently obtained recognition as custom’.161 In Tadic´, it observed that article VI(c) of the Nuremberg Charter did not make discriminatory intent an element of all forms of crimes against humanity, concluding that this was therefore not a 154

155 156 157

158 159 160 161

Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 30. See also: Hadzˇihasanovic´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002, paras. 68–84. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 137. Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 209. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 227; Kordic´ et al. (IT95-14/2-PT), Decision on Joint Defence Motion to Dismiss for Lack of Jurisdiction Portions of the Amended Indictment Alleging Failure to Punish Liability, 2 March 1999; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 61; Prosecutor v. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 537; Milosˇevic´ (IT02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 30. Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 51. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 327. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 353. Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 51.

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requirement under customary international law.162 Elsewhere, it bolstered its conclusion that duress was not a defence at customary international law by noting that ‘it is not contained in any international treaty or instrument subsequently recognised to have passed into custom’.163 But treaties do not always codify customary international law, even in the spheres of international humanitarian law and international criminal law. They are the fruit of diplomatic compromise, and may sometimes exceed and often fall short of customary law. For example, the Rome Statute of the International Criminal Court appears to deviate from custom in a number of areas, including its inadequate codification of prohibited weapons164 and its failure to incorporate the prohibition on conspiracy to commit genocide, set out in article III of the 1948 Genocide Convention. Some have charged that the recognition of a defence of property in the case of war crimes, in article 31 (1)(c) of the Rome Statute, is a violation of jus cogens, and consequently null and void, pursuant to the Vienna Convention on the Law of Treaties.165 When Belgium ratified the Rome Statute, it appended a declaration stating that it considered that article 31(1)(c) could only be applied and interpreted ‘having regard to the rules of international humanitarian law which may not be derogated from’. Referring to the definition of crimes against humanity in the Nuremberg Charter, the ICTY Appeals Chamber said ‘both judicial practice and possibly evidence of consistent State practice, including national legislation, would be necessary to show that customary law has deviated from treaty law by adopting a narrower notion of crimes against humanity’.166 It did not find this to be the case. Where customary crimes are not codified in treaties judges have tended to take this as evidence that they are not, in fact, criminal under customary law. In Krnojelac, for example, a Trial Chamber said torture intended to ‘humiliate’ the victim was not within the Tribunal’s subjectmatter jurisdiction because it is not mentioned in any of the principal international instruments prohibiting torture.167 On the other hand, the same Trial Chamber accepted that enslavement was a war crime within the scope of article 3 because of the express prohibition of slavery in Additional Protocol II.168 162 163

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165 166

167 168

Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 289. Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 51. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(b)(xx). Eric David, Principes de droit des conflits arme´s, 2nd edn, Brussels: Bruylant, 1999, p. 693. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 290. Also: Prosecutor v. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 580. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 108. Ibid., para. 353.

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The statutes themselves provide evidence of custom. In one case, an ICTY Trial Chamber said that the inclusion of superior responsibility liability in article 7(3) of the Statute ‘should be read as a reflection of the reasonable and well-supported views of the Security Council and the Secretary-General that this norm formed part of customary international law at the time covered by the mandate of the International Tribunal’.169 But although there is a presumption that provisions of the Statute are consistent with customary law,170 the tribunals have occasionally indicated aspects in which they fall short of evolving norms. For example, the requirement in article 5 of the ICTY Statute that crimes against humanity be ‘committed in armed conflict’ and the requirement in article 4 of the ICTR Statute that crimes against humanity be perpetrated ‘on national, political, ethnic, racial or religious grounds’ are both inconsistent with contemporary interpretations.171 Peremptory or jus cogens norms are rules of customary international law from which no derogation by treaty is permitted. Article 53 of the Vienna Convention on the Law of Treaties declares that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. It continues: ‘For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’172 Defendants have repeatedly argued that various provisions of the statutes of the ad hoc tribunals breach jus cogens norms, specifically the fair trial rights that are codified by instruments like the International Covenant on Civil and Political Rights. As a rule, judges have given such claims short shrift.173 Judgments of the tribunals have occasionally referred to specific norms as being jus cogens, such as the prohibitions of genocide174 or 169

170 171

172 173

174

Hadzˇihasanovic´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002, para. 171. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 296. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 141; Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 305. Vienna Convention on the Law of Treaties, (1979) 1155 UNTS 331, art. 53. For example: Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 74; Krajisnik (IT-00-39-PT), Decision on Motion Challenging Jurisdiction – with reasons, 22 September 2000, para. 14. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 88; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 60, which claims – erroneously – that the International Court of Justice, in its 1951 advisory opinion on the Genocide Convention, ‘placed the crime on the level of jus cogens because of its extreme gravity’; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 541; Stakic´ et al. (IT-97-24-T), Decision

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ˇ elebic´i, the Appeals Chamber ‘note[d] that in human rights torture.175 In C law the violation of rights which have reached the level of jus cogens, such as torture, may constitute international crimes’.176 In one judgment, an ICTY Trial Chamber, presided by Judge Antonio Cassese, said ‘most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens, i.e. of a non-derogable and overriding character’.177 These statements seem intended only to emphasise the seriousness of the crimes, and no particular legal consequences appear to be contemplated. The only occasion where a finding that a norm was jus cogens had a practical consequence was in a ruling acknowledging a right to appeal a contempt conviction made by the Appeals Chamber itself, despite the silence of the Statute and the RPE on this point. The Appeals Chamber noted that there was a right to appeal in article 14(5) of the International Covenant on Civil and Political Rights, which it said was ‘an imperative norm of international law’.178

General principles of law The third principal source of public international law listed in article 38(1) of the Statute of the International Court of Justice is ‘general principles of law recognised by civilised nations’. The language is archaic, and a more acceptable and contemporary formulation of essentially the same concept appears in article 21(1)(c) of the Rome Statute: ‘general principles of law derived by the Court from national laws of legal systems of the world’. Although often confused with customary international law,179 evidence of general principles is not located primarily in international practice but rather in national legal systems. Classic examples of such general principles are the rule of res

175

176 177 178

179

on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 20; Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 680. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 225; Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 155–157; Prosecutor v. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 466. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 172, fn. 225. Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 530. Tadic´ (IT-94-1-A-AR77), Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001. The expression ‘imperative norm’ is a bit of a Gallicism. The French term norme imperative is used in article 53 of the Vienna Convention on the Law of Treaties. The English equivalent is ‘peremptory norm’, i.e., a norm of jus cogens. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 321; Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 93.

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judicata,180 the doctrine of estoppel,181 the rule of good faith and equity,182 and the obligation to make reparation for breach of an engagement.183 As one ICTY Trial Chamber explained, [t]he value of these sources is that they may disclose ‘general concepts and legal institutions’ which, if common to a broad spectrum of national legal systems, disclose an international approach to a legal question which may be considered as an appropriate indicator of the international law on the subject. In considering these national legal systems the Trial Chamber does not conduct a survey of the major legal systems of the world in order to identify a specific legal provision which is adopted by a majority of legal systems but to consider, from an examination of national systems generally, whether it is possible to identify certain basic principles.184

In the words of Lord McNair, ‘it is never a question of importing into international law private law institutions ‘‘lock, stock and barrel’’, ready made and fully equipped with a set of rules. It is rather a question of finding in the private law institutions indications of legal policy and principles appropriate to the solution of the international problem at hand.’185 Occasionally, the tribunals have referred to ‘general principles of criminal law’ or ‘general principles of international criminal law’. For example, General principles of international criminal law, whenever they may be distilled by dint of construction, generalisation or logical inference, may also be relied upon. In addition, it is now clear that to fill possible gaps in international customary and treaty law, international and national criminal courts may draw upon general principles of criminal law as they derive from the convergence of the principal penal systems of the world. Where necessary, the Trial Chamber shall use such principles to fill any lacunae in the Statute of the International Tribunal and in customary law. However, it will always be necessary to bear in mind the dangers of wholesale incorporation of principles of national law into the unique system of international criminal law as applied by the International Tribunal.186

References to ‘general principles’ appear in both the statutes and the RPE. The statutes of the ad hoc tribunals authorise pardon or commutation based on the ‘interests of justice and the general principles of law’.187 ‘General 180 181 182

183 184 185 186 187

EVect of Awards of UN Administrative Tribunal Case, [1954] ICJ Reports 47, at p. 53. Canada v. United States, [1984] ICJ Reports 246, at paras. 129–148. Diversion of Water from the Meuse Case (Netherlands v. Belgium), [1937] PCIJ Reports, Series A/B, No. 70, pp. 76–77. Chorzo´w Factory Case (Merits), [1928] PCIJ Reports, Series A, No. 17, at p. 29. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 439. South-West Africa Case, [1950] ICJ Reports 148. Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 677. ICTY Statute, art. 28; ICTR Statute, art. 27.

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principles’ are mentioned in the RPE’s residual evidentiary clause: ‘In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.’188 The Secretary-General’s report to the Security Council on the draft ICTY Statute expressly acknowledged the role of general principles: ‘The International Tribunal itself will have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon general principles of law recognised by all nations.’189 Judges McDonald and Vohrah of the Appeals Chamber in Erdemovic´ discussed the identification of general principles in some detail: [A]lthough general principles of law are to be derived from existing legal systems, in particular, national systems of law, it is generally accepted that the distillation of a ‘general principle of law recognised by civilised nations’ does not require the comprehensive survey of all legal systems of the world as this would involve a practical impossibility and has never been the practice of the International Court of Justice or other international tribunals which have had recourse to Article 38(1)(c) of the ICJ Statute. Second, it is the view of eminent jurists, including Baron Descamps, the President of the Advisory Committee of Jurists on Article 38(1) (c), that one purpose of this article is to avoid a situation of non-liquet, that is, where an international tribunal is stranded by an absence of applicable legal rules. Third, a ‘general principle’ must not be confused with concrete manifestations of that principle in specific rules. As stated by the Italian–Venezuelan Mixed Claims Commission in the Gentini case: A rule . . . is essentially practical and, moreover, binding; there are rules of art as there are rules of government, while a principle expresses a general truth, which guides our action, serves as a theoretical basis for the various acts of our life, and the application of which to reality produces a given consequence. In light of these considerations, our approach will necessarily not involve a direct comparison of the specific rules of each of the world’s legal systems, but will instead involve a survey of those jurisdictions whose jurisprudence is, as a practical matter, accessible to us in an eVort to discern a general trend, policy or principle underlying the concrete rules of that jurisdiction which comports with the object and purpose of the establishment of the International Tribunal.190 188 189

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ICTY RPE, Rule 89(B); ICTR RPE, Rule 89(B); SCSL RPE, Rule 89(B). ‘Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704. Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 57 (references omitted).

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Judge Cassese, in his separate and dissenting opinion, agreed that ‘no universal acceptance of a particular principle by every nation within the main systems of law is necessary’ before a general principle is admitted.191 He cited the post-Second World War Hostages case, where it was held that if a principle ‘is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified’.192 Judges McDonald, Vohrah and Cassese were in general agreement about the methodology, but they reached quite diVerent conclusions about the content of general principles of law concerning the defence of duress. While Judges McDonald and Vohrah concluded it was not available to a charge of crimes against humanity, Judge Cassese reached the opposite conclusion. In another case, an ICTY Trial Chamber referred to a post-Second World War case in ruling that ‘under general principles of law, an accused does not exculpate himself from a crime by showing that another has committed a similar crime, either before or after the commission of the crime by the accused’.193 In the area of criminal law, ‘general principles’ have even been invoked with respect to the crimes themselves. Thus, the ICTY Appeals Chamber in the ˇ elebic´i case said it was ‘undeniable that acts such as murder, torture, rape and C inhuman treatment are criminal according to ‘‘general principles of law’’ recognised by all legal systems’.194 That substantive oVences fall under the rubric of general principles is confirmed in article 15(2) of the International Covenant on Civil and Political Rights, which excepts from the nullum crimen rule ‘punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations’.195 In defining the crime of rape, Trial Chambers have looked to general principles, although, again, they have not always come to the same conclusion.196 Often, recourse to general principles focuses on procedural and evidentiary matters. The concept of res judicata was recognised as a general principle of 191

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Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 25. United States v. Wilhelm List et al. (‘Hostage’ case), (1948) 8 LRTWC 34, 11 TWC 757, p. 49 (LRTWC). Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 516, citing United States of America v. von Leeb et al. (‘High Command trial’), (1948) 12 LRTWC 1, at p. 64 (United States Military Tribunal). Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 180. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 15(2). Also: Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’), (1955) 213 UNTS 221, art. 7(2). No such exception exists in the American Convention on Human Rights, (1978) 1144 UNTS 123. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 177; Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 439.

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law in one opinion.197 Similarly, the maxim audi alteram partem, requiring that the court hear both sides in a dispute, has been described as a general principle of law.198 In dubio pro reo, by which in criminal matters the version favourable to the accused prevails in case of doubt, has also been recognised.199 The ICTY Appeals Chamber has ruled that ‘general principles of law recognised an adjudicative privilege or judicial immunity from compulsion to testify in relation to judicial deliberation and certain other related matters’.200 Reference has also been made to general principles in developing the law concerning contempt of court.201 An ICTR Trial Chamber held that under general principles of law, ‘a person who is no longer under indictment may not be deprived of his or her freedom and must therefore be released immediately if he or she is not held for any other cause’.202 Dealing with a motion for a psychiatric examination in order to determine fitness to stand trial, an ICTY Trial Chamber found ‘material assistance’ in a number of the procedural rights provisions of the Statute, as well as in the reference to ‘general principles of law’ in the Report of the Secretary-General that accompanied the draft statute.203 But sometimes, judgments have concluded that there is insuYcient consensus in national legal sources, and that a general principle cannot be identified.204 Certainly, it is not always a simple matter to extract general principles from criminal justice systems, with their widely diVering approaches, particularly in the field of procedure.205 Faced with disagreement among his colleagues on whether general principles supported 197

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Barayagwiza (ICTR-97-19-AR72), Declaration of Judge Rafael Nieto-Navia, 31 March 2000; Ntakirutimana et al. (ICTR-96-10-T and ICTR-96-17-T), Decision on the Prosecutor’s Motion for Judicial Notice of Adjudicated Facts, 22 November 2001, para. 42; Prosecutor v. Nyiramasuhuko (ICTR-98-42-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002, para. 23. Jelisic´ (IT-95-10-A), Separate Opinion of Judge Nieto-Navia, 5 July 2001, para. 4; Miscellaneous – Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 319; Hadzˇihasanovic´ et al. (IT-01-47-AR72), Partial Dissenting Opinion of Judge Shahabuddeen, 16 July 2003, para. 12; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 259; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 753. Delalic´ et al. (IT-96-21-A), Order on Motion of the Appellant, Esad Landzˇo, for Permission to Obtain and Adduce Further Evidence on Appeal, 7 December 1999. Tadic´ (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000. Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999. Strugar (IT-01-42-T), Decision re the Defence Motion to Terminate Proceedings, 26 May 2004. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 225, para. 25. Simic´ et al. (IT-95-9-PT), Separate Opinion of Judge David Hunt on Prosecutor’s Motion, 27 July 1999, para. 24.

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the admissibility of a defence of duress, Judge Li said that ‘[n]ational laws and practices of various States on this question are also divergent, so that no general principle of law recognised by civilised nations can be deduced from them’.206

Subsidiary sources: judicial decisions and academic writing Judicial decisions and ‘the teachings of the most highly qualified publicists of the various nations’ are the two subsidiary means for the determination of rules of public international law set out in article 38(1)(d) of the Statute of the International Court of Justice.207 Here the tribunals depart from this general statement of the sources of public international law because they treat the rulings of their own Appeals Chambers as authoritative, and not merely ‘subsidiary’. The statutes do not provide an indication of the role of precedent in the workings of the tribunals, although this might be considered as implicit in the existence of a right to appeal verdicts of the Trial Chambers.208 However, it is now well accepted that the Trial Chambers are bound by the ratio decidendi of rulings of the Appeals Chamber.209 Obviously, authoritative rulings bind lower courts on issues of law, but not issues of fact.210 Judicial decisions may also be cited as authority for the existence of a customary norm.211 206

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Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, 7 October 1997, para. 3. Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 540. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 99–100. Also Aleksovski (IT-95-14/1-A), Declaration of Judge David Hunt, 24 March 2000. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 112–113; Kordic´ et al. (IT95-14/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 12; Kordic´ et al. (IT-95-14/2-AR108bis), Decision on the Request of the Republic of Croatia for Review of a Binding Order, 9 September 1999, para. 33; Brðanin et al. (IT-99-36-PT), Decision on Application by Momir Talic´ for the Disqualification and Withdrawal of a Judge, 18 May 2000. On the distinction between ratio decidendi and obiter dictum, see: Simic´ et al. (IT-95-9-AR73.6 & AR73.7), Separate Opinion of Judge David Hunt, 23 May 2003. Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 43; Simic´ et al. (IT-95-9-PT), Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999; Simic´ et al. (IT-95-9-PT), Decision on (1) Application by Stevan Todorovic´ to Reopen the Decision of 27 July 1999, (2) Motion by ICRC to Re-open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 February 2000. Erdemovic´ (IT-96-22-A), Judgment, 7 October 1997, paras. 41–45; Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 255–270; Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras. 32–33.

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Most Trial Chamber judgments now begin with a summary of the applicable legal principles, abundantly referenced to decisions of the Appeals Chambers. However, Trial Chambers are not bound by decisions of other Trial Chambers, either of the same Tribunal or of one of the other two tribunals, although decisions on relevant matters are consulted and viewed as ‘persuasive’212 or ‘instructive’.213 Occasionally, one Trial Chamber will say bluntly that it is in disagreement with an approach taken by another Trial Chamber.214 A unique provision in the SCSL Statute declares that ‘[t]he judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda’.215 But an SCSL Trial Chamber has cautioned that the expression ‘shall be guided by’ does not mandate ‘a slavish and uncritical emulation either precedentially or persuasively, of the principles and doctrines enunciated by our sister tribunals’.216 The Appeals Chambers themselves should also follow their own previous decisions, ‘in the interests of certainty and predictability’, although remaining ‘free to depart from them for cogent reasons in the interests of justice’.217 In Aleksovski, the ICTY Appeals Chamber noted that while stare decisis (‘binding precedent’) is a concept known to common law courts, and not those of other legal traditions, including international tribunals, as a matter of practice it is followed by the courts of continental legal traditions as well as the International Court of Justice and the European Court of Human Rights. ‘The principles which underpin the general trend in both the common law and civil law systems, whereby the highest courts, whether as a matter of doctrine or of practice, will normally follow their previous decisions and will only depart from them in exceptional circumstances, are the need for consistency, certainty and predictability’, wrote the ICTY Appeals Chamber.218 The applicable law of the three tribunals diVers slightly, given what are generally minor discrepancies between the three statutes and the versions of the RPE. But where the legal norm is the same, the three tribunals have not

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Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 1114; Bagambiki et al. (ICTR-97-36-I), Decision on the Defence Motion on Defects in the Form of the Indictment, 24 September 1998, para. 7; Kovacˇevic´ (IT-97-24-PT), Decision on Defence Motion to Strike Counts 4, 5, 8, 9, 10, 11, 13 and 15, 6 July 1998. Kvocˇka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, para. 32. Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 719. SCSL Statute, art. 20(3). Sesay (SCSL-03-05-PT), Decision, 23 May 2003, para. 11. Also: Gbao (SCSL-03-09-PT), Decision, 10 October 2003, para. 31; Norman et al. (SCSL-04-14-AR73), Decision on Amendment of the Consolidated Indictment, 17 May 2005, para. 46. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 104–110. Ibid.

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taken diVerent paths. Legal consistency amongst the ICTYand ICTR is ensured by the existence of what amounts to a common Appeals Chamber. Indeed, this was one of the reasons why the Security Council decided to link the two tribunals in this way. A similar connection between the SCSL and the ICTR was initially considered but later rejected.219 The Secretary-General said that: While in theory the establishment of an overarching Appeals Chamber as the ultimate authority in matters of interpretation and application of international humanitarian law oVers a guarantee of developing a coherent body of law, in practice, the same result may be achieved by linking the jurisprudence of the Special Court to that of the International Tribunals, without imposing on the shared Appeals Chamber the financial and administrative constraints of a formal institutional link.

This explains why the Secretary-General proposed that the SCSL Appeals Chamber would be ‘guided’ by the decisions of the ICTY and ICTR Appeals Chambers.220 An example of the synergy between the diVerent tribunals can be seen in their eVorts to define the crime of rape. In the first conviction for rape by either tribunal, the ICTR proposed a definition221 that was then followed by an ICTY Trial Chamber222 as well as other ICTR Trial Chambers.223 Subsequently, however, other ICTY Trial Chambers took a diVerent approach,224 and this was ultimately confirmed by the ICTY Appeals Chamber.225 As a result, ICTR Trial Chambers abandoned their earlier case law and followed the approach of the ICTY Appeals Chamber, describing the latter as being ‘of persuasive authority’.226 Development of the joint criminal enterprise doctrine of criminal participation provides another example. This was first set out in detail by the ICTY Appeals Chamber, which found it to be implied within the

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‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, paras. 42–46. Ibid., para. 41. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 597–598. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 477–479. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 226. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 181, 185; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 412. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 128. Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 915; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 357, paras. 345–346. However, in a judgment issued after the ICTY Appeals Chamber had, in eVect, rejected the Akayesu definition, an ICTR Trial Chamber that included Judge Pillay, who had been a member of the Akayesu bench, ignored Kunarac and simply reaYrmed the Akayesu definition: Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 456.

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terms of article 7(1) of the Statute.227 For several years, the ICTR Trial Chambers did not rely upon the doctrine, although article 6(1) of the ICTR Statute has essentially identical terms. Finally, the ICTR Appeals Chamber ruled: ‘Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute.’228 The tribunals have also drawn on a broad range of other judicial authorities, including judgments of the European Court of Human Rights, the United Nations Human Rights Committee, the post-Second World War tribunals including the International Military Tribunal and the International Military Tribunal for the Far East, and the world’s major constitutional courts, including the House of Lords, the Supreme Courts of Canada and the United States and the French Conseil constitutionnel. Here they are more comfortably within the parameters of article 38(1)(d) of the Statute of the International Court of Justice, using the decisions not as binding precedent but as persuasive and compelling authorities, deserving of serious consideration. Justifying reliance on judgments of other tribunals in the area of public international law, Judge Shahabuddeen, himself a former member of the ICJ, observed that ‘so far as international law is concerned, the operation of the desiderata of consistency, stability, and predictability does not stop at the frontiers of the Tribunal . . . The Appeals Chamber cannot behave as if the general state of the law in the international community whose interests it serves is none of its concern.’229 The ICTY Appeals Chamber has said it will take into consideration ‘other decisions of international courts’, although it added that it might not come to the same conclusion, and that it was ‘an autonomous international judicial body’.230 But cautionary messages have also been sounded. According to one ICTY Trial Chamber, The Tribunal is not bound by precedents established by other international criminal courts such as the Nuremberg or Tokyo tribunals, let alone by cases brought before national courts adjudicating international crimes. Similarly, the Tribunal cannot rely on a set of cases, let alone on a single precedent, as suYcient to establish a principle of law: the authority of precedents (auctoritas rerum similiter judicatarum) can only consist in evincing the possible existence of an international rule. More specifically, precedents may constitute evidence of a customary rule in that they are

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Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 193. Ibid., para. 468. Semanza (ICTR-97-20-A), Separate Opinion of Judge Shahabuddeen, 31 May 2000, para. 25. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 24.

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indicative of the existence of opinio iuris sive necessitatis and international practice on a certain matter, or else they may be indicative of the emergence of a general principle of international law. Alternatively, precedents may bear persuasive authority concerning the existence of a rule or principle, i.e. they may persuade the Tribunal that the decision taken on a prior occasion propounded the correct interpretation of existing law. Plainly, in this case prior judicial decisions may persuade the court that they took the correct approach, but they do not compel this conclusion by the sheer force of their precedential weight. Thus, it can be said that the Justinian maxim whereby courts must adjudicate on the strength of the law, not of cases (non exemplis, sed legibus iudicandum est) also applies to the Tribunal as to other international criminal courts.231

The Trial Chamber added that there should be ‘a stricter level of scrutiny to national decisions than to international judgments, as the latter are at least based on the same corpus of law as that applied by international courts, whereas the former tend to apply national law, or primarily that law, or else interpret international rules through the prism of national legislation’.232 The International Court of Justice is described in the Charter of the United Nations as the organisation’s ‘principal judicial organ’.233 It has been argued that there is an implied hierarchy, and that as ad hoc United Nations tribunals the ICTY, ICTR and SCSL are bound to comply with legal determinations of the International Court of Justice. Early on, however, the ICTYopenly departed from an important ICJ precedent.234 It rejected the idea of a hierarchical relationship with the ICJ.235 There is also the potential for conflicting rulings between the ICJ and the ICTY not only on matters of law but on factual issues. For example, the ICTY Appeals Chamber has determined that genocide was committed in the former Yugoslavia,236 while the same question is pending, but not yet adjudicated, before the ICJ in two cases, filed by Bosnia and Herzegovina237 and by

231 232 233 234 235

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Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 540. Ibid., para. 542. Charter of the United Nations, art. 92. See below at pp. 243–245. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 24. See: Theodor Meron, ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout’, (1998) 92 American Journal of International Law 236; Mark A. Drumbl, ‘Looking Up, Down and Across: The ICTY’s Place in the International Legal Order’, (2003) 37 New England Law Review 1037; The´odore Christakis, ‘Les relations entre la CIJ et le Tribunal pe´nal international pour l’ex-Yougoslavie: les premie`res fissures a` l’unite´ du droit?’, (1996) 1 L’observateur des Nations Unies 45. Krstic´ (IT-98-33-A), Judgment, 19 April 2004. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Application, 20 March 1993. See: Peter H. F. Bekker and Paul C. Szasz, ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide’, (1997) 91 American Journal of

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Croatia.238 A defence argument that the ICTY should suspend determination of an issue because the same or a similar matter is before the ICJ was dismissed.239 As for the other subsidiary source, ‘the teachings of the most highly qualified publicists of the various nations’, rather like the International Court of Justice the tribunals do not cite academic writing very frequently, although this is more common in individual or dissenting opinions. For example, in 2004, the ICTY and ICTR Appeals Chambers issued six major and lengthy judgments on appeal from convictions, consisting of somewhat more than 1,000 pages in total. Only sixteen diVerent academic authorities are cited in this corpus of jurisprudence.240 Sometimes a list of academic writing consulted by the Chamber is produced at the end of the judgment, but it invariably consists of a handful of works. Many of the citations are not to ‘the teachings’ at all, but merely assertions of facts whose authority can be found in such volumes as the Commentaries on the Geneva Conventions. Several of the judges can themselves be described as ‘highly qualified publicists’. There is no doubt, however, that even if reference to academic sources is not that common, the judges and their assistants consult these authorities in the preparation of their opinions.

Inherent or implied powers The tribunals consider that they also have inherent powers. As Judge Shahabuddeen has explained, ‘there may be need to take account of the inherent competence of a judicial body, whether civil or criminal, to regulate its own

238

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International Law 121; Ben GaYkin, ‘The International Court of Justice and the Crisis in the Balkans: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), 32 ILM 1599 (1993)’, (1995) 17 Sydney Law Review 458; Christine Gray, ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))’, (1994) 43 International and Comparative Law Quarterly 704; Sandrine Maljean-Dubois, ‘L’aVaire relative a` l’application de la Convention pour la pre´vention et la re´pression du crime de ge´nocide (Bosnie-Herze´govine c. Yougoslavie), Arreˆt du 11 juillet 1996, exceptions pre´liminaires’, (1996) 42 Annuaire franc¸ais de droit international 357. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia), Application, 2 July 1999. Kvocˇka et al. (IT-98-30/1-T), Decision on the Defence ‘Motion Regarding Concurrent Procedures Before International Criminal Tribunal for the Former Yugoslavia and International Court of Justice on the Same Questions’, 5 December 2000. Vasiljevic´ (IT-98-32-A), Separate and Dissenting Opinion of Judge Shahabuddeen, 25 February 2004: no references; Krstic´ (IT-98-33-A), Judgment, 19 April 2004: six references; Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004: six references; Blasˇkic´ (IT-9514-A), Judgment, 29 July 2004: two references; Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004: no references; Kordic´ et al. (IT-95-14/ 2-A), Judgment, 17 December 2004: five references.

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procedure in the event of silence in the written rules, so as to assure the exercise of such jurisdiction as it has, and to fulfil itself, properly and eVectively, as a court of law. Without that residual competence, no court can function completely.’241 According to the ICTY Appeals Chamber, ‘the International Tribunal must possess the power to make all those judicial determinations that are necessary for the exercise of its primary jurisdiction. This inherent power inures to the benefit of the International Tribunal in order that its basic judicial function may be fully discharged and its judicial role safeguarded.’242 Some of this authority is perhaps better described as implied, rather than inherent.243 This is the case when the power is derived from provisions in the statutes or the RPE. For example, Judge Hunt referred to the ‘inherent power’ of the Tribunal, ‘deriving from its judicial function, to control its proceedings in such a way as to ensure that justice is done’. He was referring to matters of practice that arise in the course of proceedings whose primary purpose is to ensure that trials and appeals proceed fairly and expeditiously.244 The statutes give the tribunals the power to devise their own rules of procedure and evidence. Therefore, if a power is derived from Rule 54 (‘At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial’),245 it is implied rather than inherent.246 In an application from family members of a suspect whose assets had been frozen in France, the ICTR Appeals Chamber said that despite the silence of the Statute and the RPE, where action was taken by the Prosecutor acting pursuant to a provision of the RPE, ‘the Judges, through the appropriate mechanism of a Trial Chamber, retain a responsibility to review the working of such action, particularly where hardship is alleged by a non-party’.247

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243 244 245

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Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, p. 17; Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999. Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 33. Ibid., para. 25, fn. 27. Delalic´ et al. (IT-96-21-A), Separate Opinion of Judge Hunt, 22 April 1999, para. 3. ICTY RPE, Rule 54; ICTR RPE, Rule 54; SCSL RPE, Rule 54 (the SCSL RPE replace the Latin term proprio motu with ‘of its own motion’). On the distinction, see: Michael Bohlander, ‘International Criminal Tribunals and Their Power to Punish Contempt and False Testimony’, (2001) 12 Criminal Law Forum 91. Miscellaneous – Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002. But see: Miscellaneous – Kabuga Family-01-A, Declaration of Judge Shahabuddeen, 22 November 2002.

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The ICTY Appeals Chamber in Tadic´ suggested a distinction between inherent and implied powers. It said that a Trial Chamber could order the disclosure of defence witness statements after examination-in-chief of the witness. According to the Appeals Chamber, [r]ather than deriving from the sweeping provisions of Sub-rule 89(B), this power is inherent in the jurisdiction of the International Tribunal, as it is within the jurisdiction of any criminal court, national or international. In other words, this is one of those powers mentioned by the Appeals Chamber in the Blasˇkic´ (Subpoena) decision which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice.248

An example of a truly inherent power is the authority to punish contempt of court and false testimony.249 The statutes give the tribunals jurisdiction over serious violations of international humanitarian law,250 and do not provide for any power to create new oVences, such as contempt of court or perjury.251 Rule 77(E) refers to ‘inherent powers’: ‘Nothing in this Rule aVects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.’252 According to the ICTY Appeals Chamber:

248 249

250 251

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Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 318–326. Delalic´ et al. (IT-96-21-A), Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic´ and Zdravko Mucic´, 11 November 1996, paras. 26–28; Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 59; Tadic´ (IT-94-1-AR77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, para. 26; Aleksovski, (IT-95-14/ 1-AR77), Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001, para. 30; Simic´ et al. (IT-95-9-PT), Judgment on Allegations of Contempt against an Accused and his Counsel, 30 June 2000; Brðanin (IT-99-36-R77), Concerning Allegations Against Milka Maglov, Decision on Motion for Acquittal Pursuant to Rule 98bis, 19 March 2004, para. 15. As well as, in the case of the SCSL, certain serious crimes under national law. See: Andre´ Klip, ‘Witnesses before the International Criminal Tribunal for the Former Yugoslavia’, (1996) 67 Revue internationale de droit pe´nal 267, at pp. 276–277; Andre´ Klip, ‘Tadic´, Decisions Relating to the False Testimony of Opacic’, in Andre´ Klip and Go¨ran Sluiter, eds., Annotated Leading Cases of International Tribunals, vol. I, Antwerp: Intersentia, 1999, pp. 214–216, at p. 214; William A. Schabas, ‘Le Re`glement de preuve et de proce´dure du Tribunal international charge´ de poursuivre les personnes pre´sume´es responsables de violations graves du droit international humanitaire commises sur le territoire de l’ex-Yougoslavie depuis 1991’, (1993–1994) 8 Revue que´be´coise de droit international 112. ICTY RPE, Rule 77(E); ICTR RPE, Rule 77(A); SCSL RPE, Rule 77(A).

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The Tribunal does, however, possess an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded. As an international criminal court, the Tribunal must therefore possess the inherent power to deal with conduct which interferes with its administration of justice. The content of that inherent power may be discerned by reference to the usual sources of international law.253

The ICTY Appeals Chamber has ruled that the Tribunal does not have the inherent power to take enforcement measures against States.254 However, the Tribunal ‘is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules. It also has the power to report this judicial finding to the Security Council.’255 Inherent powers have been invoked as justification for a departure from the RPE. For example, an ICTY Trial Chamber considered it could make an exception to the rule that the only persons who may appear before it are those who meet the requirements that must ordinarily be fulfilled in order to be admitted as counsel before the Tribunal.256 Similarly, another Trial Chamber said its inherent power to control proceedings was adequate foundation to refuse audience to counsel, despite the fact he was qualified under Rule 44(A) of the RPE, because he was ‘for other reasons not a fit and proper person to appear before the Tribunal’.257 However, according to the ICTY Appeals Chamber, ‘[t]he only inherent power that a Trial Chamber has is to ensure that the trial of an accused is fair; it cannot appropriate for itself a power which is conferred elsewhere’.258 The Appeals Chamber was considering the powers of the Trial Chamber to review a decision by the Registrar refusing to withdraw counsel who had been assigned to the accused. The Appeals Chamber took the view that unless the application, which was normally within the

253

254

255 256

257

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Tadic´ (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, para. 13 (references omitted). Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 25. Ibid., para. 33. Kupresˇkic´ et al. (IT-95-16-T), Decision on the Request of 24 June 1999 by Counsel for the Accused to Allow Mr Mirko Vrdoljak to Examine the Defence Witnesses, 25 June 1999. Kunarac et al. (IT-96-23-PT and IT-96-23/1-PT), Decision on Request of the Accused Radomir Kovac to Allow Mr Milan Vujin to Appear as a Co-Counsel Acting Pro Bono, 14 March 2000, para. 13. Blagojevic´ (IT-02-60-AR73.4), Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic´ to Replace his Defence Team, 7 November 2003, para. 7.

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competence of the Registrar, raised issues of fairness of the trial, the Trial Chamber should not determine the matter.259 The Appeals Chamber has confirmed that Trial Chambers have the inherent power to recommend a minimum sentence, subject to the requirements of fundamental fairness.260 Another example in sentencing of the application of inherent powers is the early release of a convicted person who has not yet been sent to a national prison to begin serving a sentence. The situation can arise when a sentence imposed at trial is reduced on appeal, so that the time actually served in preventive detention in the Tribunal’s own detention unit is such a substantial proportion of the final sentence imposed that it is fair and just to release the prisoner immediately. Were the prisoner to be transferred to a national prison, he or she would be subject to immediate release. In such cases, the President of the ICTY has relied on inherent powers and authorised early release.261

Human rights law Contemporary human rights law is derived from all of the sources of public international law, and principally from treaty law and custom. Although dealt with under those headings previously in this chapter, certain special remarks are in order. The statutes refer to international human rights law when they require that judges be selected for their experience in ‘international law, including international humanitarian law and human rights law’.262 The tribunals are often thought of within the rubric of ‘international humanitarian law’, in part because of the reference to this concept in the statutes themselves. But it is also reasonable to view them as being bodies for the enforcement of international human rights law. Although the war crimes provisions clearly belong to international humanitarian law, this is not nearly as evident with respect to genocide and crimes against humanity, especially once it is acknowledged that the latter two crimes can be committed in peacetime. The etymology of crimes against humanity associates it with human rights law. As for genocide, it is a concept intended to develop an early generation of

259

260 261

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Milosˇevic´ (IT-02-54-T), Decision on Assigned Counsel’s Motion for Withdrawal, 7 December 2004, para. 10. Tadic´ (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000. For the early release of Blasˇkic´, whose sentence was reduced from forty-five years to nine years, of which he had served eight, see: Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 230. Also: Sikirica et al. (IT-95-8-S), Order of the President on the Early Release of Dragan Kolundzija, 5 December 2001. ICTY Statute, art. 13(1); ICTR Statute, art. 12(1); SCSL Statute, art. 13(2). The SCSL Statute also refers to ‘human rights standards’ in art. 7(1), concerning juvenile oVenders.

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human rights instruments, the minorities treaties, as judgments of the tribunals have held.263 The applicable law provision in the Rome Statute makes direct reference to international human rights law: ‘The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.’264 Nevertheless, there is perhaps an inevitable tension between the human rights law dimension of the tribunals and their inherently repressive nature. Traditionally, human rights law has been principally concerned with the rights of the accused. All three statutes contain a provision entitled ‘Rights of the accused’ that is drawn from article 14 of the International Covenant on Civil and Political Rights.265 In one of the first motions to be adjudicated by the ICTY, a defence lawyer contested the Prosecutor’s application for witness anonymity on the basis of rather unequivocal precedents from the European Court of Human Rights. The Trial Chamber said that the human rights rulings of the European Court were meant to apply to ‘ordinary criminal’ jurisdictions, whereas the ICTY was, ‘in certain respects, comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence’.266 This unfortunate statement is, thankfully, rather isolated. An example of the positive and constructive role that international human rights law may play in the work of the tribunals is provided by Judge Pocar’s dissenting opinion in Rutaganda. Judge Pocar is himself a man of impeccable human rights credentials, having been elected to the ICTY after serving for more than a decade on the United Nations Human Rights Committee, a body that he also chaired. Judge Pocar argued that the ICTY Statute should be interpreted in accordance with general international human rights law, and more specifically the International Covenant on Civil and Political Rights. Article 14(5) of the Covenant, which was not reproduced in the ICTY Statute, recognises the right to have a conviction and sentence reviewed by a higher tribunal. Judge Pocar was concerned that this would be denied if the Appeals Chamber reversed an acquittal, rather than refer the case back to a Trial Chamber for a new determination. He wrote: Furthermore, the ICCPR [International Covenant on Civil and Political Rights] is not only a treaty between States which have ratified it, but, like 263 264 265 266

Krstic´ (IT-98-33-T), Judgment, 2 August 2001, paras. 555–556. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 21(3). ICTY Statute, art. 21; ICTR Statute, art. 20; SCSL Statute, art. 17. Tadic´ (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 28.

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other human rights treaties, also a document that was adopted – unanimously – as a resolution by the General Assembly. As such, it also expresses the view of the General Assembly as to the principles enshrined therein. It would therefore have to be assumed that the Security Council, as a UN body, would act in compliance with that declaration of principles of the General Assembly. Only a clear-cut decision to depart from it would lead to a diVerent conclusion. But in this case, as mentioned, the intention of the Security Council to comply with the ICCPR was explicitly demonstrated through its approval of the Report of the Secretary General. It does not matter, in this context, that the principle contained in Article 14(5) has been subjected to reservations by a few States which have ratified the ICCPR – out of 149 State parties, only about 10 have expressed reservations, and some of these reservations have a diVerent scope as compared with the case at issue – or that other regional legal instruments such as the Seventh Protocol to the European Convention on Human Rights may have taken a diVerent approach.267

Human rights law is concerned essentially with the procedure of criminal justice, but it is not without relevance to substantive criminal law. The tribunals have referred to human rights law in support of the ‘universal criminalisation of rape’, noting ‘the recognition of the seriousness of the oVence in the jurisprudence of international bodies, including the European Commission on Human Rights and the Inter-American Commission on Human Rights’.268 In Erdemovic´, Judge Cassese said that ‘as the right to life is the most fundamental human right, the rule demands that the general requirements for duress be applied particularly strictly in the case of killing of innocent persons’.269

National criminal law National criminal law is a distinct source of applicable law, closely related to but autonomous from ‘general principles of law’. In his dissent in Erdemovic´, Judge Cassese said that ‘[r]eliance on legal notions or concepts as laid down in a national legal system can only be justified if international rules make explicit reference to national law or if such reference is necessarily implied by the very content and nature of the concept’.270 National criminal law is invoked very much in the sense of comparative criminal law, and in this respect the ad hoc tribunals are not very diVerent from those national courts

267 268 269

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Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 195. Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 45 (emphasis in the original). Ibid. See also: Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 178.

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that consult the case law of other jurisdictions for guidance and inspiration on diYcult questions.271 Along these lines, the ICTY Appeals Chamber referred to national laws concerning common purpose complicity in order to show that the concept had ‘an underpinning in many national systems’.272 ˇ erkez, an ICTY Trial Chamber considered the various In Kordic´ and C domestic law equivalents of the motion to dismiss that is traditionally filed at the conclusion of the case for the prosecution, in interpreting the scope of Rule 98 bis of the RPE. Noting that Rule 98bis proceedings bear a close resemblance to applications for no case to answer in common law jurisdictions, the Trial Chamber said its determination might ‘be influenced by features of the regime in domestic jurisdictions with similar proceedings, but will not be controlled by it; and therefore a proper construction of the Rule may show a modification of some of those features in the transition from its domestic berth’.273 National law, including the case law of national criminal courts, is also evidence of State practice, and may consequently be relevant to the identification of customary legal norms. The SCSL Statute incorporates some provisions of Sierra Leonean criminal law concerning sexual oVences against children,274 and directs the judges to provisions of the country’s law of criminal procedure as a secondary source of legal rules.275 The Statute specifies that in the interpretation and application of the laws of Sierra Leone, the judges of the Appeals Chamber ‘shall be guided by the decisions of the Supreme Court of Sierra Leone’.276 The penalty provisions of the statutes also invite recourse to national law. The ICTY and ICTR are specifically instructed to ‘have recourse to the general practice regarding prison sentences’ applicable to the relevant national courts in the territory where the crime was committed at the time of the oVence.277 In a slight variant on this provision, the SCSL is directed to ‘have recourse to the practice regarding prison sentences in the International Criminal Tribunal for Rwanda and the national courts of Sierra Leone’.278

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272 273

274 275 276 277 278

See, e.g., a decision of the United States Supreme Court: Lawrence v. Texas, 539 US 558 (2003), p. 16; Roper v. Simmons, 125 SCt 1183 (2005). Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 225. Proseuctor v. Kordic´ et al. (IT-95-14/2-PT), Decision on Defence Motions for Judgment of Acquittal, 6 April 2000, para. 9. These views were endorsed by the Appeals Chamber: Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 33; Galic´ (IT-98-29-T), Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic´, 3 October 2002. SCSL Statute, art. 5. Ibid., art. 14(2). Ibid., art. 20(3). ICTY Statute, art. 24(1); ICTR Statute, art. 23(1). SCSL Statute, art. 19(1).

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Public policy Public policy has very occasionally been invoked in the determination of legal rules applicable to the tribunals.279 For example, when Judges McDonald and Vohrah of the ICTYAppeals Chamber could not identify a norm concerning the defence of duress in public international law, they endeavoured to devise one taking into account public policy considerations, and more specifically a concern that allowing a defence of duress might contribute to the commission of atrocity. They explained that they were not suggesting that policy concerns dominate the law, ‘but rather, where appropriate, are given due consideration in the determination of a case’.280 Judge Li seemed to take a similar approach when, concluding that there was a rule allowing duress, but an exception in the case of heinous crimes, he said: ‘In my view, both the rule and the exception are reasonable and sound, and should be applied by this International Tribunal.’ He added: ‘[T]his International Tribunal cannot but opt for the solution best suited for the protection of innocent persons.’281 Judge Cassese disagreed, arguing that public policy considerations are ‘extraneous to the task of our Tribunal’.282 He considered that using public policy runs against the maxim nullum crimen sine lege, and moreover is ultra vires the Tribunal.283 Another Trial Chamber referred to considerations of public policy in ruling on issues of privilege.284 Although specific reference to ‘public policy’ is rare, many rulings take the concept into account. For example, when Judge Robertson of the SCSL determined that a detained witness could testify before the Truth and Reconciliation Commission in a closed hearing, he was balancing a number of relevant concerns of a public policy nature, including the possibility that the prisoner in question might seek to use a public hearing in order to create political turmoil in the country.285

279

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281 282

283 284

285

Mohamed Shahabuddeen, ‘Policy-Oriented Law in the International Criminal Tribunal for the Former Yugoslavia’, in L. C. Vohrah et al., eds., Man’s Inhumanity to Man, The Hague: Kluwer Law International, 2003, pp. 889–898. Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 78. Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, para. 8. Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 11(ii) (emphasis in the original). Ibid., para. 50. Delalic´ et al. (IT-96-21-T), Decision on the Motion ex parte by the Defence of Zdravko Mucic´ Concerning the Issue of a Subpoena to an Interpreter, 8 July 1997, para. 18. Norman (SCSL-03-08-PT), Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone and Chief Samuel Hinga Norman JP Against the Decision of His Lordship, Mr Justice Bankole Thompson, Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing With Chief Samuel Hinga Norman JP, 28 November 2003.

PA R T I I Jurisdiction

4 Territorial, personal and temporal jurisdiction

Article 1 of each of the three statutes consists of a provision entitled ‘Competence of the International Tribunal’. This would seem to be a Gallicism; in French, the word jurisdiction is translated as compe´tence, and this is of course also an English word, but with a somewhat diVerent meaning. Jurisdiction is the better word. The three provisions state: ‘The [tribunal] shall have the power . . .’ What follows is a provision outlining the territorial and temporal jurisdiction of the tribunal, and then a series of articles defining the crimes over which the tribunals have jurisdiction. Jurisdiction has been defined as ‘the power of a court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties’.1 The three tribunals cannot prosecute cases involving individuals, territories and crimes that are not either explicitly or implicitly within their powers, that is, their jurisdiction.

Primacy Before addressing the specific issues concerning territorial, personal and temporal jurisdiction, some attention must be paid to potential conflicts of jurisdiction and the correct approach to their resolution. All three statutes declare, in provisions entitled ‘concurrent jurisdiction’, that they ‘shall have primacy’ over national courts.2 The ICTY and ICTR statutes refer to concurrent jurisdiction, but they do not say with whom. The SCSL Statute speaks of concurrent jurisdiction with ‘the national courts of Sierra Leone’. The ICTY Statute says it ‘shall have primacy over national courts’. The ICTR Statute is slightly more precise, speaking of ‘primacy over the national courts of all States’. The SCSL Statute refers to ‘primacy over the national courts of Sierra Leone’.

1

2

Black’s Law Dictionary, 6th edn, St Paul, MN, 1990, p. 853, cited by Judge Shahabuddeen in Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, p. 3. ICTY Statute, art. 9; ICTR Statute, art. 8; SCSL Statute, art. 8(2).

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The eVect of these texts is to provide for a rule of priority in the event of parallel prosecutions before national courts. During drafting of the ICTR Statute, Zaire (now the Democratic Republic of Congo) had proposed a rule requiring national courts to refer cases to the international tribunal ‘which revealed any link whatsoever with crimes committed in Rwanda’ so as to ensure the primacy of the Tribunal.3 But the only real condition for the exercise of primacy is that the prosecutor of the International Tribunal exercise his or her discretion to prosecute (on the condition, of course, that the International Tribunal has jurisdiction over the oVence and the oVender). The second case before the ICTY raised this issue. Dusˇko Tadic´ had been arrested in Munich, and prosecution had been initiated before German courts. The ICTY Prosecutor invoked ‘primacy’ and demanded that the national prosecution be stayed in favour of the International Tribunal. Without diYculty, German courts accepted the ‘primacy’ of the International Tribunal and authorised the transfer to The Hague, although this did not prevent Tadic´ from arguing, in his preliminary challenges to jurisdiction before the ICTY, that the whole procedure was irregular. Tadic´ claimed that in establishing primacy over national courts, the Security Council had breached article 2(7) of the Charter of the United Nations, which prohibits the United Nations from intervening ‘in matters which are essentially within the domestic jurisdiction of any state’. In reply, the ICTY Appeals Chamber noted that the provision concludes with the following: ‘but this principle shall not prejudice the application of enforcement measures under Chapter VII’.4 The ICTR has not had to confront ongoing proceedings in national courts, but there have been several cases where national jurisdictions were competing with it in extradition matters. On 11 March 1996, Colonel The´oneste Bagosora, one of the leaders of the interim government during the 1994 genocide, was arrested in Cameroon. In the face of concurrent extradition requests from Belgium and Rwanda, Prosecutor Goldstone maintained that given the importance of Bagosora within the government, it was appropriate for him to stand trial before the ICTR.5 But a few months later, when Indian authorities apprehended Froduald Karamira, a Kigali businessman who had led genocidal interahamwe militias, Goldstone backed down in a quarrel with the Rwandan government, after initially insisting that the case should be

3

4

5

‘Letter dated 7 November 1994 from the Charge´ d’aVaires a.i. of the Permanent Mission of Zaire to the United Nations addressed to the President of the Security Council’, UN Doc. S/1994/1267. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 56 (citing article 2(7) of the Charter of the United Nations). Payam Akhavan, ‘The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment’, (1996) 90 American Journal of International Law 501.

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prosecuted by the International Tribunal.6 Karamira was later tried before Rwandan courts, convicted and executed.7 Although it has at times generated conflicts with national justice systems, as in the Karamira case, the primacy of jurisdiction has also worked in a cooperative manner. Explaining the relationship between the ICTY Prosecutor and the German authorities in the case of Novislav Djajic´ and Nikola Jorgic´, the Prosecutor said: The Djajic and Jorgic cases were initiated and investigated by the German authorities, who consulted with the OYce of the Prosecutor of the International Tribunal. The Prosecutor assessed that it was not appropriate to seek a deferral of these cases, and the decision was made that they continue to be prosecuted by the German authorities. There is on-going co-operation between the Prosecutor and the German authorities on these and other cases.8

The tribunals have justified the exercise of primacy because of the shortcomings of national justice systems. In the Tadic´ jurisdictional decision, the ICTY Appeals Chamber said that ‘human nature being what it is, there would be a perennial danger of international crimes being characterised as “ordinary crimes”’.9 But this is not a particularly strong argument. In Tadic´, for example, nobody was claiming that German courts would not pursue the case diligently. Indeed, they were acting under the noblest principles, prosecuting a case under universal jurisdiction, something that is rare enough in modern criminal law practice. In reality, the Prosecutor decided to take over the 6

7

8

9

Navanethem Pillay, ‘The Rwanda Tribunal and its Relationship to National Trials in Rwanda’, (1998) 13 American University International Law Review 1469. On the national trials in Rwanda, see: Peter Uvin, ‘DiYcult Choices in the New Post-conflict Agenda: The International Community in Rwanda after the Genocide’, (2001) 22 Third World Quarterly 177; Peter Uvin and Charles Mironko, ‘Western and Local Approaches to Justice in Rwanda’, (2003) 9 Global Governance 219; Michael P. Scharf, ‘Justice in Practice-Responding to Rwanda: Accountability Mechanisms in the Aftermath of Genocide’, (1999) 52 Journal of International AVairs 621; Mark A. Drumbl, ‘Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda’, (2000) 75 New York University Law Review 1221; Frank M. AZitto, ‘Victimization, Survival, and the Impunity of Forced Exile: A Case Study from the Rwandan Genocide’, (2000) 34 Crime, Law and Social Change 77; William A. Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes”’, (2003) 1 Journal of International Criminal Justice 39. Ministe`re Public v. Karamira, 1 Receuil de jurisprudence contentieux du ge´nocide et des massacres au Rwanda 75 (1st inst., Kigali, 14 February 1997). Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) 93 American Journal of International Law 57, at p. 65 (citing Justice Arbour’s Statement Regarding War Crimes Related Trials Currently Underway in Germany, ICTY Doc. CC/PIO/171-E, 19 March 1997). Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 58.

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German prosecution of Tadic´ because, at this early stage in the Tribunal’s activities, he was desperate for a case to prosecute. Were Tadic´ to have been arrested ten years later, when the Tribunal was suVering under a crushing caseload as well as intense pressure from the Security Council to conclude its operations, it is highly unlikely that the Prosecutor would have meddled with German attempts to bring him to justice. As the tribunals entered their late middle age, in 2003 and 2004, they were looking to refer cases to national jurisdictions, and not to intervene under the principle of primacy. Growing confidence in the ability of the national courts of States of the former Yugoslavia to administer justice is also a factor in this development. Because jurisdiction is territorially limited, there is no question of the ad hoc tribunals exercising universal jurisdiction. Even though universal jurisdiction may be permitted by public international law,10 its use must be authorised in the enabling legislation of the court in question, and this is not the case with respect to the ad hoc tribunals. The ICTY made a gesture of support for the concept of universal jurisdiction when its RPE were amended in order to authorise referral of cases from the Tribunal. Rule 11 bis, as amended on 10 June 2004, allows the judges of the ICTY to refer a case pending before the Tribunal to any State ‘having jurisdiction and being willing and adequately prepared to accept such a case’.11 The corresponding rule at the ICTR authorises referral to ‘any State that is willing to prosecute the accused in its own courts’.12 But as the Appeals Chamber implied in Tadic´, the rule of primacy was really devised in order to resolve conflicts with the national jurisdictions that might shelter an oVender from genuine prosecution. A rule of primacy has had the advantage of vacating any serious debate concerning such conflicts of jurisdiction. By comparison, the Rome Statute of the International Criminal Court adopts a quite diVerent approach, described generally as ‘complementarity’. Under the Rome Statute, it is national courts that have priority, and only when it can be demonstrated that they are unwilling or unable to pursue an investigation or a prosecution may the international tribunal step in.13 At the time the Rome Statute was being debated, the Prosecutor of the ICTY argued that it might be fatally flawed precisely because of this distinction with the ad hoc tribunals. As long as States that would normally exercise jurisdiction over oVences could argue that they were proceeding with an investigation, the ICC would be barred from intervening, and this might take many years to resolve, said Louise Arbour.14 10 11 12 13 14

See the discussion below at pp. 157–158. ICTY RPE, Rule 11bis(A)(iii). ICTR RPE, Rule 11bis(A). There is nothing comparable in the SCSL RPE. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 17. See the remarks of the Prosecutor, in Jennifer Llewellyn and Sandra Raponi, ‘Interview/ Entretien: A Conversation with Madam Justice Louise Arbour, Chief Prosecutor for the

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Related to the issue of primacy is the question of multiple prosecutions, or double jeopardy, often known by the Latin expression non bis in idem or ne bis in idem. While the rule of primacy resolves conflicts between competing courts at the beginning of prosecution, it is also necessary to provide a norm to settle issues when one of the courts has completed its work. The general principle that a person should not be tried twice for the same oVence receives limited recognition in international human rights law. Article 14(7) of the International Covenant on Civil and Political Rights states: ‘No one shall be liable to be tried or punished again for an oVence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ However, this has been interpreted to apply only within a State, and not to address the exercise of jurisdiction by the courts of one State when someone has been prosecuted within another State.15 The non bis in idem provisions in the three statutes are largely similar.16 Basically, they provide that no person may be tried by a national court for acts that constitute serious violations of international humanitarian law if he or she has already been tried by the relevant international tribunal. In the case of the SCSL, the provision is rather more restricted, referring not to any ‘national court’ but to ‘a national court of Sierra Leone’. For the ICTY and ICTR, this constitutes an encroachment on national sovereignty, as it purports to prevent a national court from exercising the jurisdiction for which it would normally be empowered. The statutes also address the possibility that national courts may already have adjudicated a case.17 In such circumstances, the international tribunal may nevertheless intervene and proceed when the act in question was characterised as an ordinary crime under the national prosecution, or when the national prosecution was not impartial or independent or was designed to shield the accused from international criminal responsibility, or if the case was not diligently prosecuted. In eVect, then, while there is a presumption that prior prosecution by the international tribunals is fair, appropriate and diligent, there is no such presumption in the case of national courts. Presumably, once a defendant could establish that a national court had indeed prosecuted him or her, the burden of proof would shift to the Prosecutor to demonstrate that the earlier proceedings were flawed. Finally, should the international tribunals proceed following a national prosecution, in

15 16 17

International Criminal Tribunals for the Former Yugoslavia and Rwanda’, (1999) 57 University of Toronto Faculty of Law Review 83, at p. 97. AP v. Italy (No. 204/1986), UN Doc. CCPR/C/31/D/204/1986, 2 November 1987, para. 7.3. ICTY Statute, art. 10; ICTR Statute, art. 9; SCSL Statute, art. 9. Interestingly, while the SCSL Statute applies only to national courts of Sierra Leone in the event of prior prosecution by the SCSL, it apparently applies to national courts of all countries in the event of subsequent prosecution.

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sentencing an oVender they are required to take into consideration ‘the extent to which any penalty imposed by a national court on the same person for the same act has already been served’. No cases in which suspects have been tried by the international tribunals subsequent to a national prosecution have ever presented themselves under these provisions. Somewhat related to the issue of primacy is an argument raised by some defendants, by which an accused has a fundamental right to be tried before the regular domestic criminal tribunal. This principle, which is enshrined in some national constitutions, is aimed at protecting against prosecution by special ad hoc courts established in order to pervert the course of justice. It is known by the Latin expression jus de non evocando. It finds no reflection in the principal human rights instruments,18 although it is certainly engaged by the general right of an accused to a fair trial.19 In Tadic´, the principle was invoked as part of the preliminary challenge to jurisdiction. The accused had been arrested in Germany and proceedings had been initiated before the application from the ICTY Prosecutor for transfer of the case to The Hague. The Appeals Chamber said: ‘As a matter of fact and of law the principle advocated by the Appellant aims at one very specific goal: to avoid the creation of special or extraordinary courts designed to try political oVences in times of social unrest without guarantees of a fair trial.’ It insisted that there was no violation of the principle by the transfer of jurisdiction to an international tribunal created by the Security Council acting on behalf of the community of nations. The ICTY Appeals Chamber conceded that the accused would be removed from his ‘natural’ national forum, but noted that he would be brought before a tribunal ‘at least equally fair, more distanced from the facts of the case and taking a broader view of the matter’. The Appeals Chamber added that ‘one cannot but rejoice at the thought that, universal jurisdiction being nowadays acknowledged in the case of international crimes, a person suspected of such oVences may finally be brought before an international judicial body for a dispassionate consideration of his indictment by impartial, independent and disinterested judges coming, as it happens here, from all continents of the world’.20 An ICTR Trial Chamber in Kanyabashi reached similar conclusions.21

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19

20 21

Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 61. E.g., ‘Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur, Ms Asma Jahangir, submitted pursuant to Commission on Human Rights Resolution 2000/31’, UN Doc. E/CN.4/2001/9, para. 89. Ibid., para. 82. Kanyabashi (ICTR-96-15-T), Decision on the Defence Motion on Jurisdiction, 18 June 1997, paras. 30–32.

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One manifestation of primacy is the ‘Rules of the Road’ programme, developed a few months after the Dayton Peace Agreement by an agreement between Yugoslavia (Serbia and Montenegro), Croatia and Bosnia and Herzegovina. Under the scheme, all national prosecutions of crimes within the jurisdiction of the ICTY had to be authorised by the Prosecutor in The Hague.22 No person could be arrested and detained for serious violations of international humanitarian law by any of the three States except pursuant to a previously issued order, warrant or indictment that had been reviewed and deemed consistent with international legal standards by the ICTY.23 Thousands of cases were reviewed in this manner by a rather small and underfunded unit of the OYce of the Prosecutor.24 The project also organised lectures with local prosecutors and other justice oYcials in an eVort to improve standards. As criminal justice systems improved in the region, the need for the ‘Rules of the Road’ project became less important, and it was increasingly diYcult to obtain funding. In 2004, the Prosecutor proposed that the review function currently being carried out in The Hague should be transferred to the State Prosecutor of Bosnia and Herzegovina ‘as soon as there is a demonstrable capacity to assume this function in respect of the whole of Bosnia and Herzegovina’.25

Territorial jurisdiction States normally exercise criminal law jurisdiction over crimes when these are committed on their own sovereign territory. Territorial jurisdiction also lies at the heart of the operations of the three ad hoc tribunals, as can be seen from the nomenclature they have been given. Each bears the name of an existing or former sovereign State, and this largely defines the locus of crimes they are authorised to investigate and prosecute.

22

23 24

25

Mark S. Ellis, ‘Bringing Justice to an Embattled Region – Creating and Implementing the “Rules of the Road” for Bosnia–Herzegovina’, (1999) 17 Berkeley Journal of International Law 1. Third Annual Report of the ICTY, UN Doc. A/51/292-S/1996/665, annex, para. 80. See the remarks of the Prosecutor, in Llewellyn and Raponi, ‘A Conversation with Madam Justice Louise Arbour’, at p. 95. Also: Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, annex, paras. 75–76; Fifth Annual Report of the ICTY, UN Doc. A/53/219-S/1998/737, annex, paras. 128–129; Sixth Annual Report of the ICTY, UN Doc. A/54/187-S/1999/846, annex, paras. 135–137; Seventh Annual Report of the ICTY, UN Doc. A/55/273-S/2000/777, annex, paras. 187–189; Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, paras. 201–204; Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, paras. 233–235; Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, paras. 252–253; Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, paras. 286–290. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 288.

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Article 1 of the ICTY Statute establishes jurisdiction for the Tribunal over violations committed ‘in the territory of the former Yugoslavia’. When the Tribunal was established, in May 1993, the disintegration of Yugoslavia was almost complete. What had once been a large federal State, created from the remnants of the Austro-Hungarian Empire in 1919, had been fractured into five component units: Slovenia, Croatia, Bosnia and Herzegovina, Macedonia, and Serbia and Montenegro. The Statute applies to the territory known as Yugoslavia (more completely, the Socialist Federal Republic of Yugoslavia) as it existed on 1 January 1991.26 Article 1 of the ICTR Statute gives the Tribunal jurisdiction over crimes committed ‘in the territory of Rwanda’. Article 1 of the SCSL Statute gives the Court jurisdiction over crimes committed ‘in the territory of Sierra Leone’. The ICTR Statute also authorises the ICTR to prosecute crimes ‘committed in the territory of neighbouring States’ to the extent that they are committed by ‘Rwandan citizens responsible for such violations’. This aspect of the Tribunal’s territorial jurisdiction has not yet proved relevant in any prosecutions. Rwanda is bordered by the Democratic Republic of Congo (which was known as Zaire in 1994), Uganda, Tanzania and Burundi. But ‘neighbouring’ states might be taken as a larger concept, and could also include Kenya, for example. According to one of the United Nations lawyers involved in drafting the Statute, ‘the Council envisaged mainly the refugee camps in Zaire and other neighbouring countries’.27 All of the indictments issued by the Tribunal have concerned Rwanda’s territory as such. The jurisdiction was apparently extended to ‘neighbouring states’ because in the aftermath of the 1994 genocide, when the extremist Hutu militia and government forces had been driven from Rwandan territory, they continued to kill and intimidate civilians in refugee camps close to Rwanda’s borders.28 During the drafting of the ICTR Statute, Uganda expressed concern that ‘its judicial system has primary and supreme jurisdiction and competence over any crimes committed on Ugandan territory by its citizens or non-citizens, at any particular time’. Uganda said it would accept language in the draft statute limiting the jurisdiction and competence of the proposed tribunal to Rwandan territory ‘and the territory of those member States which expressly declare acceptance of such jurisdiction’.29 Zaire also had objections on this point, but 26

27

28

29

Milutinovic´ et al. (IT-99-37-AR72.2), Reasons for Decision Dismissing Interlocutory Appeal Concerning Jurisdiction over the Territory of Kosovo, 8 June 2004. Larry D. Johnson, ‘The International Tribunal for Rwanda’, (1996) 67 International Review of Penal Law 211, at p. 222. Jaana Karhihlo, ‘The Establishment of the International Tribunal for Rwanda’, (1995) 64 Nordic Journal of International Law 683, at p. 698. ‘Letter dated 31 October 1994 from the Charge´ d’aVaires a.i. of the Permanent Mission of Uganda to the United Nations addressed to the President of the Security Council’, UN Doc. S/1994/1230.

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proposed instead that the phrase ‘territory of neighbouring states’ be replaced by the larger concept of ‘territory of States Members of the United Nations’. Zaire noted that the draft statute implied that neighbouring States would be required to concede jurisdiction to the Tribunal, and that it could not accept the provision ‘unless the obligation to waive jurisdiction in favour of the International Tribunal is imposed on all States Members of the United Nations and is not limited only to neighbouring States, which are already suVering under the burden of the events inflicted on them by the crisis in Rwanda’.30 Both the ICTY and ICTR statutes, in distinct provisions entitled ‘Territorial and temporal jurisdiction’,31 specify that territorial jurisdiction includes the ‘land surface, airspace and territorial waters’ of the State in question. The SCSL has no similar provision. The issues concerning jurisdiction over airspace and territorial waters need not be explored here because they have never presented themselves before the tribunals and, based on the existing indictments and pending proceedings, are unlikely to arise in the future. One question of some interest with respect to territorial jurisdiction concerns what is known as ‘eVects’ jurisdiction. Most criminal justice systems accept jurisdiction not only when the crime is committed on the territory of the State but, in some cases, when it is committed outside the territory but produces eVects within the territory. In reality, ‘eVects’ jurisdiction is really an extension of territorial jurisdiction. The textbook example concerns use of a firearm in one country, where the bullet crosses an international border and kills or wounds somebody in a neighbouring country. In this scenario, a crime occurred in both countries, even though no material act was actually perpetrated by the oVender within the country where the victim was situated. The issue of ‘eVects’ jurisdiction might arise if ever the investigation concerning NATO military activity during the 1999 war were to be pursued. Acts and omissions were committed, decisions taken and orders issued in neighbouring Italy, from where bombing missions were deployed, and also even further afield, at NATO headquarters in Belgium and, undoubtedly, at military command locations in the United Kingdom and the United States. Were an order to be given (or even, pursuant to the principle of superior responsibility, were an order not to be given) in Washington to commit a war crime in Belgrade, the ICTY is authorised by article 1 of its Statute to exercise jurisdiction because such an act (or omission) would produce eVects on the territory of the former Yugoslavia.32 30

31 32

‘Letter dated 7 November 1994 from the Charge´ d’aVaires a.i. of the Permanent Mission of Zaire to the United Nations addressed to the President of the Security Council’, UN Doc. S/1994/1267. ICTY Statute, art. 8; ICTR Statute, art. 7. Anthony J. Colangelo, ‘Manipulating International Criminal Procedure: The Decision of the ICTY OYce of the Independent Prosecutor not to Investigate NATO Bombing in the Former Yugoslavia’, (2003) 97 Northwestern University Law Review 1393.

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The ICTY and ICTR have found an implied exception to the territorial jurisdictional limitations in their statutes in the case of crimes committed against the tribunals themselves. For example, an oVence of contempt of court or of perjury might be committed at the seat of the Tribunal, in the Netherlands, or for that matter in any other State. There have been several prosecutions for such oVences committed elsewhere than on the territory of the former Yugoslavia, of Rwanda or of its neighbouring States. There do not appear to have been any objections to what seems rather clearly to breach the text of article 1 of the ICTY and ICTR statutes. This problem does not present itself with respect to the SCSL, because the seat of the Court is at Freetown, the capital of Sierra Leone. Although they have not led to any significant litigation, the territorial limitations in the statutes of the ad hoc tribunals help to highlight some of the lingering tensions in international criminal justice. The issue of territorial jurisdiction was somewhat contentious during the drafting of the Rome Statute of the International Criminal Court. Although the United States never raised the matter in the Security Council or elsewhere when the statutes of the ad hoc tribunals were being prepared, it has frequently argued that there are legal impediments to an international criminal tribunal exercising territorial jurisdiction over nationals of non-Party States.33 The problem does not arise directly with respect to the ICTY and ICTR, because they are not created by treaty. Many States have enacted implementing legislation in order to ensure compliance with orders from the tribunals and to establish the principle of primacy over national courts. For example, section 14 of the Sierra Leone implementing act says: ‘Where, pursuant to Article 8 of the Statute of the Special Court, the Attorney-General receives any request for deferral or discontinuance in respect of any proceedings, he shall grant the request, if in his opinion there are suYcient grounds for him to do so.’34

Temporal jurisdiction Article 1 of the ICTY Statute says that the Tribunal is competent to prosecute oVences committed ‘since 1991’. More detail is furnished by article 8, which says the temporal jurisdiction of the ICTY ‘shall extend to a period beginning

33

34

E.g., Statement by Nicholas Rostow, General Counsel, United States Mission to the United Nations, at the Fifty-seventh session of the United Nations General Assembly, Sixth Committee, on the International Criminal Court, 14 October 2002; John R. Bolton, American Justice and the International Criminal Court, Remarks at the American Enterprise Institute, Washington, 3 November 2003. Special Court Agreement (Ratification) Act 2002, Supplement to the Sierra Leone Gazette, vol. CXXX, No. II, 7 March 2002.

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on 1 January 1991’. The Statute does not provide an end-point for the temporal jurisdiction of the Tribunal. However, the Statute is annexed to Resolution 827 of the Security Council, which notes that the Tribunal is established to prosecute oVences committed between ‘1 January 1991 and a date to be determined by the Security Council upon the restoration of peace’.35 The Security Council has yet to determine the date at which the temporal jurisdiction of the Tribunal ends.36 In November 2000, a Resolution of the Security Council ‘[r]equest[ed] the Secretary-General to submit to the Security Council, as soon as possible, a report containing an assessment and proposals regarding the date ending the temporal jurisdiction of the International Tribunal for the Former Yugoslavia’.37 A few months thereafter, the Secretary-General responded that he was unable to fix a date for the end of the ICTY’s temporal jurisdiction.38 It seems quite possible that the Security Council will close down the ICTY without ever setting the end-date of its temporal jurisdiction. Ethnic conflict had erupted in the Krajina, between ethnic Serbs and Croats, even before Slovenia and Croatia indicated their intent to secede from the Federation on 25 June 1991. The first ‘war’, in Slovenia in July 1991, was little more than a skirmish, and there have been no related prosecutions at the ICTY, nor even serious allegations of atrocities. Fighting in Croatia later that year took on brutal proportions, as Yugoslav Federal military units moved to occupy parts of Croatian territory. They undertook a vicious siege of Vukovar, a town which bordered on Serbian territory.39 In November 1991, Serb forces allegedly summarily executed 250 wounded patients, hospital staV, soldiers who had been defending the city of Vukovar, Croatian political activists and other civilians.40 The following month, Yugoslav military units bombarded the historic Croatian city of Dubrovnik.41 The conflict between Serbia and Croatia ended in January 1992, and the latter soon received general recognition as an independent State by the international community. There was a lull of several months, and then war broke out in Bosnia and Herzegovina following a flawed referendum and a declaration of independence.

35 36

37 38

39

40 41

UN Doc. S/RES/827 (1993), para. 2. During the Security Council debate, Brazil criticised this aspect of the Statute: UN Doc. S/PV/3217 (25 May 1993). A challenge arguing that temporal jurisdiction ended with the 1999 Kosovo ceasefire was dismissed: Boskoski et al. (IT-04–82–PT), Decision on Johan Tarculovski’s Motion Challenging Jurisdiction, 1 June 2005, para. 10. UN Doc. S/RES/1329 (2000), para. 6. ‘Report of the Secretary-General Pursuant to Paragraph 6 of the Security Council Resolution 1329 (2000)’, UN Doc. S/2001/154, para. 16. Milosˇevic´ has been charged with atrocities beginning 1 August 1991. See Milosˇevic´ et al. (IT-99-37-PT), Second Amended Indictment, 28 July 2004, para. 38. Mrksic´ et al. (IT-95-13-R61), Review of Indictment Pursuant to Rule 61, 3 April 1996. Jokic´ (IT-01-42/1-S), Sentencing Judgment, 18 March 2004, para. 24; Strugar (IT-0142-T), Judgment, 31 January 2005.

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It might be argued that the Security Council should not have given the Tribunal jurisdiction over oVences predating its own recognition that there was a threat to the peace. The first Security Council Resolution to invoke Chapter VII of the Charter was adopted on 25 September 1991. It imposed an embargo on deliveries of weapons and military equipment.42 When the ICTY was being created, France took the position that the Tribunal should not be given jurisdiction over ‘crimes predating the dissolution of the former Yugoslavia and the outbreak of the current conflicts’ because Chapter VII of the Charter only authorised the establishment of a body for the purpose of maintaining or restoring peace, ‘not in order to punish earlier crimes’.43 The ICTR is the only one of the three tribunals where the Statute defines the end of its temporal jurisdiction. Article 7 states: ‘The temporal jurisdiction of the International Tribunal for Rwanda shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994.’ At the time of the Statute’s adoption, there was some disagreement about the scope of temporal jurisdiction, focusing on the starting date, not the ending date. The Rwandan government considered the time frame to be too narrow, arguing that jurisdiction begin on 1 October 1990, the date when the civil war broke out following the invasion of northern Rwanda by the Rwandese Patriotic Army. According to Rwanda, ‘the genocide the world witnessed in April 1994 was the result of a long period of planning during which pilot projects for extermination were successfully tested’. It said that an international tribunal ‘which refuses to consider the causes of the genocide in Rwanda and its planning . . . cannot be of any use . . . because it will not contribute to eradicating the culture of impunity or creating a climate conducive to national reconciliation’.44 Kenyan President Daniel Arap Moi also issued a statement urging that the terms of reference of the tribunal be widened to include investigations into responsibility for the downing of the aircraft in April, and into responsibility ‘for the invasion of Rwanda prior to the assassination of the two presidents’. Moi said that if these aspects were not addressed, he could not see ‘how Rwandese who feel aggrieved by the invasion of their own country could possibly trust the Tribunal’.45 Most of the Security Council members were of the view that jurisdiction of the Tribunal would only be justified from 8 April 1994, when the plane crash that killed President Habyarimana brought an end to what was really a

42 43 44 45

UN Doc. S/RES/713 (1991). UN Doc. S/25266, at 22, para. 76 (1993). UN Doc. S/PV.3453, at 14 (1994). ‘Statement by H. E. President Daniel Arap Moi on the Rwanda Tribunal’, UN Doc. S/1995/861, annex.

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fragile ceasefire. A compromise was reached, whereby the Tribunal had jurisdiction from 1 January 1994, ‘in order to capture the planning stage of the crimes’.46 Like the Rwandan civil war, the conflict in Sierra Leone started with a rebel incursion on the frontier, and it would have seemed logical for the jurisdiction of the Tribunal to begin on that date, 23 March 1991. Over the objections of the Government of Sierra Leone, which considered 1991 to be the appropriate starting point for the Court’s jurisdiction,47 the Secretary-General proposed that the jurisdiction begin on 30 November 1996, the date of an unsuccessful peace known as the Abidjan Agreement. In his report on the draft statute, the Secretary-General explained that this was the better option, so as not to impose a ‘heavy burden’ on the Court.48 The explanation given by the United Nations for limiting the jurisdiction is not very convincing. Moreover, the practice of the Tribunal shows that whatever the temporal jurisdiction, it seems necessary to consider evidence about the background of the conflict and the events prior to 30 November 1996 in order to provide context for the specific charges in the various indictments. Perhaps the real explanation for the strange position taken by the Secretary-General is the discomfort of his own lawyers with their possible involvement in pre-Abidjan prosecutions because they did not object to the amnesty provisions included in that peace agreement, in contrast with the position taken two and a half years later at Lome´.49 All three tribunals have heard extensive evidence about acts committed prior to the starting point of their temporal jurisdiction. It seems impossible for either prosecution or defence to make a proper case, given the nature of the charges and the significance of context and historical background, without addressing events that took place prior to the relevant date. Some indictments have referred to alleged crimes committed by an accused person prior to the starting point of the tribunal’s jurisdiction. Defence lawyers have contested 46

47

48

49

‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134, para. 14. These words were referred to by two judges of the Appeals Chamber as justification for considering pre-1994 events in certain cases. See: Ngeze et al. (ICTR-96-11-AR72), Joint Separate Opinion of Judge Lal Chand Vohrah and Judge Rafael Nieto-Navia, 5 September 2000, para. 14. Also: Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 102. ‘Eleventh Report of the Secretary-General on the United Nations Mission in Sierra Leone’, UN Doc. S/2001/857, para. 48. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 26. In his report on the draft SCSL statute, ibid., at para. 22, the Secretary-General said that ‘the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes’, but this was not true. The Secretary-General’s special envoy, Berhanu Dinka, had signed the Abidjan Agreement of 30 November 1996, without comment or objection to article 14, which granted an amnesty to combatants.

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references in the indictments to events that occurred prior to the starting point of the tribunals’ temporal jurisdiction, but without success. In Ngeze and Nahimana, the ICTR Appeals Chamber ruled that it was not improper for an indictment to make reference, merely as an introduction, to crimes allegedly committed by an accused prior to 1 January 1994.50 A Trial Chamber of the ICTR said that such events ‘provide a relevant background and a basis for understanding the accused’s alleged conduct in relation to the Rwandan genocide of 1994’ and that there ‘may be subsidiary or interrelated allegations to the principal allegation in issue and thus may have probative or evidentiary value’.51 Judge Shahabuddeen, in a separate opinion, said evidence of events prior to the starting point of the Tribunal’s temporal jurisdiction could also provide a basis from which to draw inferences concerning intent, and to establish a ‘pattern, design or systematic course of conduct by the accused’.52 It was in this sense that the Nuremberg Tribunal considered pre-war developments in Nazi Germany, including the rise of anti-Semitism, even though it could not convict for war crimes or crimes against humanity committed prior to the armed conflict because of the definitions of these crimes. But as other judges have cautioned: ‘The essential point to be noted is that this Tribunal has a restricted and clearly defined temporal jurisdiction. This applies without exception to all crimes charged including inchoate or continuing crimes.’53 The admissibility of evidence of facts that occurred prior to the start of the temporal jurisdiction of the tribunals is really nothing more than a specific manifestation of a general rule by which evidence of matters not charged in the indictment, including ‘background issues’, can be used to prove an issue relevant to the charges such as motive, opportunity, intent, preparation, plan or knowledge.54 50

51

52

53

54

Ngeze et al. (ICTR-96-11-AR72), Decision on the Interlocutory Appeals, 5 September 2000; also Kajelijeli (ICTR-98-44A-T), Decision on the Appeal from the Decision of 13 March 2001 Rejecting the Defence Motion Objecting to the Jurisdiction of the Tribunal, 18 September 2001. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 100 (citing Ngeze (ICTR-97-27-I), Decision on the Prosecutor’s Request for Leave to Amend the Indictment, 5 November 1999, para. 3, and Nahimana (ICTR-96-11-T), Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 5 November 1999, para. 28). Ngeze et al. (ICTR-96-11-AR72), Separate Opinion of Judge Shahabuddeen, 5 September 2000, para. 20. Judge Shahabuddeen’s views are cited by an ICTY Trial Chamber: Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 101. Ngeze et al. (ICTR-96-11-AR72), Joint Separate Opinion of Judge Lal Chand Vohrah and Judge Rafael Nieto-Navia, 5 September 2000, para. 6. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, paras. 137, 473; Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 321; Strugar (IT-01-42-T), Decision on the Defence Objection to the Prosecution’s Opening Statement Concerning Admissibility of Evidence, 22 January 2004.

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DiYculties present themselves with respect to what are sometimes called ‘continuing crimes’. An example would be the crime of conspiracy to commit genocide, which is an inchoate crime, and can be committed even if genocide itself does not result. The mere agreement of two or more people to commit genocide is a punishable act under the statutes of the ICTY and ICTR.55 As long as indications exist that an agreement reached prior to the starting date of the Tribunal’s jurisdiction continued after that date, it can be argued that the crime was committed within the temporal jurisdiction. Obviously, evidence of the making of an agreement before that date would be relevant to prove the conspiracy. In Ngeze, Judge Shahabuddeen provided a somewhat less complex example, that of a conspiracy to commit a crime that subsequently occurs. The conspiracy might date back to a time before the starting date for purposes of temporal jurisdiction, but ‘so long as the parties continue to adhere to the agreement, they may be regarded as constantly renewing it up to the time of the acts contemplated by the conspiracy’.56 In Nsengiyumva, an ICTR Trial Chamber held: The Trial Chamber accepts the Prosecutor’s submission that allegations dating before 1994 do not constitute independent crimes. These allegations merely represent what the Prosecutor intends to oVer as relevant and admissible evidence of crimes occurring in 1994, or relate to the continuation of events, clarify, and are supplementary to the substantive charges . . . Conspiracy is a ‘continuing crime’. Because [it] is a continuing crime, then events that took place outside the period of the Statute can be taken into account if it can be shown that the conspiracy continued into the relevant period of the Statute. Evidence before 1994 may show when the conspiracy actually commenced. All activities prior to 1 January 1994, so far as they are related to the conspiracy, may be relevant.57

It has been suggested that similar issues arise with the crime of direct and public incitement to commit genocide.58 In the ICTR’s hate propaganda case,

55 56

57

58

ICTY Statute, art. 4(3)(b); ICTR Statute, art. 2(3)(b). Simba (ICTR 01-76-I), Decision on Preliminary Defence Motion Regarding Defects in the Form of the Indictment, 6 May 2004, para. 6 (referring to Ngeze et al. (ICTR-96-11AR72), Separate Opinion of Judge Shahabuddeen, 5 September 2000). Further decisions supporting this approach include: Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 104; Nsengiyumva (ICTR-96-12-I), Decision on the Defence Motions Objecting to the Jurisdiction of the Trial Chamber on the Amended Indictment, 13 April 2000, paras. 24, 27–28; Prosecutor v. Kabiligi et al. (ICTR-96-34-I), Decision on the Defence Motions Objecting to a Lack of Jurisdiction and Seeking to Declare the Indictment Void ab initio, 13 April 2000, paras. 33, 38–39. Nsengiyumva (ICTR-96-12-I), Decision on the Defence Motions Objecting to the Jurisdiction of the Trial Chamber on the Amended Indictment, 13 April 2000, paras. 27–28. Ngeze et al. (ICTR-96-11-AR72), Joint Separate Opinion of Judge Lal Chand Vohrah and Judge Rafael Nieto-Navia, 5 September 2000, paras. 7–9.

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the Trial Chamber said that to the extent hate propaganda inciting genocide produced prior to 1 January 1994 was ‘re-circulated by the Accused in 1994, or the Accused took any action in 1994 to facilitate its distribution or to bring public attention to it, the Chamber considers that such material would then fall within the temporal jurisdiction established by its Statute’.59 However, with respect to pre-1994 incitement in which no subsequent relevant act of the accused falling within the temporal jurisdiction of the Tribunal can be established, the Prosecutor has not even sought indictments. The most notorious case in this respect is that of Leon Mugesera, whose November 1992 speech at a political rally in Rwanda has been cited for its contribution to the genocidal campaign unleashed eighteen months later.60 By 1 January 1994, Mugesera had fled Rwanda and obtained refugee status within Canada. Wisely, the Prosecutor apparently considered that the ICTR did not have temporal jurisdiction over the speech, even if it could be established that Mugesera might have incited genocidal acts committed by others in 1994.61

Personal jurisdiction The Security Council resolution establishing the ICTY said it was for the purpose of prosecuting ‘persons responsible for serious violations of international humanitarian law’.62 Resolution 955, which established the ICTR one year later, said the Tribunal was targeted at persons who are responsible for ‘genocide and other systematic, widespread and flagrant violations of international humanitarian law’, and the same idea was expressed in the long name of the institution: ‘the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 59 60

61

62

Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 103. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 100; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 280; UN Doc. S/PV.3453, at 15 (1994); ‘Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 935’, UN Doc. S/1994/1125, at 13, para. 49. Akhavan, ‘ICTR: Politics and Pragmatics of Punishment’, at p. 506. For the Mugesera saga before the Canadian courts, see: William A. Schabas, ‘Mugesera v. Minister of Citizenship and Immigration’, (1999) 93 American Journal of International Law 529. In June 2005, after litigation lasting nearly a decade, the Supreme Court of Canada described Mugesera’s 1992 speech as a crime against humanity: Mugesera v. Canada (MCI), 2005 SCC 40. UN Doc. S/RES/827 (1993), preamble, para. 2 (emphasis added). Resolution 808 had not spoken to this point, although it noted that under the Geneva Conventions, ‘persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches’.

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January 1994 and 31 December 1994’. The Statute of the Special Court for Sierra Leone somewhat refined this concept, establishing jurisdiction over ‘those who bear the greatest responsibility’ for serious violations of international humanitarian law.

Corporate bodies The reference to ‘persons’ reappears in the introductory paragraph or chapeau of each provision defining a crime within the jurisdiction of the three tribunals. Moreover, the general provision defining the forms of criminal participation speaks of ‘[a] person who planned, instigated, ordered, committed or otherwise aided and abetted’.63 Of more significance is a provision entitled ‘Personal Jurisdiction’ that appears in the ICTY and ICTR statutes, but that is not repeated in the SCSL Statute: ‘The International Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute.’64 The term ‘natural persons’ excludes prosecution of corporate bodies or organisations, something that is permitted under many national systems of criminal justice. The Report of the Secretary-General on the draft statute of the SCSL provides no explanation as to why this provision was not included. This is rather surprising given that the SCSL Statute is undoubtedly modelled on the other two statutes. Perhaps it reflects a specific interest in corporate liability within the Sierra Leone conflict65 or, alternatively, a more general growing concern with financial actors in armed conflicts.66 Absent the specific reference to ‘natural persons’, it seems reasonable to presume that the SCSL could in fact prosecute corporate entities, such as a transnational corporation. Despite this possibility, SCSL prosecutions have been confined to natural persons. Corporate bodies and legal persons were excluded from the Rome Statute, essentially for practical reasons, because some domestic justice systems do not provided for criminal prosecution of corporate bodies or legal persons. This would have created an asymmetric situation, where the principle of complementarity would only apply to prosecutions in States with criminal jurisdiction over corporations.67 63 64 65 66

67

ICTY Statute, art. 7; ICTR Statute, art. 6; SCSL Statute, art. 6 (emphasis added). ICTY Statute, art. 6; ICTR Statute, art. 5 (emphasis added). E.g., UN Doc. S/RES/1385 (2001). Mats Berdal and David M. Malone, Greed and Grievance: Economic Agendas in Civil Wars, Boulder: Lynne Rienner, and Ottawa: International Development Research Centre, 2000. The Prosecutor of the International Criminal Court has made hints in this direction: ‘Communications Received by the OYce of the Prosecutor of the ICC’, Press Release No. pids.009.2003-EN, 16 July 2003, pp. 3–4. For discussion of the debates leading to the exclusion of corporate bodies, see: Per Saland, ‘International Criminal Law Principles’, in Roy Lee, ed., The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results, The Hague:

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Juvenile oVenders Neither the ICTY nor the ICTR statutes contain any provision concerning a minimum age for prosecution before the tribunals. Most of the indictees before the two tribunals have been middle-aged men, and there do not appear to have been any prosecutions of individuals who were even near the age of eighteen at the time of the commission of the oVence.68 On this point, article 7 of the SCSL Statute declares that the Special Court shall have no jurisdiction over any person who was under the age of fifteen at the time of the alleged commission of the crime. In fact, there have been no attempts at prosecution before the three tribunals of any person under the age of eighteen. The International Criminal Court sets eighteen as the cut-oV.69 This was not because of any agreement that persons younger than that age were not capable of committing heinous crimes. All national legal systems are required to set a minimum age for criminal responsibility, in accordance with article 40(3)(a) of the Convention on the Rights of the Child, but this varies considerably from one jurisdiction to another, and the vast majority would set it lower than eighteen. The ICC’s solution was, once again, driven largely by practical concerns, including the requirement that if prosecution of juvenile oVenders were to be considered, an elaborate juvenile justice system with many specific features would need to be developed. Similar concerns are reflected in article 6 of the SCSL Statute. It says that persons between fifteen and eighteen years of age at the time of the alleged commission of the crime ‘shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child’. Furthermore, ‘[i]n the disposition of a case against a juvenile oVender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies’.

68

69

Kluwer Law International, 1999, pp. 189–216, at p. 199; Kai Ambos, ‘General Principles of Criminal Law in the Rome Statute’, (1999) 10 Criminal Law Forum 1, at p. 7; Andrew Clapham, ‘The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’, in: M. Kamminga and S. Zia-Ziarifi, eds., Liability of Multinational Corporations under International Law, Leiden: Martinus NijhoV Publishers, 2001, pp. 139–195. Drazen Erdemovic´ was twenty-three when he participated in the Srebrenica massacre: Erdemovic´ (IT-96-22-A), Sentencing Judgment, 5 March 1998, para. 16. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 26.

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The possibility of prosecuting juvenile oVenders was the subject of some controversy during the drafting of the SCSL Statute.70 One of the appalling features of the Sierra Leone conflict was the participation of so-called ‘child soldiers’.71 The Secretary-General’s report said prosecution of children presented ‘a diYcult moral dilemma’. Noting the reports of widespread participation of child combatants in the conflict, he said: ‘Though feared by many for their brutality, most if not all of these children have been subjected to a process of psychological and physical abuse and duress which has transformed them from victims into perpetrators.’72 It appears that it was the Government of Sierra Leone that pushed for jurisdiction over juvenile oVenders (‘It was said that the people of Sierra Leone would not look kindly upon a court which failed to bring to justice children who committed crimes of that nature and spared them the judicial process of accountability’73), and that representatives of the various international human rights non-governmental organisations were very much opposed to this. With its common-law-based legal system, Sierra Leone sets the age of criminal responsibility at seven. Although still applicable even in many developed countries, such as the United Kingdom and Ireland, the SecretaryGeneral proposed a compromise of fifteen years, accompanied by language drawn from the relevant human rights instruments. The Secretary-General had initially contemplated a rather elaborate system of juvenile justice, including a ‘Juvenile Chamber’ for the Court, and a quite distinct sentencing regime that excluded the penalty of imprisonment.74 To the extent that the purpose of this exercise was to assuage concerns among Sierra Leoneans about impunity for juvenile oVenders, the Secretary-General’s proposals do not seem designed to be very eVective. During the discussions, the Security Council attempted to discourage prosecution of juvenile oVenders by the Special Court: ‘[T]he Truth and Reconciliation Commission will have a major role to play in the case of juvenile oVenders, and the members of the Security Council encourage the Government of Sierra Leone and the United Nations to develop suitable institutions, including specific provisions relating to children, to this end.’75

70

71

72

73 74 75

Diane Marie Amann, ‘Calling Children to Account: The Proposal for a Juvenile Chamber in the Special Court for Sierra Leone’, (2001) 29 Pepperdine Law Review 167. Report of the Sierra Leone Truth and Reconciliation Commission, Freetown, 5 October 2004, vol. 2, chapter 2, ‘Findings’, para. 467. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915 (4 October 2000), para. 32. Ibid., para. 35. Ibid., para. 37. ‘Letter dated 22 December 2000 from the President of the Security Council Addressed to the Secretary-General’, UN Doc. S/2000/1234, p. 1.

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In its final version, much of this was eliminated.76 But the SCSL Statute requires that at least some of the judges have experience in juvenile justice,77 and that ‘[i]n the prosecution of juvenile oVenders, the Prosecutor shall ensure that the child-rehabilitation programme is not placed at risk and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability’.78 In reality, this debate was of no real significance. The Security Council predicted it would be ‘extremely unlikely juvenile oVenders will in fact come before the Special Court’79 and, indeed, shortly after his appointment, the SCSL Prosecutor declared publicly that he would not be investigating or prosecuting juveniles.

Nationality In addition to its territorial jurisdiction over Rwanda, the ICTR also has jurisdiction over oVences committed in the ‘territory of neighbouring States’, but only to the extent that these were committed by ‘Rwandan citizens’. This ancillary jurisdiction has never formed the basis of any prosecution, and issues relating to interpretation of the provision have therefore not arisen before the Tribunal. Rwandan citizenship is determined by the Code of Rwandan Nationality, adopted 28 September 1963 and subsequently amended. Many of the participants in the conflict in 1994 may not have been citizens of Rwanda, given that they were born and raised abroad, as refugees, and may in some cases have taken another nationality.80 The other two statutes make no reference to nationality as a basis of jurisdiction. When in 1999 the Prosecutor indicated her intent to investigate NATO military personnel with respect to alleged war crimes committed during the bombing of Yugoslavia, some American legislators expressed surprise, and indeed challenged the idea that the Tribunal might be in a position to prosecute nationals of the United States.81 However, there is no such restriction on the jurisdiction of the ICTY, if the alleged oVence has a territorial nexus with the former Yugoslavia.82 76

77

78 79

80

81

82

‘Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/95, paras. 7–9. SCSL Statute, art. 13(2). See also, art. 15(4), with respect to appointment of prosecution staV. SCSL Statute, art. 15(5). ‘Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/95, p. 1. Mariann Meier Wang, ‘The International Tribunal for Rwanda: Opportunities for Clarification, Opportunities for Impact’, (1995) 27 Columbia Human Rights Law Review 177, at p. 196. Richard J. Goldstone, ‘International Jurisdiction and Prosecutorial Crimes’, (1999) 47 Cleveland State Law Review 473, at pp. 479–480. Colangelo, ‘Manipulating International Criminal Procedure’.

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The general jurisdiction of the SCSL over oVences committed on the territory of Sierra Leone is restricted with respect to foreign peacekeeping troops. Article 1(2) of the Statute says that ‘[a]ny transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments or regional organizations, or, in the absence of such agreement, provided that the peacekeeping operations were undertaken with the consent of the Government of Sierra Leone, shall be within the primary jurisdiction of the sending State’. In this respect, the jurisdiction of the SCSL is narrower than that of the national courts of Sierra Leone although, as the provision implies, Status of Forces Agreements have had the practical eVect of depriving the courts of Sierra Leone of the possibility of prosecuting peacekeepers. During the conflict in Sierra Leone, there were many serious and credible charges that peacekeepers, particularly those of Nigerian nationality who were accredited to the mission of the ECOWAS, engaged in violations of the laws and customs of war. The text of article 1(2) of the SCSL Statute says that the national courts of the sending State retain ‘primary jurisdiction’, which seems to imply that failing prosecution by the national courts, the Special Court might then be in a position to intervene. But paragraph 3 of article 1 completes the provision, stating that ‘[i]n the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons’. These provisions did not appear in the initial September 2000 draft Statute proposed by the Secretary-General.83 In its first response to the SecretaryGeneral’s draft, the Security Council said it was ‘the responsibility of Member States who have sent peacekeepers to Sierra Leone to investigate and prosecute any crimes they may have allegedly committed. Given the circumstances of the situation in Sierra Leone, the Special Court would have jurisdiction over those crimes only if the Security Council considers that the Member State is not discharging that responsibility.’84 In subsequent correspondence with the Security Council in early 2001, the Secretary-General noted that the limitation of the jurisdiction of the Court to ‘those who bear the greatest responsibility’ would have to be ‘reconciled with an eventual prosecution of juveniles and members of a peacekeeping operation, even if such prosecutions are unlikely’, and proposed a revised text of article 1.85 This included the following: ‘In the 83

84

85

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915 (4 October 2000). ‘Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2000/1234, p. 1. ‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/40, para. 2.

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event that the President of the Special Court is convinced that the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, he or she shall notify the Security Council and seek its intervention with the sending State in order to induce it to conduct the investigation and prosecution in its own courts, or to surrender the accused to the jurisdiction of the Special Court.’86 The Security Council confirmed its agreement that it was ‘appropriate . . . for the President of the Special Court to be empowered in the manner suggested in the proposed reformulation of article 1(c) of the draft Statute of the Court’.87 But this proposal does not appear in the final version of the Statute, and there is no explanation in the public record for its omission. The eventual solution to the issue requires the approval of the Security Council before prosecution of a peacekeeper can be undertaken. The language is familiar, and echoes the so-called complementarity provision found in article 17 of the Rome Statute of the International Criminal Court. Nevertheless, unlike the situation that prevails at the ICC, it is not for the Court to determine whether the sending State is deficient in bringing perpetrators to justice; this determination resides solely with the Security Council itself. It constitutes the only formal recognition of a role for the Security Council in the activities of the Special Court. It might be argued that this provision is unnecessary, and that the Council has such powers even absent recognition in the Statute. When he proposed the text of paragraphs 2 and 3, the SecretaryGeneral noted that ‘[t]he amended article, however, falls short of inducing the unwilling State to surrender an accused person situated in its territory, with the result that a State which is unwilling to prosecute a person in its own courts would in all likelihood be unwilling to surrender that person to the jurisdiction of the Special Court’.88 But were the Security Council to deem it appropriate to intervene, it would presumably include in its resolution a binding order to the State concerned to the eVect that surrender of the suspect was required. The text of paragraphs 2 and 3 is broadly similar to other Security Council initiatives taken in 2002 and 2003 aimed at sheltering peacekeepers from international prosecution,89 and almost surely reflects the influence of the United States, which has been especially concerned with this.

86 87

88

89

Ibid., para. 5. ‘Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/95. ‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/40, para. 4. UN Doc. S/RES/1422 (2002), UN Doc. S/RES/1487 (2003), UN Doc. S/RES/1497 (2003).

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Seniority The Charter of the Nuremberg Tribunal defined personal jurisdiction over ‘major war criminals of the European Axis’,90 and it has long been debated whether all of the accused actually fulfilled this criterion. No such limitation appeared in the statutes of the ICTY and ICTR, the matter of the importance of oVenders being initially left entirely to the discretion of the Prosecutor. The first trials at the ICTY were confined to relatively insignificant personalities, and this raised concerns in the international community that such extensive resources were being devoted to trials that were not in reality of great importance, at least in terms of the persons who were tried. It was no doubt in an attempt to alter this situation that a jurisdictional limitation was introduced into the SCSL Statute. The Court is empowered to prosecute ‘persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’.91 In the original resolution proposing the establishment of a tribunal for Sierra Leone, the Security Council said the jurisdiction of the institution should be limited to ‘those who bear the greatest responsibility for the commission of the crimes’. The Secretary-General responded by suggesting the words ‘persons most responsible’, saying that this expression ‘denotes both a leadership or authority position of the accused, and a sense of the gravity, seriousness or massive scale of the crime’.92 The Secretary-General noted that this language would facilitate prosecution of ‘others in command authority down the chain of command’.93 Although this condition was placed in article 1 of the Statute, entitled ‘Competence of the Special Court’, the Secretary-General said it should be seen ‘not as a test criterion or a distinct jurisdictional threshold, but as a guidance to the Prosecutor in the adoption of a prosecution strategy and in making decisions to prosecute in individual cases’. The Security Council did not give way, however, insisting upon the original proposal and on limiting ‘the focus of the Special Court’ to ‘those who played a leadership role’.94 90

91 92

93

94

Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 1. SCSL Statute, art. 1. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, paras. 29–30. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 30. ‘Letter dated 22 December 2000 from the President of the Security Council Addressed to the Secretary-General’, UN Doc. S/2000/1234, p. 1.

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The SCSL Trial Chamber has held that the term ‘those who bear the greatest responsibility’ is indeed a jurisdictional requirement rather than mere ‘guidance’ to prosecutorial discretion, as was suggested by the SecretaryGeneral.95 The Trial Chamber said that a judge authorising an indictment should be satisfied that there is ‘suYcient information to provide reasonable grounds for believing that the Accused is a person who bears the greatest responsibility’.96 The Trial Chamber referred to the drafting history of the Statute, and appeared to rely on the views of the Security Council to the eVect that the leadership role, rather than the severity of the crime or its massive scale, should determine jurisdiction.97 The Trial Chamber noted that while this issue could be raised at the preliminary stage, in terms of the suYciency of the allegations in the indictment, whether or not an accused person actually fulfilled the criterion of article 1 was an evidentiary matter to be determined during the trial.98 This leaves open the very real possibility that at the conclusion of the prosecution case, the accused will file motions arguing that a prima facie case was not made out because it had not been demonstrated that the accused was ‘a person who bears the greatest responsibility’. The Prosecutor will have to provide an evidentiary basis for this aspect of the indictment, relying, perhaps, on extrinsic materials such as the report of the Sierra Leone Truth and Reconciliation Commission. The original proposal to create the Special Court for Sierra Leone, presented by the President of Sierra Leone, had said it should be established to prosecute members of the Revolutionary United Front. Undoubtedly, in the view of President Kabbah, who had led one of the combatant parties in the civil war, it was the RUF that bore the greatest responsibility for the atrocities. This was also a commonly held view in the international community, and one reflected in NGO materials as well as United Nations reports. Obviously, it would be improper for the United Nations to establish a tribunal that identified the political aYliation of those targeted for prosecution, especially in a civil war,99 and the Report of the Secretary-General did not even respond to this suggestion from the Government of Sierra Leone. The Prosecutor has indicted participants from all of the major parties to the conflict, including those associated with the President himself.100

95

96 97 98 99

100

Fofana (SCSL 2004-14-PT), Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of the Accused Fofana, 3 March 2004, paras. 27, 39. Ibid., para. 38. Ibid., para. 40. Ibid., para. 44. Although it is worth recalling that the Nuremberg Charter charged the Tribunal with prosecuting ‘the major war criminals of the European Axis’. Sierra Leone’s Truth and Reconciliation Commission concluded that all factions in the conflict, including those aligned with the Government, committed attacks directed

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Although the ICTR has no express jurisdictional limitation with respect to the level of responsibility of oVenders it may prosecute, it can be argued that there is a definite signal within the Statute and the travaux pre´paratoires that it should focus on acts of genocide, and this is in fact what it has done. The Commission of Inquiry’s proposal was that the Tribunal be aimed primarily at prosecuting those responsible for genocide, but the draft resolution submitted by the United States referred to prosecution of ‘all persons’ who have violated ‘international humanitarian law’. Even at the time, it was clear that the broader language would also authorise prosecution of members of the Rwandan Patriotic Front for atrocities in which they might be involved, including allegations of massacres committed after they took power in July 1994. Aware of this agenda, the Government of Rwanda opposed including language in the Statute that would allow such jurisdiction.101 In the Security Council debate, New Zealand’s representative, Colin Keating, noted that ‘the focus of the jurisdiction of the Tribunal is not on war crimes, but on genocide, as Rwanda had requested’.102 In December 1995, Prosecutor Goldstone indicated that the ‘essential objective’ of his oYce was ‘to bring to justice those most responsible both at the national and local level for the mass killings that took place in Rwanda in 1994’.103 That the Prosecutor has chosen to address acts of genocide and related crimes committed against Tutsi, rather than violations committed by Tutsi-led participants in the civil war, has often been criticised. But the Tribunal would never have been created to deal with the ‘ordinary’ atrocities that characterised the civil war in Rwanda and that are, for that matter, common to many conflicts in the region. It was established to deal with the most significant act of genocide of the second half of the twentieth century, and it is entirely appropriate that the Prosecutor has oriented indictments with that in mind. The ‘Completion Strategy’ discussions have had the eVect of imposing a limitation on both the ICTY and ICTR in terms of the level of oVender subject to prosecution. In addition to various structural reforms, the Strategy involves focusing prosecutions in terms of the seriousness of the oVender. As early as 2000, the Security Council took note of the position expressed to it by the two tribunals ‘that civilian, military and paramilitary leaders should be tried before them in preference to minor actors’.104 The ICTY’s initial proposals referred to limiting prosecutions to ‘those crimes which most seriously violate

101

102 103

104

against civilians. See: Report of the Sierra Leone Truth and Reconciliation Commission, Freetown, 5 October 2004, vol. 2, chapter 2, ‘Findings’, para. 76. Raymond Bonner, ‘UN Commission Recommends Rwanda “Genocide” Tribunal’, New York Times, 29 September 1994, p. 13. UN Doc. S/PV.3453, p. 16. Press Statement by Richard Goldstone, ICTR Prosecutor, 12 December 1995, cited in Akhavan, ‘ICTR: Politics and Pragmatics of Punishment’, at p. 507. UN Doc. S/RES/1329 (2000), preamble.

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international public order’.105 This was an odd formulation, because it applies to all of the crimes within the subject matter of the Tribunal. A subsequent version of the Strategy referred to ‘trying the most senior oVenders of crimes which most seriously violate international public order’.106 The Security Council confirmed its agreement with the Strategy,107 insisting that both tribunals, ‘in reviewing and confirming any new indictments, . . . ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal’.108 In compliance with the Security Council, the ICTY judges promptly amended the RPE so as to authorise the Bureau to filter all proposed indictments from the Prosecutor in order to ensure that they concern ‘one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal’.109 Moreover, another amendment authorises the President to appoint a ‘Referral Bench’ of three judges with the mandate to refer a case to national courts, taking into account ‘the gravity of the crimes charged and the level of responsibility of the accused’.110

Jurisdiction over property The statutes do not give the tribunals any jurisdiction with respect to property. Nevertheless, to a limited extent the tribunals have attempted to exercise jurisdiction in this respect. In accordance with ICTY RPE and ICTR RPE Rule 61(D), a Trial Chamber, when issuing an international arrest warrant, may order a State or States to adopt provisional measures to freeze the assets of the accused, ‘without prejudice to the rights of third parties’. Rule 61 has not been used by the ICTY since 1996. It has never been used by the ICTR, which explains why it was omitted from the RPE adopted by the SCSL. However, the statutes also authorise a Reviewing Judge, at the time an indictment is issued, to make ‘such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required’.111 On the basis of this 105

106 107 108 109

110 111

Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 6. The other reference, in the same document, referred to ‘trying persons whose crimes most seriously violated international public order’ (para. 18). Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 4. UN Doc. S/PRST/2002/21. Also: UN Doc. S/RES/1503 (2003), preamble. UN Doc. S/RES/1534 (2004). ICTY RPE, Rule 28(A), amended 6 April 2004. There is no equivalent provision in the ICTR RPE. ICTY RPE, Rule 11bis(A); ICTR RPE, Rule 11bis(A). ICTY Statute, art. 19(2); ICTR Statute, art. 18(2). In the case of the SCSL, the authority comes from Rule 47(H) of the RPE.

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provision, an order was issued freezing the assets of Slobodan Milosˇevic´.112 There is nothing in the public record to indicate whether any action was taken as a result. Presumably the Tribunal would have boasted of its success in the Annual Report if the freezing order was responsible for any practical consequences. Moreover, Milosˇevic´ and his family would surely have undertaken litigation before national courts to challenge this exercise of jurisdiction over property. There is at the very least an arguable case that such action by the Tribunal goes well beyond its authority under the Statute. The RPE allow the Prosecutor, in case of urgency, to request a State ‘to seise physical evidence’ and ‘to take all necessary measures to prevent the escape of a suspect or an accused, injury to or intimidation of a victim or witness, or the destruction of evidence’. Invoking this provision, the ICTR Prosecutor requested French justice authorities to freeze bank accounts of Fe´licien Kabuga and his family, and to seize a number of related documents. The French authorities complied. When more than a year later the Kabuga family took proceedings before the ICTR President to lift the measures, they were told they had no locus standi before the Tribunal. The Appeals Chamber reversed the President’s decision, holding ‘that a decision of a non-judicial body which aVects the liberty of individuals or their property should be subject to judicial review’. The matter was remitted to a Trial Chamber for further action.113 In rendering a guilty verdict, Trial Chambers are authorised by the RPE to order restitution of property that was taken unlawfully in association with the crime in question, as well as proceeds of the property.114 The SCSL RPE call this ‘forfeiture’, and specify that a judgment may order ‘forfeiture of the property, proceeds and any assets it finds has been acquired unlawfully or by criminal conduct’.115 In Musema, an ICTR Trial Chamber said that it could only make a restitution order if the indictment contained a charge of unlawful taking of property.116 There is no trace of these provisions actually being applied.117 Were this to occur, challenges based on jurisdiction would be likely. After all, these are criminal courts, not civil tribunals. They have neither the time, the resources nor the expertise to deal properly with property matters. 112

113

114 115 116

117

Milosˇevic´ et al. (IT-99-37-I), Decision on Review of Indictment and Application for Consequential Orders, 24 May 1999, para. 29. See: Michael P. Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’, (2000) 49 DePaul Law Review 925. Miscellaneous – Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal, 22 November 2002. ICTY RPE, Rules 98 ter (B), 105; ICTR RPE, Rules 88(B), 105. SCSL RPE, Rules 88(B), 104. Musema (ICTR-96-13), Decision on an Application by African Concern for Leave to Appear as Amicus Curiae, 17 March 1999, paras. 10–11. E.g., Bagosora et al. (ICTR-98-41-T), Decision on Amicus Curiae Request by the Rwandan Government, 13 October 2004.

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Furthermore, with rare exceptions, the defendants are declared indigent and benefit from funded counsel. The RPE contain a provision entitled ‘Compensation to Victims’ that requires the Registrar to transmit a judgment finding an accused guilty of a crime that has caused injury to a victim to ‘the competent authorities of the States concerned’. Moreover, ‘[p]ursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation’. The RPE also state that for the purposes of such a claim, ‘the judgment of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury’.118 It does not appear that any claims by victims have in fact been made based upon this provision.119 In 2000, the ICTY judges themselves considered the eVectiveness of the Rule, saying it appeared ‘unlikely to produce substantial results in the near future’.120 The issue of compensation for victims was apparently first raised by the ICTR Prosecutor. The ICTR Registrar had also taken some concrete initiatives at the time with respect to victims in Taba township, where Jean-Paul Akayesu had been the bourgmestre. These measures included some form of monetary assistance for victims, but the Tribunal quickly realised that this went beyond its authority and that an amendment to the Statute was required if a role in compensation was to be developed.121 The ICTY Registry’s legal service was asked to prepare a detailed study of the issue. The report concluded that victims of crimes under the jurisdiction of the tribunals were entitled to claim compensation for their pain and suVering. The judges endorsed this conclusion, but said they believed the responsibility for processing and assessing claims fell to other bodies within the United Nations. Based on this, in September 2000, the President of the ICTR and the ICTY, acting on behalf of the judges, submitted a proposal to the Secretary-General of the United Nations dealing with the ‘rights of victims’ to participate in and to receive compensation.122 Nothing more has been heard on the matter.123 118 119

120 121

122

123

ICTY RPE, Rule 106; ICTR RPE, Rule 106; SCSL RPE, Rule 105. Mikaela Heikkila¨, International Criminal Tribunals and Victims of Crime, Turku: A˚bo Akademi University, 2004, at p. 176. UN Doc. S/2000/1063, appendix, para. 45. Naomi Roht-Arriaza, ‘Reparations Decisions and Dilemmas’, (2004) 27 Hastings International and Comparative Law Review 157, at p. 184. UN Doc. S/2000/1063, appendix; UN Doc. S/2000/1198, annex. Also: Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 49; Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 84. Roht-Arriaza, ‘Reparations Decisions and Dilemmas’, at p. 158. Note that Security Council Resolution 827 (1993), which adopted the ICTY Statute, declares that ‘the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law’.

5 Subject-matter jurisdiction generally

The subject-matter jurisdiction (or jurisdiction ratione materiae) consists of the crimes that the tribunals are authorised to prosecute. The ICTY has four such provisions, entitled: Grave breaches of the Geneva Conventions of 1949 (art. 2), Violations of the laws or customs of war (art. 3), Genocide (art. 4) and Crimes against humanity (art. 5). The ICTR has three provisions, entitled: Genocide (art. 2), Crimes against humanity (art. 3) and Violations of article 3 common to the Geneva Conventions and of Additional Protocol II (art. 4). The SCSL has four provisions, entitled: Crimes against humanity (art. 2), Violations of article 3 common to the Geneva Conventions and of Additional Protocol II (art. 3), Other serious violations of international humanitarian law (art. 4) and Crimes under Sierra Leonean law (art. 5). Two categories of crimes are common to the three statutes, crimes against humanity and ‘war crimes’. While each of the statutes has a provision entitled ‘crimes against humanity’, the actual definition diVers from one instrument to the other. Each also contains provisions that fit broadly within the generic category of war crimes, although they are titled and defined somewhat diVerently in the three statutes. The ICTY and ICTR statutes contain a provision concerning genocide, but this category of crime is omitted in the Statute of the SCSL. Judges at the ad hoc tribunals have sometimes described the subject-matter jurisdiction of the courts as encompassing ‘universally condemned oVences’.1 Indeed, the judges have capitalised the three words, suggesting that they may be attempting to coin a new term subsuming genocide, crimes against humanity and war crimes. Citing Judge Rosalyn Higgins of the International Court of Justice, the Appeals Chamber has said that ‘Universally Condemned OVences are a matter of concern to the international community as a whole.’2 The term itself may not be ideal, because

1

2

Dragan Nikolic´ (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, paras. 24, 25. Ibid., paras. 24, 25, citing Rosalyn Higgins, Problems and Process (International Law and How We Use It), Oxford: Clarendon Press, 1995, p. 72.

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‘ordinary’ crimes like murder or rape would also be universally condemned. Yet these are not within the jurisdiction of the tribunals unless they amount to forms of murder or rape that also meet the contextual elements of war crimes, crimes against humanity or genocide. Thus, although the Appeals Chamber may be right to say that all crimes within its jurisdiction are ‘universally condemned’, the opposite is not correct: not all ‘universally condemned’ crimes justify international prosecution. A better approach would be to describe the subject-matter jurisdiction (i.e., the crimes that the tribunals are authorised to prosecute) as being ‘international crimes’. The SCSL also has a peculiar jurisdiction over certain crimes under Sierra Leonean law. These consist of oVences relating to the abuse of girls under the 1926 Prevention of Cruelty to Children Act and oVences relating to the wanton destruction of property, and in particular arson, under the 1861 Malicious Damage Act.3 This is of purely theoretical interest, because no indictments have invoked these provisions. The tribunals have also created provisions for the prosecution of contempt of court4 and perjury,5 deeming this to be the exercise of an inherent power necessary for the proper administration of justice. According to the ICTY Appeals Chamber, although ‘[t]here is no mention in the Tribunal’s Statute of its power to deal with contempt’, it possesses ‘an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded’.6

The nature of international crimes The three institutions are often colloquially described as ‘war crimes tribunals’. But of course the oVences within the subject-matter jurisdiction of the courts go well beyond ‘war crimes’. According to article 1 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide is a crime that may be committed in either war or peace, so it is incorrect to describe it as a war crime. Similarly, it is generally agreed that under customary international law, crimes against humanity can also be committed in time of peace, although in the past this was not always the case.7 Yet article 1 of each of the

3 4 5 6

7

SCSL Statute, art. 5. ICTY RPE, Rule 77; ICTR RPE, Rule 77; SCSL RPE, Rule 77. ICTY RPE, Rule 91; ICTR RPE, Rule 91; SCSL RPE, Rule 91. Tadic´ (IT-94-1-AR77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, para. 13. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 140–141.

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statutes of the three tribunals says they have the power to prosecute ‘serious violations of international humanitarian law’. Given that crimes within the jurisdiction of the tribunals may be committed in time of peace, it seems mistaken to describe genocide and crimes against humanity as serious violations of international humanitarian law. This is either careless employment of the term ‘international humanitarian law’, or else some neologistic usage of the term that goes beyond the traditional scope of war crimes and the law of armed conflict to encompass serious crimes under international law aimed at the protection of fundamental human rights. Yet it is of interest that the only reference to international humanitarian law in the Rome Statute is in a provision dealing with qualifications of judges.8 Certainly it seems clear enough that the Security Council intended the ICTR to have jurisdiction over periods in 1994 when there was clearly no armed conflict. As for the SCSL, it is specifically mandated to prosecute individuals who may ‘have threatened the establishment of and implementation of the peace process in Sierra Leone’,9 which also implies crimes that are not committed in time of armed conflict. On other occasions, the tribunals have noted that subject-matter jurisdiction is exercised over oVences that ‘do not aVect the interests of one State alone but shock the conscience of mankind’.10 Citing the Supreme Military Tribunal of Italy, in a post-Second World War case, the ICTY Appeals Chamber noted: These norms [concerning crimes against laws and customs of war], due to their highly ethical and moral content, have a universal character, not a territorial one . . . The solidarity among nations, aimed at alleviating in the best possible way the horrors of war, gave rise to the need to dictate rules which do not recognise borders, punishing criminals wherever they may be.11

Similarly, in the Eichmann case, the Supreme Court of Israel wrote: [T]hese crimes constitute acts which damage vital international interests; they impair the foundations and security of the international community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilised nations. The underlying principle in international law regarding such crimes is that the individual who has committed any of them and who, when doing so, may

8

9 10

11

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 36(b) (ii). Article 21(1)(b) of the Rome Statute refers to ‘the established principles of the international law of armed conflict’. SCSL Statute, art. 1(1). Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 57. Ibid., para. 57 (citing Sup. Mil. Trib., Italy, 1950; unoYcial transcript).

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be presumed to have fully comprehended the heinous nature of his act, must account for his conduct . . . Those crimes entail individual criminal responsibility because they challenge the foundations of international society and aVront the conscience of civilised nations . . . [T]hey involve the perpetration of an international crime which all the nations of the world are interested in preventing.12

Long before Nuremberg, international law began defining ‘international crimes’. The first of these included piracy, traYcking in persons (once called ‘white slavery’), and trade in drugs and obscene materials. The consequence of their recognition as international crimes was an acknowledgement of universal jurisdiction; that is, any State could prosecute the oVence, regardless of where it was committed. The rationale for this was explained by Judge Moore of the Permanent Court of International Justice in Lotus: ‘As the scene of the pirate’s operations is the high seas, which is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry, and is treated as an outlaw, as the enemy of all mankind – hostis humani generis – whom any nation may in the interest of all capture and punish.’13 If there is a common denominator, it resides more in the international nature of the crime. Such oVences were often committed on the high seas, on territory belonging to no State in particular. Defining them as ‘international crimes’ helped to justify States exercising jurisdiction when they would not normally do so, and also to promote international cooperation in the repression of such oVences. The drive to recognise that genocide, crimes against humanity and war crimes were also international crimes had a somewhat diVerent basis, however, and this was far less easy to achieve. The original draft resolution on genocide in the United Nations General Assembly, proposed in 1946, said: ‘Whereas the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such as piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made matters of international concern’.14 But this clause was dropped in the final draft,15

12

13

14

15

A.-G. Israel v. Eichmann, (1968) 36 ILR 277 (Supreme Court of Israel), pp. 291–293 (cited in Tadic´, ibid., para. 57). SS Lotus (France v. Turkey), [1927] PCIJ Ser. A (Judgments) No. 10 (Judgment No. 9) (1929). UN Doc. A/BUR/50. The General Assembly decided to include the point in its agenda (UN Doc. A/181), and the matter was referred to the Sixth Committee (UN Doc. A/C.6/ 64). GA Res. 96(I).

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and the principle of universal jurisdiction over genocide was not admitted in the subsequent Convention of 1948. Since then, the idea that crimes are international because of their intrinsic horror, rather than because their repression requires an international eVort, has become more prominent. This approach is reflected in an important American case: ‘The ‘‘universality principle’’ is based on the assumption that some crimes are so universally condemned that the perpetrators are the enemies of all people. Therefore, any nation which has custody of the perpetrators may punish them according to its law applicable to such oVences.’16 But this explanation has its flaws. Crimes such as murder, rape and sexual abuse of children are also ‘universally condemned’, yet there is no drive for their elevation to the status of international crimes. The common denominator of crimes is much larger than the three categories commonly recognised as international crimes within this new paradigm, namely, genocide, crimes against humanity and war crimes. There may be another explanation why genocide, crimes against humanity and war crimes require international criminalisation: generally, they are crimes committed by States or, rather, individuals who hold positions of leadership and control within States. For this reason, such crimes usually escape prosecution by the national court that would ordinarily exercise jurisdiction. Other crimes that are ‘universally condemned’, such as murder, rape and sexual abuse of children, do not require internationalisation because the State that normally exercises jurisdiction is almost invariably willing to prosecute. There are four important consequences that result from the characterisation of acts as an ‘international crime’: they can be prosecuted retroactively; they can be prosecuted by courts that would not normally exercise jurisdiction; they impose duties upon States with respect to mutual legal assistance in the investigation, extradition and prosecution of such oVences; traditional rules concerning immunity of heads of State and other senior oYcials are relaxed. Retroactive prosecution, which is discussed in chapter 2,17 operates as an exception to the general rule that prevents a person being tried for an oVence that was not prohibited by law at the time of its commission. There is a long history of this norm in national constitutions, which was recognised in international law as early as 1935 in the Permanent Court of International Justice case concerning legislative decrees in Danzig.18 When challenged by the

16 17 18

Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir., 1985). Above, pp. 60–67. Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion [1935] PCIJ 2, Ser. A/B, No. 65 (4 December 1935), p. 51.

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Nazi defendants who argued that ‘crimes against peace’ had never before been punishable, the Allied judges at Nuremberg tried to demonstrate that acts of aggression had indeed been universally condemned in past decades. The Nuremberg judges also conceded that such crimes should be punished because it would violate principles of justice to let the oVenders go free,19 but this argument is today less tenable because of the quite clear terms of international human rights law: ‘No one shall be held guilty of any penal oVence on account of any act or omission which did not constitute a penal oVence, under national or international law, at the time when it was committed.’20 In other words, it is not enough to argue that the act was universally abhorrent and that it would be unjust not to punish oVenders. There must now always be a demonstration that the act itself was condemned by international law. With respect to prosecution by the three tribunals, the debate about retroactivity has been significant for two reasons. First, most of the crimes within the jurisdiction of the tribunals had not previously been incorporated into national law. Rwanda, for example, while it had ratified the Genocide Convention during the 1970s, never took the additional step of enacting amendments to its Penal Code in order to make the crime of genocide punishable under Rwandan law and to provide penalties for its commission. Indeed, until the beginning of the twenty-first century, when large numbers of States incorporated the international crimes of genocide, crimes against humanity and war crimes into their national judicial systems in order to comply with the provisions of the Rome Statute of the International Criminal Court, the domestic recognition of international crimes was a very incomplete patchwork. But this was not an obstacle to ‘retroactive’ prosecution to the extent that the crimes were also recognised as being oVences under international law. The second consequence of characterising an act as an international crime is that this authorises prosecution by courts that would not normally be allowed to exercise jurisdiction. The exercise of jurisdiction over crimes is a facet of national sovereignty. Pursuant to principles of international law, as a general rule States have only exercised jurisdiction over crimes when they could demonstrate an appropriate link or interest. Normally, this consisted of a territorial connection, either because the crime was committed on the State’s territory or because it had significant eVects on that territory. More exceptionally, international law has also allowed States to exercise jurisdiction over

19

20

France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, at p. 217. Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, art. 11(2).

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acts committed by their nationals, and over acts of which their own nationals are victims,21 even outside their own territory. Defining an oVence as an ‘international crime’ authorises some form of international jurisdiction. This may take the form either of an international tribunal as such, or of prosecution by courts of a State that has no significant connection with the oVence, something which is known as ‘universal jurisdiction’. Views on this subject have evolved considerably over the years. There is now much support for the position that international law entitles the exercise of universal jurisdiction for the three core crimes, namely genocide, crimes against humanity and war crimes, although the views of judges of the International Court of Justice were inconsistent when they were canvassed on this subject in early 2002.22 It is useful to recall that in 1948, the United Nations General Assembly rejected the concept of universal jurisdiction over genocide.23 This had been proposed by the authors of the original resolutions in the General Assembly, who lamented in their first draft the fact that ‘genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned’.24 They failed in their eVorts to obtain a declaration from the General Assembly that would change this situation, with the result that article VI of the Genocide Convention says: ‘Persons charged with genocide or any of the other acts enumerated in article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.’25 Yet even the fact that article VI of the Genocide Convention authorises prosecution by ‘such international penal tribunal’ does

21

22

23

24 25

SS Lotus (France v. Turkey), [1927] PCIJ Ser. A No. 10 (Judgment No. 9) (7 September 1927). See: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 14 February 2002, Separate Opinion of Judge Bula-Bula, Separate Opinion of President Guillaume, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Separate Opinion of Judge Koroma, Dissenting Opinion of Judge Oda, Declaration of Judge Ranjeva, Separate Opinion of Judge Rezek, Dissenting Opinion of Judge Van den Wyngaert. These were individual opinions and, strictly speaking, only obiter dicta. The matter is raised directly in pending litigation before the International Court of Justice: Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France), Application, 9 December 2002. William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge University Press, 2000, pp. 353–358. UN Doc. A/BUR/50. Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277.

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not resolve diYculties with respect to the ad hoc tribunals because none of them properly ‘accepted’ the jurisdiction of these institutions.26 The third significant result of the recognition of an oVence as an international crime is that it imposes duties upon States with respect to investigation, prosecution and extradition. This is sometimes expressed with a Latin expression, aut dedere aut judicare (literally, extradite or prosecute). While related to the concept of universal jurisdiction, the two should not be confused; aut dedere aut judicare imposes an obligation, whereas universal jurisdiction is merely an option available to States. The duty to prosecute or extradite is recognised in some major treaties, and it is therefore beyond question that in these cases States have willingly and intentionally accepted such obligations. The four Geneva Conventions of 1949 contain provisions dealing with a subset of violations known as ‘grave breaches’; they require that ‘[e]ach High Contracting Party . . . search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and . . . bring such persons, regardless of their nationality, before its own courts’. Alternatively, a State may, ‘if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case’.27 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment imposes something similar.28 It has been argued that these obligations to prosecute or extradite are also imposed by customary international law with respect to a much broader range of international crimes. While this may be a desirable result, from the standpoint of the protection of human rights, in all honesty it is diYcult to find any real evidence in the practice of States to suggest that they consider themselves to be under such obligations. The final significant result of the classification of an act as an international crime is a relaxation of the rules on immunities. The Charter of the Nuremberg Tribunal declared that ‘[t]he oYcial position of defendants, whether as Heads of State or responsible oYcials in Government Departments, shall not

26

27

28

In the case of Sierra Leone, this issue does not arise because genocide is not within the Special Court’s subject-matter jurisdiction. Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 146. Also: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1949) 75 UNTS 31, art. 49; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 85, art. 50; Convention Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, art. 129. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, annex, art. 5(2).

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be considered as freeing them from responsibility or mitigating punishment’.29 More recently, article 27 of the Rome Statute of the International Criminal Court says much the same thing.30 But in the Yerodia case of February 2002, the International Court of Justice recalled that even in the case of genocide, crimes against humanity and war crimes, courts could not exercise jurisdiction over the head of another State, even after he or she had left oYce. The only exception, said the International Court of Justice, would be litigation concerning acts performed ‘in a private capacity’.31 The elimination of sovereign immunity as a bar to jurisdiction or as a defence is set out explicitly in the statutes of the three tribunals. With respect to the two ad hoc tribunals, this clearly applies to the heads of State of any country (or at least any United Nations Member State), precisely because the United Nations Security Council establishes the tribunals. In Yerodia, the International Court of Justice stated quite explicitly that head of State immunity did not obtain before the two ad hoc tribunals for the former Yugoslavia and Rwanda.32 Moreover, both have proceeded against heads of State or heads of government in their respective territories, and without the consent of the States concerned.33 As for the Special Court for Sierra Leone, the issue is slightly more complicated. If the view is taken that the Special Court for Sierra Leone is, in eVect, a form of delegation of national jurisdiction to an international body by the Government of Sierra Leone, then the provision in the Court’s Statute that takes away sovereign immunity can only be applicable to the head of State of Sierra Leone. If, on the other hand, the Special Court for Sierra Leone is viewed as a genuinely international tribunal similar in nature to the other ad hoc tribunals, then it may exercise jurisdiction over ‘foreign’ heads of State without obstacle. This question was debated vigorously before the Special Court for Sierra Leone. 29

30 31

32

33

Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 7. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, para. 61. This largely overturned a somewhat more liberal ruling by the United Kingdom’s House of Lords in the celebrated Pinochet case. In R v. Bartle and the Commissioner of Police for the Metropolis and others, ex parte Pinochet Ugarte, [1999] 2 All ER 97 (HL), a majority of the House of Lords said ‘[s]uch immunity is only in respect of ‘‘oYcial’’ acts performed in the exercise of his functions’. There is a gap between the two tests, as dissenting Judge Van den Wyngaert observed: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Dissenting Opinion of Judge Van den Wyngaert, 14 February 2002, para. 36. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, para. 61. Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras. 26–34; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998.

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On 31 May 2004, a three-member bench of the SCSL Appeals Chamber concluded that it was indeed an international criminal tribunal ‘broadly similar’ to the ICC, the ICTY and the ICTR, ‘including in relation to the provisions confirming the absence of entitlement of any person to claim of immunity’. Consequently, ‘there is no reason to conclude that the Special Court should be treated as anything other than an international tribunal or court, with all that implies for the question of immunity for a serving Head of State’.34 The SCSL therefore rejected a challenge to jurisdiction by Charles G. Taylor, who had been the president of neighbouring Liberia when the indictment was issued. 34

Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 41.

6 Genocide

The crime of genocide is included, in identical provisions, within the subjectmatter jurisdiction of both the ICTY (article 4) and ICTR (article 2) but not within that of the SCSL. Already, when the ICTY was being contemplated, there had been widespread charges that genocide was being committed during the conflict in Bosnia and Herzegovina. As early as August 1992, the Commission on Human Rights called on States ‘to consider the extent to which the acts committed in Bosnia and Herzegovina and in Croatia constitute genocide’.1 In its December 1992 resolution on the situation in Bosnia and Herzegovina, the United Nations General Assembly described ‘ethnic cleansing’ as a form of genocide.2 Nevertheless, the Security Council resolution creating the ICTY, adopted on 8 May 1993, did not refer to genocide.3 As for Rwanda, despite hesitation within the Security Council to use the ‘g-word’ to describe the atrocities as they unfolded in April 1994,4 it soon became evident that the most significant manifestation of genocide since the destruction of the European Jews during the 1940s was well underway. By the time the ICTR was created, in November 1994, the term ‘genocide’ had been used by the Special Rapporteur of the Commission on Human Rights,5 the Commission of Experts,6 and even the Security Council itself (for the first time in its history).7 When the Security Council created the ICTR, in somewhat marked

1

2 3 4

5

6

7

‘Situation of Human Rights in the Territory of the Former Yugoslavia’, UN Doc. A/RES/ 47/147. ‘The Situation in Bosnia and Herzegovina’, UN Doc. A/RES/47/121. Ibid. Samantha Power, ‘A Problem From Hell’: America and the Age of Genocide, New York: Basic Books, 2002. UN Doc. E/CN.4/1995/7 and Corr.1. The Special Rapporteur confirmed his findings of genocide on subsequent visits to Rwanda later the same year: UN Doc. E/CN.4/1995/12, UN Doc. E/CN.4/1995/70. UN Doc. S/1994/1125, annex (preliminary report of 1 October 1994). See also: ‘Final Report of the Commission of Experts established pursuant to Security Council Resolution 935 (1994)’, UN Doc. S/1994/1405, annex. UN Doc. S/RES/925 (1994), preamble. The report of the inquiry commissioned by the Secretary-General concluded: ‘The delay in identifying the events in Rwanda as a genocide

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contrast with the ICTY, it expressed concern ‘that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda’,8 and said the Tribunal was established ‘for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law’.9 The Council listed genocide first in its enumeration of punishable crimes in the ICTR Statute, whereas it had placed genocide third in the ICTY Statute, after grave breaches and violations of the laws or customs of war. Although the SCSL Statute is modelled on that of the ICTR, the SecretaryGeneral chose to omit the crime of genocide. He explained why in his report: ‘Because of the lack of any evidence that the massive, large-scale killing in Sierra Leone was at any time perpetrated against an identified national, ethnic, racial or religious group with an intent to annihilate the group as such, the Security Council did not include the crime of genocide in its recommendation, nor was it considered appropriate by the Secretary-General to include it in the list of international crimes falling within the jurisdiction of the Court.’10 Essentially all of the prosecutions before the ICTR have involved charges of genocide. In one case, when a judge refused to authorise a charge of genocide within an indictment, the Prosecutor chose to withdraw the indictment rather than proceed to trial with a case that did not engage the priorities of the Tribunal.11 There have now been several convictions by the ICTR for what it has labelled ‘the crime of crimes’.12 Very few of the early prosecutions

8 9 10

11

12

was a failure by the Security Council. The reluctance by some States to use the term genocide was motivated by a lack of will to act, which is deplorable.’ ‘Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda’, UN Doc. S/1999/1257, enclosure (italics in the original). UN Doc. S/RES/955 (1994), preambular para. 3. Ibid., para. 1. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 13. Perhaps it is also of some significance that Sierra Leone has never ratified the Convention for the Prevention and Punishment of the Crime of Genocide. Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 16. Also: Akayesu (ICTR-96-4-T), Sentencing Judgment, 2 October 1998; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 451; Serushago (ICTR-98-39-S), Sentence, 5 February 1999, para. 15; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 981. The ICTR Appeals Chamber implied that it did not agree with the expression, given the lack of a hierarchy of crimes in the Statute: Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 367; Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 590. Subsequently, it cited the expression with approval: Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 53. See also: Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge

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before the ICTY included charges of genocide. At one point, the judges expressed their frustration, and urged the Prosecutor to include the charge within a specific indictment.13 The first case to come to trial led to acquittal on charges of genocide.14 Only in August 2001, in a case dealing with one of the commanders involved in the 1995 Srebrenica massacre, did the Tribunal finally convict a person of genocide.15 It was upheld on appeal,16 but there have been no further convictions, and three acquittals.17 All of these cases, some of them adjudicated by the Appeals Chamber, have led to the first substantial body of case law interpreting and applying the legal concept of genocide. Raphael Lemkin coined the word ‘genocide’ in his book on Nazi persecution in occupied Europe, published in 1944.18 The term was employed the following year by the prosecutors at Nuremberg (although not by the judges), and in 1946 genocide was declared an international crime by the General Assembly of the United Nations.19 The Assembly decide to proceed with the drafting of a treaty on genocide, which was completed in December 1948. In its articles II and III, the Convention for the Prevention and Punishment of the Crime of Genocide defines the crime of genocide and lists forms of participation in genocide as well as inchoate or incomplete versions of the crime, namely attempt, conspiracy and incitement.20 These provisions have been incorporated, with only slight technical modifications, into the statutes of the ICTY and ICTR: 1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article. 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

13

14 15 16 17

18

19 20

Wald, 5 July 2001, para. 2; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 800; Krstic´ (IT-98-33-A), Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004, para. 95. Nikolic´ (IT-94-2-R61), Review of Indictment Pursuant to Rule 61, 20 October 1995, para. 34. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999. Krstic´ (IT-98-33-T), Judgment, 2 August 2001. Krstic´ (IT-98-33-A), Judgment, 19 April 2004 (but for aiding and abetting). Stakic´ (IT-97-24-T), Judgment, 31 July 2003; Brðanin (IT-99-36-T), Judgment, 1 September 2004; Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005 (convicted of complicity in genocide). Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Washington: Carnegie Endowment for International Peace, 1944. GA Res. 96(I). Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277. On the drafting of the Genocide Convention, and its subsequent interpretation, see: William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge University Press, 2000.

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a. killing members of the group; b. causing serious bodily or mental harm to members of the group; c. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. imposing measures intended to prevent births within the group; e. forcibly transferring children of the group to another group. 3. The following acts shall be punishable: a. genocide; b. conspiracy to commit genocide; c. direct and public incitement to commit genocide; d. attempt to commit genocide; e. complicity in genocide.

The definition really begins with the introductory paragraph or chapeau of paragraph 2. There are several important components of this introductory paragraph, which is then followed by an exhaustive list of punishable acts. One important element that appears in the 1948 Convention is not reflected in the provisions within the Tribunal. Article 1 of the Convention says that genocide ‘whether committed in time of peace or in time of war, is a crime under international law’. Because the crime of genocide can be committed in peacetime, it is not, strictly speaking, a ‘serious violation of international humanitarian law’, despite the claim to the contrary in the preamble of the ICTY Statute. Certainly, there are periods within the temporal jurisdictions of both tribunals where it is doubtful that armed conflict was underway. In such cases, the war crimes provisions would be inapplicable, but the Tribunal would still, presumably, retain jurisdiction over the crime of genocide. There have been no cases where this issue has arisen.

Elements of the crime of genocide Intentional homicide can be prosecuted by the ICTY and the ICTR as a war crime (‘wilful killing’), a crime against humanity (‘murder’) and as genocide (‘killing’). But intentional homicide as genocide must be committed with the specific intent to destroy in whole or in part a national, ethnical, racial or religious group as such. The tribunals have called this genocide’s ‘special intent’21 or dolus specialis,22 terms familiar to jurists in common law and 21

22

Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 498, 499, 510, 517; Stakic´ (IT97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 29; Krstic´ (IT-98-33-A), Judgment, 19 April 2004, paras. 20, 35, 37, 133, 134, 140–143; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 86; Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, paras. 364, 365, 495. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 121, 226, 227, 245, 268; Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, para. 16. Also:

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continental criminal justice systems, respectively. According to one ICTY Trial Chamber, ‘special intent’ and dolus specialis can be used interchangeably.23 In its commentary on the 1996 Code of Crimes against the Peace and Security of Mankind, the International Law Commission qualified genocide’s specific intent as ‘the distinguishing characteristic of this particular crime under international law’.24 The Sikirica Trial Chamber accused the ICTY’s Prosecutor of unnecessarily complicating matters by introducing a debate about theories of intent, noting that the matter should be resolved with reference to the text of the provision: The first rule of interpretation is to give words their ordinary meaning where the text is clear. Here, the meaning of intent is made plain in the chapeau to Article 4(2). Beyond saying that the very specific intent required must be established, particularly in the light of the potential for confusion between genocide and persecution, the Chamber does not consider it necessary to indulge in the exercise of choosing one of the three standards identified by the Prosecution. In the light, therefore, of the explanation that the provision itself gives as to the specific meaning of intent, it is unnecessary to have recourse to theories of intent.25

Proof of intent may be inferred from the facts, the concrete circumstances, or a pattern of purposeful action.26 But, ‘[w]here an inference needs to be drawn, it has to be the only reasonable inference available on the evidence’.27 The intent of the perpetrator must be to ‘destroy’ the group. In Krstic´, a Trial Chamber said that ‘customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or

23 24

25

26

27

Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999; Jelisic´ (IT-95-10T), Judgment, 14 December 1999, para. 108; Stakic´ (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 29; Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 119; Krstic´ (IT-9833-A), Judgment, 19 April 2004, para. 141; Jelisic´ (IT- 95-10-A), Judgment, 5 July 2001, paras. 11, 31, 38, 42–45, 50–51; Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, para. 622. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 520. ‘Report of the International Law Commission on the Work of its Forty-eighth Session, 6 May–26 July 1996’, UN Doc. A/51/10, pp. 87–88. Also: ‘Report of the International Law Commission on the Work of its Forty-seventh Session, 2 May–21 July 1995’, UN Doc. A/ 50/10, p. 43, para. 79. Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 60. Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 704. Also: Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 526; Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 159. See also Krstic´ (IT-98-33-A), Judgment, 19 April 2004, paras. 33–34. Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 970 (emphasis in the original). Also: Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 41.

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sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.’28 In Rwanda, there has been ample evidence that it was physical destruction of the Tutsi that was contemplated. In the wars on the territory of the former Yugoslavia, many of the acts that were colloquially referred to as ‘ethnic cleansing’ suggested cultural genocide rather than physical genocide. Various judgments have wrestled with the distinction between ethnic cleansing and genocide. In his partially dissenting opinion in Krstic´, Judge Shahabuddeen distinguished between the punishable acts of genocide, which are physical and biological in nature, and the reference to intent in the chapeau, which does not rule out the destruction which is other than physical and biological.29 His views were endorsed in Blagojevic´, where an ICTY Trial Chamber said the term ‘destroy’ in the definition of genocide could encompass the forcible transfer of a population: The Trial Chamber finds in this respect that the physical or biological destruction of a group is not necessarily the death of the group members. While killing large numbers of a group may be the most direct means of destroying a group, other acts or series of acts, can also lead to the destruction of the group. A group is comprised of its individuals, but also of its history, traditions, the relationship between its members, the relationship with other groups, the relationship with the land. The Trial Chamber finds that the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself – particularly when it involves the separation of its members. In such cases the Trial Chamber finds that the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was. The Trial Chamber emphasises that its reasoning and conclusion are not an argument for the recognition of cultural genocide, but rather an attempt to clarify the meaning of physical or biological destruction.30

Obviously, this ICTY Trial Chamber was trying to skate around the fact that the Appeals Chamber had ruled that article 4 only covers physical or biological destruction. The reasoning here is deficient, because it rests on a speculative premise, namely that forcible transfer of individuals could lead to 28

29

30

Krstic´ (IT-98-33-T), Judgment, 2 August 2001, paras. 576, 580. Also: Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 25; Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 694; Semanza (ICTR- 97-20-T), Judgment and Sentence, 15 May 2003, para. 315; Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 808. Krstic´ (IT-98-33-A), Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004, paras. 45–54. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 666.

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the material destruction of the group. In fact, many things could lead to the disappearance of a group. That is not the issue. Article 4 asks the tribunal to determine whether the accused intended to destroy the group and whether this might result from his or her acts or omissions. When the question is presented in this manner, it should be clear that the real debate is about whether the forced deportation of civilians leads to the conclusion that the perpetrators intended the material destruction of the group. Absent other indications, it is surely too much to presume this; precisely the opposite conclusion is just as plausible, the deportation providing evidence that the perpetrator intended to ensure the survival of the group rather than its disappearance. In a judgment issued a few months after Krstic´ and a few months before Blagojevic´, the accused was acquitted of genocide after an ICTY Trial Chamber found there was insuYcient evidence of genocidal intent. It warned of the danger of conflating the intent of forcible displacement with that of physical destruction.31 The decisions in Blagojevic´ and Brðanin reflect the two extremes on the issue in the aftermath of the Appeals Chamber ruling in Krstic´. The Prosecutor did not appeal the portions of the Brðanin judgment dealing with genocide, perhaps out of fear that the Appeals Chamber might narrow the precedent established in Krstic´. The fact remains that on the diYcult issue of distinguishing between forcible displacement (‘ethnic cleansing’) and genocide, the case law remains inconsistent.32 The Rome Statute’s detailed provision on the mental element of crimes, including genocide, states that ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge’. If the punishable act involves ‘conduct’, the oVender must ‘mean . . . to engage in the conduct’; if it involves a ‘consequence’, the oVender must either ‘mean . . . to cause that consequence’ or be ‘aware that it will occur in the ordinary course of events’. ‘Knowledge’, on the other hand, ‘means awareness that a circumstance exists or a consequence will occur in the ordinary course of events’.33 Because the definition of genocide refers to the specific intent, the issue of ‘knowledge’ has not attracted much judicial attention, although there is surely an implied finding in all of the ICTR convictions for genocide that the oVender knew the destruction of the group would occur in the ordinary

31 32

33

Brðanin (IT-99-36-T), Judgment, 1 September 2004, paras. 969–991. Within days of Blagojevic´, an expert committee established by the United Nations and presided by former ICTY President Antonio Cassese determined that while forcible displacement was taking place in the Darfur region of Sudan, it could not be described as genocide. See: ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004’, Geneva, 25 January 2005. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 30.

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course of events. The distinction between intent and knowledge is fundamental to the reasoning of the ICTY Appeals Chamber, however. In Krstic´, the ICTY Appeals Chamber concluded that while the accused lacked the intent to commit genocide, he had knowledge that others intended to commit it and he aided and abetted them.34 For many lawyers, this nuance is of little more than technical significance, because a person who assists another knowing the intent of the primary perpetrator in eVect also intends to commit the oVence. However, for some critics a conviction for genocide based upon aiding and abetting, when it is conceded that the accused did not intend to commit genocide, is fundamentally flawed.35 The intent must be to destroy ‘a national, ethnical, racial or religious group’. The overarching theme of the wars in Rwanda and the former Yugoslavia was ethnic conflict, but both tribunals have been vexed somewhat by categorising the victims. In its early judgments, the ICTR seemed to have diYculty describing Rwanda’s Tutsi minority as a national, ethnical, racial or religious group, and attempted to resolve the problem with an expansive interpretation of the expression. It said that genocide could be committed against any ‘stable and permanent group’, although it ultimately accepted the qualification of the Tutsi as an ‘ethnic group’.36 Although much heralded in 1998 for enlarging the narrow bounds of the definition in the 1948 Convention, the Akayesu Trial Chamber’s conclusion that all ‘permanent and stable’ groups was never followed by other Trial Chambers of either of the tribunals.37 ICTR Trial Chambers now generally satisfy themselves by taking judicial notice of the fact that in Rwanda in 1994 the Tutsi were recognised as an ethnic group.38 In Krstic´, the Trial Chamber concluded that the victims were members of the ‘national group’ of Bosnian Muslims.39 The ICTY has noted that the crime of genocide in many respects fits within the international legal protection of national minorities, and that the concept of ‘national, ethnic, racial or religious’ groups should be interpreted in this context.40 This approach indicates a quite diVerent view of the philosophical basis for the crime of genocide than the ‘stable and permanent’ groups theory of the ICTR. Persecution and destruction of a broader spectrum of groups, such as 34

35

36 37

38 39 40

Krstic´ (IT-98-33-A), Judgment, 19 April 2004, paras. 134, 140; Ntakirutimana (ICTR-9610-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 500. Gue´nae¨l Mettraux, International Crimes and the Ad Hoc Tribunals, Oxford: Oxford University Press, 2005, pp. 212–215. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 428–429. But note the revival of this theory by the Darfur Commission: ‘Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur’, UN Doc. S/2005/60, para. 498. Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 817. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 559. Ibid., paras. 555–556. Also: Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 682.

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political and social groups, is adequately addressed within the parameters of crimes against humanity. The tribunals have moved towards a subjective approach in determining the existence and identity of the group. If the perpetrator, or the victim, considers that the group exists, these are very compelling indicators for the application of the crime of genocide.41 The analysis involves a combination of both subjective and objective factors, on a case-by-case basis. ‘This is so’, wrote an ICTY Trial Chamber, ‘because subjective criteria alone may not be suYcient to determine the group targeted for destruction and protected by the Genocide Convention, for the reason that the acts identified in subparagraphs (a) to (e) of Article 4(2) must be in fact directed against ‘‘members of the group’’.’42 It is only necessary to prove that the perpetrator intended to destroy the group ‘in part’. The tribunals have interpreted this by adding the adjective ‘substantial’, which indicates a quantitative dimension, or ‘significant’, which suggests a qualitative dimension. The ICTR, in Kayishema and Ruzindana, said that ‘in part’ requires ‘the intention to destroy a considerable number of individuals’.43 An ICTY Trial Chamber said that genocide must involve the intent to destroy a ‘substantial’ part, although not necessarily a ‘very important part’.44 In another judgment, the Tribunal referred to a ‘reasonably substantial’ number relative to the group as a whole.45 The Krstic´ Trial Chamber held that genocide could be committed with respect to the ‘Bosnian Muslims of Srebrenica’ because the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such. A campaign resulting in the killings, in diVerent places spread over a broad geographical area, of a finite number of members of a protected group might not thus qualify as genocide, despite the high total number of casualties, because it would not show an intent by the perpetrators to target the very existence of the group as such.46 41

42 43

44

45

46

Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 317; Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 811. Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 684 (references omitted). Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 97. Cited in: Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 64; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 586. Jelisic´ (IT-95-10-T), Judgment, 19 October 1999; also Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, paras. 56–59. Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 65. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 590.

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The intent requirement that the destruction contemplate the group ‘in whole or in part’ should not be confused with the scale of the participation by an individual oVender. The accused may only be involved in one or a few killings or other punishable acts. No single accused, as the principal perpetrator of the physical acts, could plausibly be responsible for destroying a group in whole or in part. Some judgments have also held that it is enough to target a ‘significant’ part of the group, such as its religious or political elite. This rather novel approach originated in the Commission of Experts,47 and was adopted by the ICTY Prosecutor in several indictments.48 It was subsequently endorsed by a Trial Chamber in Jelisic´, which held that it might be possible to infer the requisite genocidal intent from the ‘desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such’.49 The same scenario, involving relatively small numbers of killings in concentration camps, returned in Sikirica, but as in Jelisic´, the judges could not discern any pattern in the camp killings that suggested the intent to destroy a ‘significant part of the local Muslim community so as to threaten its survival’. The victims were taxi drivers, schoolteachers, lawyers, pilots, butchers and cafe´ owners but not, apparently, community leaders. The Trial Chamber observed that ‘they do not appear to have been persons with any special significance to their community, except to the extent that some of them were of military age, and therefore could be called up for military service’.50 In Krstic´ the Trial Chamber seemed convinced by prosecution arguments whereby the men and boys of military age, who were the victims of the Srebrenica massacre of July 1995, were the ‘significant part’ of the Muslim community. This is not the same as the ‘leadership’, although the reasoning is similar, as is the ‘decisive eVect on the group’s survival’ criterion. The Krstic´ judgment explains:

47

48

49 50

‘Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)’, UN Doc. S/1994/674, annex, para. 94. The Commission was inspired by the Whitaker report: Benjamin Whitaker, ‘Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide’, UN Doc. E/CN.4/Sub.2/1985/6, para. 29. Karadzˇic´ et al. (IT-95-18-R61, IT-95-5-R61), Transcript, 27 June 1996, p. 15 (the Prosecutor (Eric Ostberg) noted that he relied on Benjamin Whitaker, ‘Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide’, UN Doc. E/CN.4/Sub.2/1985/6, para. 19); Jelisic´ et al. (IT-95-10-I), Indictment, 21 July 1995, para. 17; Jelisic´ et al. (IT-95-10-I), Amended Indictment, 12 May 1998, para. 16; Jelisic´ et al. (IT-95-10-I), Second Amended Indictment, 19 October 1998, para. 14. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 82. Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 80.

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Granted, only the men of military age were systematically massacred, but it is significant that these massacres occurred at a time when the forcible transfer of the rest of the Bosnian Muslim population was well under way. The Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group. Their death precluded any eVective attempt by the Bosnian Muslims to recapture the territory. Furthermore, the Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society, an impact the Chamber has previously described in detail. The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.51

The recent authorities that develop the ‘significant part’ interpretation use the phenomenon of selective killing of certain segments of a group as evidence of intent to destroy the group as a whole, assuming it is predicated on a calculation that destruction of the ‘significant’ members of the group will irrevocably compromise the existence of what remains. The same reasoning does not apply to destruction of a ‘substantial part’, because it accepts the possibility that the perpetrators may only intend to destroy a part of the group. Of course, there is no reason why destruction of the leadership, that is, of a ‘significant’ part, could not provide proof of intent to destroy a ‘substantial’ part of a particular group. The Appeals Chamber has held that there is no need to establish a ‘plan’ to commit genocide. This means that it is possible to establish genocide without any evidence of State involvement, or of that of an organised State-like entity. In Jelisic´, the ICTY entertained the rather bizarre possibility that an individual acting alone could have committed genocide.52 According to the Appeals Chamber, ‘the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime.’53 In another case, the Appeals Chamber referred to this paragraph in support of its conclusion not to require proof of a ‘plan or policy’ with respect to crimes against humanity.54 This broadening of the scope of both

51 52 53 54

Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 595. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 100. Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 48. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 98, fn. 114.

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genocide and crimes against humanity has apparently not been well received by many States, and ‘contextual elements’ requiring a plan or policy are part of the law of the International Criminal Court.55 The enigmatic words ‘as such’ were interpreted by the Appeals Chamber in Niyitegeka. The Appeals Chamber noted that these words had been included in article II of the 1948 Genocide Convention so as to resolve an impasse among the negotiators as to whether or not proof of genocidal motive should be added to the requirement of a specific or special intent. It said the expression has ‘eVet utile of drawing a clear distinction between mass murder and crimes in which the perpetrator targets a specific group because of its nationality, race, ethnicity or religion’.56 But the words ‘as such’ do not prohibit a conviction for genocide ‘in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context’.57

Punishable acts of genocide Article II of the 1948 Genocide Convention, and its counterparts in the statutes of the ICTY and ICTR, lists five punishable acts of genocide. Each one of these acts has its own mental and physical elements, which must be proven in addition to the elements in the introductory paragraph or chapeau for there to be a conviction. The list is an exhaustive one, and does not permit other acts that might result in the destruction of a protected group.

Killing In the first major genocide case before the ICTR, a Trial Chamber said the act of killing consisted of two material elements: the victim is dead and the death resulted from an unlawful act or omission of the accused or a subordinate.58 The oVender must intend this result or recklessly disregard the likelihood death will result from such acts or omissions. In Akayesu, an 55

56

57

58

The International Criminal Court’s ‘Elements of Crimes’, ICC-ASP/1/3, p. 113, require that genocide be committed ‘in the context of a manifest pattern of similar conduct’. This text was adopted in the wake of the Jelisic´ Trial Chamber decision and was probably a reaction to it. Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 53. Citing: William A. Schabas, Genozid im Vo¨lkerrecht, Hamburg: Hamburger Institute, 2003, pp. 340– 341; Schabas, Genocide in International Law, pp. 254–255. Ibid. Also: Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 363. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 589. In Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 101–104, another Trial Chamber purported to discuss the actus reus of ‘killing’, but in fact addressed only the diYculties in defining the mental element.

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ICTR Trial Chamber said the English term ‘killing’ was ‘too general’, and that the ‘more precise’ French term meurtre should be applied. This reasoning was supported with reference to the Rwandan Penal Code, as well as the canon of interpretation by which the accused should benefit from the more favourable version.59 But in Kayishema and Ruzindana, a diVerently constituted Trial Chamber of the same tribunal said there was ‘virtually no diVerence between the term ‘‘killing’’ in the English version and ‘‘meurtre’’ in the French version’.60 This view was upheld on appeal, the Appeals Chamber noting ‘that if the word ‘‘virtually’’ is interpreted in a manner that suggests a diVerence, though minimal, between the two terms, it would construe them both as referring to intentional but not necessarily premeditated murder, this being, in its view, the meaning to be assigned to the word ‘‘meurtre’’’.61 DiVerent terms are used elsewhere within the statutes to describe the crime of intentional homicide. In eVect, the act of genocide of ‘killing’ has the same underlying elements as the crime against humanity of ‘murder’, the grave breach of ‘wilful killing’ and the war crime of ‘murder’,62 subject of course to the various contextual elements of each category of oVence. Accordingly, the analysis of the act of genocide of ‘killing’ draws upon relevant precedents from these other categories. The Prosecutor must prove that the death of a person resulted from the actions or omissions of the accused. The actions or omissions need not be the sole cause of death, but they must be ‘a substantial cause’.63 To establish the mens rea or mental element of the oVence, there must be evidence ‘that the accused had the intent to kill’.64 Alternatively, it is suYcient to demonstrate ‘that the accused intended to inflict serious bodily injury in reckless disregard of human life’.65 While there must be proof that a person is dead, this can be 59

60 61 62

63

64 65

Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 500–501. Also: Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 50; Musema (ICTR-9613-T), Judgment and Sentence, 27 January 2000, para. 155; Bagilishema (ICTR-95-1AT), Judgment, 7 June 2001, para. 57. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 104. Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 151. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323–324; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, paras. 229, 236; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 153. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323–324; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, paras. 236, 229; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 153; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 424; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 215; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 485; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 324; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 35. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 229. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 36; Delalic´ et al. (IT-9621-A), Judgment, 20 February 2001, para. 422; Kordic´ et al. (IT-95-14/2-T), Judgment, 26

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inferred, and it is not necessary to actually show that the body was recovered. It has been held that causing the suicide of a person may amount to murder where the accused acts or omissions ‘induced the victim to take action which resulted in his death, and that his suicide was either intended, or was an action of a type which a reasonable person could have foreseen as a consequence’.66

Causing serious bodily or mental harm In Akayesu, the ICTR held the term ‘serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution’.67 Another Trial Chamber of the ICTR defined this as ‘harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses’.68 The Trial Chamber of the ICTY has likewise considered torture and inhuman or degrading treatment to fall within the provision’s scope.69 It has been held that ‘inhuman treatment . . . and deportation are among the acts which may cause serious bodily or mental injury’.70 According to an ICTR Trial Chamber in Akayesu, rape and sexual violence may constitute genocide on both a physical and a mental level.71 In Akayesu, the Trial Chamber aYrmed that rape and other crimes of sexual violence may fall within the ambit of paragraph (b) of article 2(1) of the ICTR Statute: [T]he Chamber wishes to underscore the fact that in its opinion, they constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a

66

67 68 69

70 71

February 2001, paras. 229, 236; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998. The same principles are aYrmed in case law concerning the crime against humanity of murder: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 589; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 80–81; Musema (ICTR96-13-T), Judgment and Sentence, 27 January 2000, para. 215. Kayishema et al. (ICTR95-1-T), Judgment and Sentence, 21 May 1999, paras. 136–140; Bagilishema (ICTR-951A-T), Judgment, 7 June 2001, para. 84; Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 560; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 485; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 217; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 35. Acknowledgement that killing may involve recklessness eVectively rules out any requirement of premeditation. The debate on this issue is considered under the heading of crimes against humanity, below at p. 198. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 326 (referring to ‘murder’, but the same considerations apply to ‘wilful killing’). Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 504. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 109. Karadzˇic´ et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 93. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 513. For a review of the authorities on this question, see: Sherrie L. Russell-Brown, ‘Rape as an Act of Genocide’, (2003) 21 Berkeley Journal of International Law 350.

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particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflict[ing] harm on the victim as he or she suVers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them. A Tutsi woman, married to a Hutu, testified before the Chamber that she was not raped because her ethnic background was unknown. As part of the propaganda campaign geared to mobilizing the Hutu against the Tutsi, the Tutsi women were presented as sexual objects. Indeed, the Chamber was told, for an example, that before being raped and killed, Alexia, who was the wife of the Professor, Ntereye, and her two nieces, were forced by the Interahamwe to undress and ordered to run and do exercises ‘in order to display the thighs of Tutsi women’. The Interahamwe who raped Alexia said, as he threw her on the ground and got on top of her, ‘let us now see what the vagina of a Tutsi woman tastes like’. As stated above, Akayesu himself, speaking to the Interahamwe who were committing the rapes, said to them: ‘don’t ever ask again what a Tutsi woman tastes like’. This sexualised representation of ethnic identity graphically illustrates that Tutsi women were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live, and of life itself. On the basis of the substantial testimonies brought before it, the Chamber finds that in most cases, the rapes of Tutsi women in Taba were accompanied with the intent to kill those women. Many rapes were perpetrated near mass graves where the women were taken to be killed. A victim testified that Tutsi women caught could be taken away by peasants and men with the promise that they would be collected later to be executed.72

Causing serious bodily or mental harm to members of the group does not necessarily mean that the harm is permanent and irremediable, but it needs to be serious.73 In Krstic´, the ICTY considered the ordeal inflicted on the few who 72 73

Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 731–733. Ibid., para. 502. Also: Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 108; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999,

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survived the Srebrenica massacre to fall within the ambit of bodily and mental harm. Even if the objective had been killing rather than inflicting bodily or mental harm, the Trial Chamber in eVect considered the result as a kind of ‘lesser and included’ oVence, noting this ‘was a natural and foreseeable consequence of the enterprise’.74 Another Trial Chamber, in Blagojevic´, also referring to the survivors of the Srebrenica massacre, said that the trauma and wounds suVered by those individuals who managed to survive the mass executions does constitute serious bodily and mental harm. The fear of being captured, and, at the moment of the separation, the sense of utter helplessness and extreme fear for their family and friends’ safety as well as for their own safety, is a traumatic experience from which one will not quickly – if ever – recover. Furthermore, the Trial Chamber finds that the men suVered mental harm having their identification documents taken away from them, seeing that they would not be exchanged as previously told, and when they understood what their ultimate fate was. Upon arrival at an execution site, they saw the killing fields covered of bodies of the Bosnian Muslim men brought to the execution site before them and murdered. After having witnessed the executions of relatives and friends, and in some cases suVering from injuries themselves, they suVered the further mental anguish of lying still, in fear, under the bodies – sometimes of relative or friends – for long hours, listening to the sounds of the executions, of the moans of those suVering in pain, and then of the machines as mass graves were dug.75

The same Trial Chamber also spoke of the serious mental harm that was done to the victims themselves, prior to their execution. Finally, it said that ‘the forced displacement of women, children, and elderly people was itself a traumatic experience, which, in the circumstances of this case, reaches the requisite level of causing serious mental harm under Article 4(2)(b) of the Statute’.76

Deliberately inflicting conditions of life calculated to destroy the group This act of genocide corresponds closely to the crime against humanity of extermination, where similar language has been used in the judgments.77 It

74 75 76

para. 51; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 156; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 59; Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 516; Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 690. See also: B. Bryant and R. Jones, ‘Codification of Customary International Law in the Genocide Convention’, (1975) 16 Harvard International Law Journal 686, at pp. 694–695. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 635. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 647. 77 Ibid., paras. 648–649. See below at pp. 199–201.

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refers to methods of destruction apart from direct killings such as subjecting the group to a subsistence diet, systematic expulsion from homes and denial of the right to medical services.78 It also includes circumstances that would lead to a slow death such as a lack of proper housing, clothing and hygiene or excessive work or physical exertion.79 In Kayishema and Ruzindana, an ICTR Trial Chamber said the conditions of life could also include rape.80 Several indictments have suggested that article 4(2)(c) of the ICTY Statute was breached by conditions in detention camps, where inmates were deprived of proper food and medical care and generally subjected to conditions ‘calculated to bring about the physical destruction of the detainees, with the intent to destroy part of the Bosnian Muslim and Bosnian Croat groups, as such’.81 In Sikirica, for example, the Prosecutor argued that the detainees in Keraterm had been ‘systematically’ expelled from their homes and had been forced to endure a subsistence diet. The medical care that they received – if any – was below the minimal standards to ensure their physical well-being. In short, the living conditions were totally insuYcient.82

A Trial Chamber in an examination under Rule 61 of the Rules of Procedure and Evidence endorsed one of these detention camp indictments,83 but none of the detention camp cases has resulted in a conviction.84

Imposing measures intended to prevent births A Trial Chamber of the ICTR, in Akayesu, considered that rape could be subsumed within paragraph (d) of the definition of genocide, as well as within paragraph (b).

78

79

80

81

82

83

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Stakic´ (IT-97-24-PT), Second Amended Indictment, 5 October 2001, para. 20; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 505–506. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 517; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 115–116. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 116. Also: Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 156–157. Kovacˇevic´ et al. (IT-97-24-I), Indictment, 13 March 1997, paras. 12–16; Kovacˇevic´ et al. (IT-97-24-I), Amended Indictment, 23 June 1998, paras. 28, 32. Also: Karadzˇic´ et al. (IT95-5-I), Indictment, 24 July 1995, paras. 18, 22; Meakic et al. (IT-95-4), Indictment, 13 February 1995, para. 18.3; Sikirica et al. (IT-95-8-I), Indictment, 21 July 1995, para. 12.3. Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 42. Karadzˇic´ et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996. Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999; Stakic´ (IT-97-24-T), Judgment, 31 July 2003.

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In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.85

This interpretation, which was inspired by the Report of the Commission of Experts, has always seemed a little far-fetched, especially considering that the crime of rape is more than adequately addressed under paragraph (b) as ‘causing serious bodily or mental harm’.

Forcibly transferring children The fifth and final act of genocide listed in the relevant provisions of the statutes, forcibly transferring children of the group to another group, has had no application in the context of the conflicts in the former Yugoslavia and Rwanda.

Complicity and inchoate forms of the oVence Paragraph 3 of the genocide provision in the ICTY and ICTR statutes corresponds to article III of the Genocide Convention. In addition to genocide per se, it says that conspiracy, direct and public incitement, attempt and complicity in genocide are also punishable. None of the other crimes within the jurisdiction of the two tribunals has such a provision. Instead, there is a general provision dealing with complicity that is applicable to all of the crimes within the jurisdiction of the tribunals.86

85

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Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 507–508. Also: Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 117; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 53; Musema (ICTR96-13-T), Judgment and Sentence, 27 January 2000, para. 158. Similar views are expressed in M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia, Irvington-on-Hudson, NY: Transnational Publishers, 1996, p. 588; Russell-Brown, ‘Rape as an Act of Genocide’, at p. 355. Below at pp. 296–314.

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With respect to genocide, there are legal diYculties that arise in reconciling the general provision on complicity in the statutes with the specific one applicable to genocide only. As a Trial Chamber explained in Krstic´, Article 4(3) [of the ICTY Statute] provides for a broad range of heads of criminal responsibility, including heads which are not included in Article 7(1), such as ‘conspiracy to commit genocide’ and ‘attempt to commit genocide’. By incorporating Article 4(3) in the Statute, the drafters of the Statute ensured that the Tribunal has jurisdiction over all forms of participation in genocide prohibited under customary international law. The consequence of this approach, however, is that certain heads of individual criminal responsibility in Article 4(3) overlap with those in Article 7(1).87

Three of the acts listed in paragraph (3) are inchoate or incomplete oVences, in that they can be committed even if the crime of genocide itself does not take place. This is the case for conspiracy, incitement and attempt. Genocide is the only crime within the statutes for which inchoate oVences are punishable generally.88

Conspiracy to commit genocide The legal significance of the term ‘conspiracy’ varies depending upon whether it is being used in the common law or continental systems. Although not apparent from the text of the provision in the statutes, or for that matter in the Genocide Convention itself, the drafting history of the Convention is quite clear that what is intended is conspiracy as it is meant in the common law system.89 This means that the Prosecutor must establish that two or more persons agreed upon a common plan to perpetrate genocide, irrespective of whether the crime was actually committed. Proof of the material element of the crime will obviously be facilitated by documentary evidence. But where this is lacking, circumstantial evidence of the common plan or conspiracy will be suYcient. According to an ICTR Trial Chamber, ‘[t]he agreement in a conspiracy is one that may be established by the prosecutor in no particular manner, but the evidence must show that an agreement had indeed been

87 88

89

Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 640. Arguably, article 3 of the ICTY Statute includes, implicity, the war crime of ordering that no quarter be given (pursuant to article 40 of Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3 and article 4(1) of Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609). Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 185–191; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 423; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 109.

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reached. The mere showing of a negotiation in process will not do.’90 In a charge of conspiracy to commit genocide under article 2(3)(b) of the Statute, the ICTR Trial Chamber stated that the ‘Prosecutor must be precise when formulating the counts in the indictment’ and ‘directed the Prosecutor to mention the names or other identifying information of the person or persons the accused is alleged to have conspired with, to commit genocide’.91 The best evidence of conspiracy may take the form of documents proving the agreement, or testimony by persons who participated in the conspiracy. But the ICTR has also taken various forms of circumstantial evidence to constitute proof of a conspiracy to commit genocide.92 In the Media case, for example, it said: The existence of a formal or express agreement is not needed to prove the charge of conspiracy. An agreement can be inferred from concerted or coordinated action on the part of the group of individuals. A tacit understanding of the criminal purpose is suYcient . . . Conspiracy to commit genocide can be inferred from coordinated actions by individuals who have a common purpose and are acting within a unified framework. A coalition, even an informal coalition, can constitute such a framework so long as those acting within the coalition are aware of its existence, their participation in it, and its role in furtherance of their common purpose . . . Conspiracy to commit genocide can be comprised of individuals acting in an institutional capacity as well as or even independently of their links with each other. Institutional coordination can form the basis of a conspiracy among those individuals who control the institutions that are engaged in coordinated action. The Chamber considers the act of coordination to be the central element that distinguishes conspiracy from ‘conscious parallelism’.93

Although there was undoubtedly a conspiracy to commit genocide in Rwanda, the ICTR has sometimes taken the position that a conviction should not be registered for conspiracy when the accused is also convicted of genocide as such.94 But in Niyitegeka, the accused was convicted of conspiracy to commit genocide after it was established that he met with various leaders of the interim government in April 1994, including Kayishema and Ruzindana, 90 91

92

93 94

Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 787. Nsengiyumva (ICTR-96-12-I), Decision on the Defence Motion Raising Objections on Defects in the Form of the Indictment and to Personal Jurisdiction on the Amended Indictment, 12 May 2000, para. 21. Nyiramasuhuko et al. (ICTR-98-42-T), Decision on Defence Motions for Acquittal Under Rule 98bis, 16 December 2004, para. 97. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1048. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 937–941. Another acquittal for conspiracy has been recorded, but because of insuYcient evidence: Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 801. In yet another case, charges were dismissed because the elements alleged in the

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to plan attacks against Tutsi in Bisesero, the whole with the intent to destroy the Tutsi ethnic group;95 he was found guilty of both conspiracy to commit genocide and of genocide. Judges in subsequent cases have noted the diVerent approaches, without taking sides.96

Direct and public incitement to commit genocide Incitement to commit a crime is a form of punishable complicity, sometimes labelled as ‘abetting’, to the extent that another person commits the crime itself. It is more unusual to punish incitement even in the absence of commission of the crime itself. In order to focus on the preventive dimension of the prohibition of genocide, the drafters of the 1948 Genocide Convention decided to make the inchoate crime of ‘direct and public incitement’ a punishable oVence. Direct and public incitement to commit genocide is an international crime, even in the absence of evidence that genocide was actually committed as a result of the incitement.97 It is included in article III of the 1948 Convention, and accordingly finds its way into paragraph 3 of article 4 of the ICTY Statute and article 2 of the ICTR Statute. The SCSL does not have jurisdiction over the crime of genocide. There have been no prosecutions for direct and public incitement by the ICTY, and it does not seem that hate propaganda, at least in its crudest manifestations, was a significant feature of the conflicts in the former Yugoslavia. The same cannot be said for Rwanda, where grotesque caricatures in racist newspapers and broadcast appeals to participate in killings marked the 1994 genocide.98 According to a Trial Chamber, in Akayesu, [t]he public element of incitement to commit genocide may be better appreciated in light of two factors: the place where the incitement occurred and whether or not assistance was selective or limited . . . The ‘direct’ element of incitement implies that the incitement assume a direct

95

96 97

98

indictment were ruled not to constitute a suYcient basis for a conviction on conspiracy: Ntagerura et al. (ICTR-99-46-T), Judgment and Sentence, 25 February 2004, paras. 70, 665, 668. Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 427. Jean Kambanda was also found guilty of conspiracy to commit genocide, but it was as a result of a guilty plea in which the legal issues were not debated, so the judgment is of diminished value as precedent: Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, para. 40(2). Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 793. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1029. Followed by the Supreme Court of Canada in Mugesera v. Canada (MCI), 2005 SCC 40, para. 85. See: William A. Schabas, ‘Hate Speech in Rwanda: The Road to Genocide’, (2000) 46 McGill Law Journal 141.

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form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement.99

A Trial Chamber dismissed a count of direct and public incitement to commit genocide at the close of the Prosecutor’s case when all that had been shown was that the accused told a municipal leader during an assembly at a stadium in Gisenyi that he should reinforce roadblocks and ‘warn his Muslim friends not to continue hiding Tutsi in their houses’.100 Because genocide was actually committed in Rwanda, prosecution for ‘direct and public incitement’ may seem inappropriate. Those who gave speeches or otherwise urged others to commit genocide, whether in public or in private, are guilty of complicity, which is covered by articles 2(3)(e) and 6(1) of the ICTR Statute. For this reason, many of the rulings of the ICTR Trial Chambers appeared to confuse the inchoate form of incitement with incitement as complicity, and the judgments convict oVenders of ‘direct and public incitement’ after concluding that genocide was actually committed.101 In Nahimana, a Trial Chamber said that evidence that genocide actually occurred would be helpful in confirming that those who incited genocide actually intended this, and this seems only to further confuse the point.102 The leading case on the use of hate propaganda to provoke the Rwandan genocide is that of Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, who were found guilty of both genocide and direct and public incitement to commit genocide. The three were involved in various media, including the radio station Radio-te´le´vision Libre Milles Collines (RTLM)103 and the racist newspaper Kangura. An example, broadcast on RTLM on 4 June 1994, at the height of the killing, and that was cited by the Tribunal, shows how blatant the appeals actually were:

99

100

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102 103

Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 556–557. Also Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 431; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 978. Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal, 2 February 2005, para. 23. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 560; Kambanda (ICTR-9723-S), Judgment and Sentence, 4 September 1998, para. 40; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 437; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000. An acquittal has been recorded for direct and public incitement, based both on the vagueness of the allegations and the insuYciency of the evidence: Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 438. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1029. The ICTR had earlier accepted the guilty plea of a Belgian journalist who had worked for RTLM during the genocide: Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000. Kambanda had also pleaded guilty to charges respecting his involvement with RTLM: Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 39.

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They should all stand up so that we kill the Inkotanyi [slang term for Tutsi] and exterminate them . . . The reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it.104

The judgment provides a detailed discussion of issues relating to hate propaganda in international law, and the tension that exists between the prohibition and the need to protect freedom of expression. The Trial Chamber notes that ‘freedom of expression and freedom from discrimination are not incompatible principles of law’.105 In a conclusion of interest not only for international criminal law but also for international human rights law, the Chamber said ‘hate speech that expresses ethnic and other forms of discrimination violates the norm of customary international law prohibiting discrimination’.106

Attempted genocide There have been no indictments for attempt to commit genocide.

Complicity in genocide Complicity in the commission of genocide refers to various forms of ‘secondary’ participation in the crime. The reference to complicity in paragraph 3(e) of the genocide provision overlaps with article 7(1) of the ICTY Statute and article 6(1) of the ICTR Statute, which state that ‘[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime listed in the statutes shall be individually responsible for the crime’. Described as ‘redundancy’ in some judgments, it would appear that no particular significance was attached to this when the statutes were being drafted, and that it is the innocent consequence of the verbatim incorporation of article III of the Genocide Convention in the statutes.107 An ICTY Trial Chamber, in Stakic´, considered the ‘overlap’ between article 7(1) and article 4(3)(e), describing the latter as lex specialis and the former as lex generalis. Under general principles of law, this means that in the event of conflict between the two principles, the more specialised provision should take precedence. But the Trial Chamber also considered an alternative approach to interpretation, by which the two 104 105 106

107

Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 959. Ibid., para. 1074. Ibid., para. 1076. See: Gregory S. Gordon, ‘A War of Media, Words, Newspapers and Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International Law of Hate Speech’, (2004) 24 Virginia Journal of International Law 139. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 640; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 391.

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provisions are harmonised. In this way, the modes of complicity set out in some detail in article 7(1) are simply read into the more laconic terms of article 4(3)(e). Either way, the Trial Chamber said that the result would be the same.108 An ICTR Trial Chamber, in Semanza, said that there is no material distinction between complicity in genocide and ‘the broad definition accorded to aiding and abetting’.109 The ICTY Appeals Chamber, in Krstic´, said that ‘the two provisions [article 7(1) and article 4(3)] can be reconciled, because the terms ‘‘complicity’’ and ‘‘accomplice’’ may encompass conduct broader than that of aiding and abetting’.110 Subsequently, a Trial Chamber noted that this comment was obiter dicta, holding that complicity in genocide should be equated with aiding and abetting genocide.111 This appears now to be the view of the ICTR Appeals Chamber which, in Ntakirutimana, held that ‘aiding and abetting constitutes a form of complicity, suggesting that complicity under Article 2 of the ICTR Statute and Article 4 of the ICTY Statute would also encompass aiding and abetting’.112 The charge of complicity in genocide has not proven to be particularly significant, because as a general rule persons found guilty of complicity in genocide are also convicted as perpetrators of genocide.113 Because complicity requires the existence of a principal perpetrator, two decisions focused not on the acts of the accused so much as on the presence of genocide committed by others. This inquiry has led to several acquittals. In eVect, the Prosecutor failed to prove that genocide had been committed within camps in the former Yugoslavia, with the consequence that the accused could not be convicted for conspiracy in genocide.114 Aiding and abetting is discussed in detail in chapter 9.115 108

109 110 111

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Stakic´ (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 48. Also: Stakic´ (IT-97-24- T), Judgment, 31 July 2003, para. 531. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 394. Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 139. Milosˇevic´ (IT-02- 54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 297. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 500. E.g., Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 652; Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 461. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999; Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 561. See pp. 302–314.

7 Crimes against humanity

Crimes against humanity are at the core of the subject-matter jurisdiction of the three tribunals.1 According to the 2005 Darfur Commission, crimes against humanity ‘are particularly odious oVences constituting a serious attack on human dignity or a grave humiliation or degradation of one or more human beings (for instance, murder, extermination, enslavement, deportation or forcible transfer of population, torture, rape and other forms of sexual violence, persecution, enforced disappearance of persons)’.2 Not only are crimes against humanity the common denominator of the three statutes, they are also central to virtually all of the indictments. Genocide is often described as an aggravated form of crime against humanity, and while such statements may be an oversimplification, that the two categories of crime are cognates can be seen from the indictment policy of the Prosecutors and the judgments themselves. There have been no convictions for genocide where a conviction for crimes against humanity could not also have been sustained. Similarly, it is extremely rare for any of the tribunals to convict a person for war crimes that are not accompanied by charges of crimes against humanity.3 The real ‘umbrella rule’ of the tribunals is the prohibition of crimes against humanity, a relatively broad concept that captures most forms of atrocity committed against innocent civilians, including war crimes in the classic sense.4 If the statutes of the three tribunals only contemplated crimes against humanity within their subject-matter 1

2

3

4

Generally, see: Simon Chesterman, ‘An Altogether DiVerent Order: Defining the Elements of Crimes Against Humanity’, (2000) 10 Duke Journal of Comparative and International Law 307; M. Cherif Bassiouni, Crimes Against Humanity, 2nd edn, Dordrecht/ Boston/London: Kluwer Law, 1999; Gue´nae¨l Mettraux, International Crimes and the Ad Hoc Tribunals, Oxford: Oxford University Press, 2005, pp. 147–192. ‘Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur’, UN Doc. S/2005/60, para. 178. In fact, there is only one conviction for war crimes [along with crimes against humanity]: Strugar (IT-01-42-T), Judgment, 31 January 2005. In Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003, the accused was convicted of the crime against humanity of ‘inhumane acts’ for shelling of and sniping at civilians in Sarajevo.

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jurisdiction, this would change little in terms of their operations, except to reduce the length of trials and the legal debates about arcane subjects. Crimes against humanity also have much in common with international human rights law, and the language in the relevant provisions reflects this. Prosecutions for crimes against humanity have provided the tribunals with the opportunity to turn ‘a set of abstract concepts into a fully fledged and well-defined body of law’.5 Given the generality of the concept of crimes against humanity, it is striking that the provisions in the three statutes are all so diVerent from one another. The first of the three to be adopted, article 5 of the ICTY Statute, is very broadly modelled on article 6(c) of the Nuremberg Charter, which was the first codification of crimes against humanity:6 The International Tribunal [for the former Yugoslavia] shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: a. murder; b. extermination; c. enslavement; d. deportation; e. imprisonment; f. torture; g. rape; h. persecutions on political, racial and religious grounds; i. other inhumane acts.

The Nuremberg Charter did not list, as punishable acts, either imprisonment or rape. The inclusion of rape in the ICTY and ICTR statutes has often been cited as a progressive development in international criminal law.7 The Nuremberg Charter also required a link or nexus with ‘any crime within the jurisdiction of the Tribunal’, which had the practical consequence of preventing convictions except for crimes against humanity committed in association

5 6

7

Mettraux, International Crimes and the Ad Hoc Tribunals, p. 148. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 6(c): ‘Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the court where perpetrated.’ E.g., Theodor Meron, ‘War Crimes in Yugoslavia and the Development of International Law’, (1994) 88 American Journal of International Law 78, at p. 84.

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with the war itself.8 Although Nuremberg heard much evidence about pre1939 persecution of the Jews and others, no convictions for any of these acts were entered because they occurred prior to the outbreak of the war. Using diVerent language, the introductory paragraph of article 5 of the ICTY Statute appears to seek the same result, specifying that crimes against humanity must be ‘committed in armed conflict, whether international or internal in character’. Article 3 of the ICTR Statute presents an identical list of punishable acts, but its introductory paragraph diVers slightly from article 5 of the ICTY Statute. The word ‘directed’ is replaced with ‘as part of a widespread or systematic attack’. Moreover, the reference to armed conflict is eliminated, but another requirement is added, namely that the attack be committed on ‘national, political, ethnic, racial or religious grounds’. Article 2 of the SCSL Statute makes two changes to the list of punishable acts. To ‘rape’, a list of other gender crimes is added: ‘sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence’. The paragraph on ‘persecution’ adds the word ‘ethnic’ to the other three grounds, and replaces ‘and’ with ‘or’. Both of these changes seem inspired by the language in article 7 of the Rome Statute. The preliminary paragraph in the SCSL’s crimes against humanity provision is essentially the same as article 3 of the ICTR Statute, except that the reference to ‘national, political, ethnic, racial or religious grounds’ has been deleted, in keeping with contemporary case law.

Presence of an armed conflict Only the ICTY Statute refers to the presence of armed conflict, stating in the introductory paragraph to article 5 that crimes against humanity are punishable ‘when committed in armed conflict, whether international or internal in character’. Without much doubt, it can be stated that the drafters of the ICTY Statute believed that such a limitation was imposed by customary international law, and that to prosecute crimes against humanity in the absence of armed conflict would violate the maxim nullum crimen sine lege.9 In Tadic´, the Appeals Chamber said this requirement of armed conflict was

8

9

For a discussion of the history of crimes against humanity, see Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, 7 October 1997. For a more detailed review: Bassiouni, Crimes Against Humanity. See the Secretary-General’s report: ‘Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.’ ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 47.

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inconsistent with customary law,10 and its holding was subsequently endorsed in the text of the Rome Statute of the International Criminal Court.11 The ICTY Appeals Chamber has explained that in ‘drafting Article 5 of the Tribunal’s Statute and imposing the additional jurisdictional requirement that crimes against humanity be committed in armed conflict, the Security Council intended to limit the jurisdiction of the Tribunal to those crimes which had some connection to armed conflict in the former Yugoslavia’.12 This is reading a lot into the alleged intent of the Security Council, based on a rather sparse record. An equally plausible explanation is that the lawyers in the Secretariat who drafted the Statute believed that the nexus with armed conflict was still, in 1993, an element of the customary law concept of crimes against humanity. The cases have described the presence of an armed conflict in article 5 of the ICTY Statute as a ‘purely jurisdictional requirement’,13 holding that there is no requirement of a nexus between the punishable act and an armed conflict, comparable to the situation with respect to war crimes.14 Rather, all that is necessary is proof ‘there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict’.15 In an attempt to clarify this issue, the ICTY Appeals Chamber stated: The Appeals Chamber does not accept that the jurisdictional requirement of Article 5 requires the Prosecution to establish that an armed conflict existed within the State (or region) of the Former Yugoslavia in which the charged Article 5 crime is alleged to have been committed. There can be situations where an armed conflict is ongoing in one state and ethnic civilians of one of the warring sides, resident in another state, become victims of a widespread and systematic attack in response to that armed conflict. All that is required under Article 5 of the Statute is that the prosecution establish that an armed conflict is suYciently related to the Article 5 crime with which the accused is charged. While, as previous 10

11 12

13 14

15

Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 141; Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 251; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 23. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7. Sˇesˇelj (IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 13. See: Larry D. Johnson, ‘Ten Years Later: Reflections on the Drafting’, (2004) 2 Journal of International Criminal Justice 368, at p. 372. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 83. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 33. See: Gue´nae¨l Mettraux, ‘Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, (2002) 43 Harvard International Law Journal 237, at pp. 263–268. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 83. Also: Kordic´ et al. (IT95-14/2-T), Judgment, 26 February 2001, para. 23.

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jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress.16

Given that virtually all of the indictments by the ICTY have concerned acts committed during armed conflict, the point has been of little practical significance. This issue will present some diYculties, however, with respect to prosecutions for crimes against humanity committed after the Dayton Peace Agreement in late 1995 and prior to the outbreak of armed conflict in Kosovo in late-March 1999, when the NATO bombing campaign began. If Serbia and Montenegro was at peace during this period, the ICTY will be without jurisdiction to prosecute crimes against humanity even if, as a question of customary international law, they may have been committed. In Limaj, which concerns alleged atrocities committed by Kosovar secessionists, the indictment states: ‘No later than early 1998, after years of increasing tension and violence, armed conflict commenced between Serb forces and the KLA in Kosovo.’ The time frame of the indictment is May to August 1998.17 At the conclusion of the Prosecutor’s case in Milosˇevic´, the amici curiae argued that there was no evidence of armed conflict with respect to Kosovo prior to the NATO bombing, in late March 1999. Referring to testimony showing that the Kosovo Liberation Army (KLA) was a well-organised fighting force, that it controlled territory in Kosovo, and that there was armed conflict of considerable intensity, the Trial Chamber dismissed the motion.18

Any civilian population Reflecting the Nuremberg Charter’s definition of crimes against humanity, all three statutes require that they be directed ‘against any civilian population’. These words clarify Nuremberg’s great innovation with respect to international criminal law, namely, that individuals associated with an oppressive State apparatus could be prosecuted for crimes committed against their own 16

17 18

Sˇesˇelj (IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 14. Limaj et al. (IT-03-66-PT), Second Amended Indictment, 6 November 2003, para. 4. Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 14–40.

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citizens, and not only for crimes committed against foreign nationals whose protection by international law was already relatively well established.19 According to the ICTY Appeals Chamber, the expression ‘directed against’ is an expression which ‘specifies that in the context of crime against humanity the civilian population is the primary object of the attack’. In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider . . . the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.20

It has been held that the civilian population must be the ‘primary object of the attack’.21 There is no need to show that the entire population of a geographic entity was targeted by the attack, as long as it is not directed against ‘a limited and randomly selected number of individuals’.22 Another judgment says the ‘civilian population’ requirement is ‘intended to imply crimes of a collective nature and thus excludes single or isolated acts’.23 The population must be ‘predominantly civilian in nature’, although non-civilians may be present.24 Antonio Cassese has written that ‘action between soldiers may not constitute crimes against humanity’.25 The definition of ‘civilian’ in article 50 of Additional Protocol I has been used as a reference, as it is said to reflect customary law.26 In Blasˇkic´, a Trial 19 20 21 22

23 24

25

26

On this point, see Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 33. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 90. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 235. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 90. Also: Naletilic´ et al. (IT98-34-T), Judgment, 31 March 2003, para. 235; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 330. Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 80. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 180. Also: Jelisic´ (IT-9510-T), Judgment, 14 December 1999, para. 54; Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 549; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 214; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 235; Semanza (ICTR-9720-T), Judgment and Sentence, 15 May 2003, para. 330; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 582; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 72; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 207; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 128; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 79. Antonio Cassese, International Criminal Law, Oxford: Oxford University Press, 2003, p. 87. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 110; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 97.

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Chamber said crimes against humanity can also be perpetrated against members of a resistance movement and former combatants, regardless of whether they have worn uniforms, to the extent they were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained.27 This wide definition ‘includes all persons except those who have the duty to maintain public order and have the legitimate means to exercise force’.28 Generally, the concept of ‘civilian population’ should be construed liberally, in order to promote the principles underlying the prohibition of crimes against humanity, which are to safeguard human values and protect human dignity.29 But although crimes against humanity require that the attack be directed against any civilian population, this does not mean that victims need be civilians. It has been held, with reference to French case law, that they may also include military personnel.30

Widespread or systematic attack For a crime against humanity to be committed, the civilian population must be the object of a ‘widespread or systematic attack’. This requirement is set out explicitly in the ICTR and SCSL statutes. Although not specified in the text of its Statute, the ICTY judgments have also imposed this condition.31 The Secretary-General’s Report to the Security Council on establishment of the ICTY described crimes against humanity as ‘inhumane acts of a very serious nature . . . committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious 27

28 29

30 31

Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 214. Also: Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 54; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 180; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 235; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 582; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 72; Musema (ICTR- 96-13-T), Judgment and Sentence, 27 January 2000, para. 207; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 127–129; Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 548. See the discussion in Chesterman, ‘An Altogether DiVerent Order’, at pp. 322–325. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 127–129. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 547–549; Jelisic´ (IT-9510-T), Judgment, 14 December 1999, para. 54. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 568. Mrksic´ et al. (IT-95-13-R61), Review of Indictment Pursuant to Rule 61, 3 April 1996, para. 30; Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 311; Kordic´ et al. (IT-95-14/2A), Judgment, 17 December 2004, para. 106; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 98.

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grounds’.32 The ‘widespread or systematic’ language is also reflected in article 7(1) of the Rome Statute of the International Criminal Court, and forms part of customary international law. The ‘widespread’ characteristic refers to the scale of the acts perpetrated and the number of victims.33 An ICTR Trial Chamber, in Akayesu, said that ‘[t]he concept of ‘‘widespread’’ may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims’.34 A widespread crime may be the ‘cumulative eVect of a series of inhumane acts or the singular eVect of an inhumane act of extraordinary magnitude’.35 The systematic character refers to the organised nature of the pattern, that is, the non-accidental repetition of similar criminal conduct and the improbability of their random occurrence.36 The criteria are disjunctive, despite a suggestion to the contrary in the French version of the ICTR Statute,37 and it is only necessary to prove that the attack is either widespread or systematic.38 But in practice, the two criteria tend to overlap, and manifest themselves by many of the same factors. In addition, the 32

33

34

35

36

37

38

‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 48. Also: Tadic´ (IT-94-1-T), Decision on the Defence Motion on Jurisdiction, 10 August 1995. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 206; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 236; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 123; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 77; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 94. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 580. Also: Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 69; Musema (ICTR96-13-T), Judgment and Sentence, 27 January 2000, para. 204; Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 804. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 179; Kordic´ et al. (IT-9514/2-A), Judgment, 17 December 2004, para. 94. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 94; Naletilic´ et al. (IT-9834-T), Judgment, 31 March 2003, para. 236; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 578–579; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 67. ‘Le tribunal international pour le Rwanda est habilite´ a` juger les personnes pre´sume´es responsables des crimes suivants lorsqu’ils ont e´te´ commis dans le cadre d’une attaque ge´ne´ralise´e et syste´matique.’ See: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 579, n. 144. The Arabic text is similar to the French. The Spanish, Russian and Chinese versions are consistent with the English text. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 236; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 122–123, n. 28; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 68; Musema (ICTR-9613-T), Judgment and Sentence, 27 January 2000, para. 203; Bagilishema (ICTR-95-1AT), Judgment, 7 June 2001, para. 77; Ntakirutimana et al. (ICTR-96-10 & ICTR-96-17T), Judgment, 21 February 2003, para. 804; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 328; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 439.

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tribunals will obviously consider the number of victims and the nature of the acts.39 They will also take into account the existence of a political objective and an acknowledged policy or plan pursuant to which the attack is perpetrated, or an ideology, in the broad sense of the word, that contemplates the destruction, persecution or weakening of a community, the preparation and use of significant public or private resources, the participation of high-level political or military authorities.40 It is the attack itself that must be widespread or systematic, and not the specific acts with which the accused is charged.41 Many of these factors suggest the involvement of a State or, at a minimum, a State-like entity, such as the Republika Srpska. Indeed, it was in order to address State-sponsored persecution of its own nationals that had previously escaped international criminal sanction that the concept of crimes against humanity was first developed in respect of the Nuremberg prosecutions. The early decisions at both tribunals were divided as to whether a State or organisational plan or policy was an element of crimes against humanity. In Kunarac, the ICTY Appeals Chamber held that the policy component was not an element of crimes against humanity at all ‘at the time of the alleged acts’. In support, the Appeals Chamber referred to a number of authorities, including Eichmann.42 Of particular interest is the apparent contradiction between the Appeals Chamber’s view of the requirements of customary international law and the text of the Rome Statute, which in earlier rulings the ad hoc tribunals have sometimes cited as an authoritative codification of customary international law.43 But article 10 of the Rome Statute states it shall not ‘be interpreted as limiting or prejudicing in any way existing or developing rules of international law’, and the judges now seem to be taking its drafters at their word. It is disappointing that the Appeals Chamber did not provide more of an explanation for its position, or even attempt to account for the discrepancy with the plain text of article 7 of the Rome Statute.44 39

40

41

42

43 44

Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 95; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 53. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 203; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 95; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 53. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 94; Blasˇkic´ (IT-95-14A), Judgment, 29 July 2004, para. 101, referring to Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 96. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 98. Also: Blasˇkic´ (IT-95-14A), Judgment, 29 July 2004, para. 120; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 98. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 228. For discussion of this issue, see: Mettraux, ‘Crimes Against Humanity’, at pp. 270–282. Cherif Bassiouni takes the view that a State plan or policy element is part of the customary law concept of crimes against humanity: M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis and Integrated Text,

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Although the term ‘attack’ may appear to connote the existence of an armed conflict, this is not a requirement, and the two concepts are distinct and independent:45 ‘The attack has been defined as a course of conduct involving the commission of acts of violence. The attack can precede, outlast, or continue during the armed conflict, but need not be a part of the conflict under customary international law.’46 It is not limited to an armed attack, and may involve any mistreatment of the civilian population, and even nonviolent attacks, such as the establishment of a system of apartheid.47 There must be some connection or nexus between the acts of the accused and the attack itself,48 but the specific acts with which the accused is charged need not be shown to be widespread and systematic.49 Under certain circumstances, even a single act can constitute a crime against humanity when committed within the appropriate context, but an isolated act cannot.50 The accused must have some knowledge that the attack is widespread or systematic, and that there is a nexus between the acts committed and that context.51 An accused who lacks such knowledge cannot be found guilty of crimes against humanity, although he or she may still be liable for prosecution

45 46

47

48

49 50

51

vol. I, Ardsley, NY: Transnational Publishers, 2005, pp. 151–152; Bassiouni, Crimes Against Humanity, pp. 243–281. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 30. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 233; Akayesu (ICTR-96-4T), Judgment, 2 September 1998, para. 581; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 86. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, paras. 29, 30; Kunarac et al. (IT96-23/1-A), Judgment, 12 June 2002, para. 86; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 70; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 205; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 327. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 251, 271; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 234; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 33. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 431. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 550; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, para. 178; Mrksic´ et al. (IT-95-13-R61), Review of Indictment Pursuant to Rule 61, 3 April 1996, para. 30. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 102, 410; Krnojelac (IT97-25-T), Judgment, 15 March 2002, para. 59; Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 271; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 244–247; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 56; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 185; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 133–134; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 19–20; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 94; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 442; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 71; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 206; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 99–100.

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by national courts for the underlying criminal behaviour, such as murder.52 Article 7(1) of the Rome Statute makes this requirement explicit.53 According to an ICTY Trial Chamber in Blasˇkic´: It follows that the mens rea specific to a crime against humanity does not require that the agent be identified with the ideology, policy or plan in whose name mass crimes were perpetrated nor even that he supported it. It suYces that he knowingly took the risk of participating in the implementation of the ideology, policy or plan. This specifically means that it must, for example, be proved that: [a] the accused willingly agreed to carry out the functions he was performing; [b] that these functions resulted in his collaboration with the political, military or civilian authorities defining the ideology, policy or plan at the root of the crimes; [c] that he received orders relating to the ideology, policy or plan; and lastly [d] that he contributed to its commission through intentional acts or by simply refusing of his own accord to take the measures necessary to prevent their perpetration.54

These authorities confirm a controversial finding by the Supreme Court of Canada in one of the rare national prosecutions for crimes against humanity.55 But there is no requirement that the oVender have detailed knowledge of the attack56 nor that he or she approve of it.57 Evidence that the accused had knowledge of the context of the attack will be inferred from such factors as the historical and political circumstances in which the acts of violence occurred, the functions of the accused when the crimes were committed, the responsibilities of the accused within the political or military hierarchy, the direct and indirect relationship between the political and military hierarchy, the scope and gravity of the acts perpetrated, the nature of the crimes committed and the degree to which they are common knowledge.58 Moreover, the suggestion in some early judgments that ‘acts carried out for purely personal motives’ are excluded must be incorrect.59 To the extent that an 52 53 54

55

56

57 58 59

Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 271. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1). Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 257. Also: Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 37; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 59. R v. Finta, [1994] 1 SCR 701. An ICTY Trial Chamber relied on Finta in Tadic´ (IT94-1-T), Opinion and Judgment, 7 May 1997, para. 657; also Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 249. One of the ironies of international justice is that the Prosecutor who appealed this aspect of the decision, Louise Arbour, had herself participated in the Finta case as part of the majority of the Ontario Court of Appeal! Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 102; Krnojelac (IT-97-25T), Judgment, 15 March 2002, para. 59. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 185. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 258–259. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 122–123, n. 28.

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accused commits punishable acts with knowledge of the context, the motives should be irrelevant to the question of guilt or innocence.60

Discriminatory intent The expression ‘discriminatory intent’ has been used in the case law to refer to a requirement that crimes against humanity be committed ‘on national, political, ethnic, racial or religious grounds’. These words appear in the introductory paragraph of article 3 of the ICTR Statute. Although absent in the ICTY Statute, the Secretary-General’s Report to the Security Council on establishment of the ICTY described crimes against humanity as acts committed ‘on national, political, ethnic, racial or religious grounds’.61 His views were echoed by three members of the Security Council in the debate on the draft Statute.62 Reflecting evolving views on the subject, there is no such requirement in the SCSL Statute, nor any reference to the issue in the Secretary-General’s report on the SCSL Statute. The issue also presents itself with respect to the specific punishable act of persecution, which appears in paragraph (h) of the relevant provisions (‘persecutions on political, racial and religious grounds’). It is probably more accurate to refer to this issue as one of ‘discriminatory motive ’ so as to distinguish it from criminal intent, which identifies an intention to engage in specific prohibited conduct or to cause a prohibited consequence rather than the reason for doing so. Possibly, the tribunals have opted for the term ‘discriminatory intent’ rather than ‘discriminatory motive’ so as to make it clear that it is not a defence to a charge of persecution to argue that the accused was also driven by ‘purely personal motives’.63 Motive is generally considered to be irrelevant as an element of a criminal act, although it enters the legal debate as a circumstance that may or may not confirm the likelihood that an individual committed a crime, as well as a factor to be weighed in sentencing a convicted person. But there are exceptions, and the imposition of a motive requirement is one technique to ensure that ordinary oVences are separated from international crimes. The diVering provisions on discriminatory intent or motive that are applicable to the three tribunals reflect an uncertain position in international

60

61

62 63

Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 270, 272. Also: Kunarac et al. (IT-9623/1-A), Judgment, 12 June 2002, para. 103; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 187. See the interesting discussion of this in Chesterman, ‘An Altogether DiVerent Order’, at pp. 318–321. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 48. UN Doc. S/PV.3217 (25 May 1993). Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 463.

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law on this point. The ICTY Appeals Chamber resolved the debate in its 15 July 1999 decision in the Tadic´ case, holding that there is no requirement at customary law that a crime against humanity be perpetrated with discriminatory intent, except in the specific case of persecution.64 The ICTR Appeals Chamber subsequently made the same ruling with respect to the ICTR Statute, overturning a Trial Chamber that had applied the text of article 3 in a literal manner.65 The explanation for the inclusion of this discriminatory intent element in the chapeau of article 3 of the ICTR Statute is not particularly convincing, however. Essentially, the ICTR Appeals Chamber reasoned that ‘in most cases, crimes against humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons’,66 and for this reason ‘the Security Council decided to limit the jurisdiction of the Tribunal over crimes against humanity solely to cases where they were committed on discriminatory grounds’.67 A more likely, though inconvenient, explanation is that the lawyers drafting the ICTR Statute thought the discriminatory intent or motive was an element of crimes against humanity. Only months after the Statute was adopted, the Secretary-General was boasting that ‘the Security Council has elected to take a more expansive approach to the choice of the applicable law’ than the one underlying the ICTY Statute.68 If that was really the philosophy at the time, it seems incredible that such a limitation on the scope of crimes against humanity would be imposed intentionally. According to one of the United Nations lawyers who was involved in drafting both statutes, the view taken by the Secretary-General in 1993 was that the discriminatory intent was an element of crimes against humanity, which explains why this was included in the Secretary-General’s report, although the language does not appear in the ICTY Statute. The following year, the drafters of the ICTR Statute preferred to spell out what they believed had been implicit in the ICTY Statute. In other words, as Larry Johnson wrote, ‘[i]t is clear, however, that the less descriptive language used in the Yugoslav Statute is intended

64

65

66 67 68

Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 283, 292, 305. Also: Blasˇkic´ (IT-95-14T), Judgment, 3 March 2000, paras. 244, 260; Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 113; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 186. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 447–469. Subsequently followed in: Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 81; Semanza (ICTR-9720-T), Judgment and Sentence, 15 May 2003, para. 332; Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, para. 672. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para 297. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 464. ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134, para. 12.

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to encompass the description found in the Rwanda Statute’.69 But this is decidedly not how the Appeals Chambers have viewed the matter.

Punishable acts The definition of crimes against humanity in the three statutes consists of an introductory paragraph (or chapeau), followed by a list of punishable acts. The list is exhaustive, and does not explicitly invite courts to add new categories, although this shortcoming is adequately compensated for by the inclusion, as the final act, of the category ‘other inhumane acts’.

Murder All three statutes list ‘murder’ as the first punishable act of crimes against humanity. The terminology is markedly distinct from what is used for war crimes (‘wilful killing’) and genocide (‘killing’). Some judgments have taken the view that this distinction suggests that ‘murder’ requires more than mere intentional homicide, a position enhanced by the French language versions of the ICTY and ICTR statutes, which refer to assassinat.70 The word assassinat would normally be translated into English as ‘premeditated murder’, which is one notch more serious than intentional homicide. Subsequent Frenchlanguage versions of the definition of crimes against humanity, notably the draft Code of Crimes adopted by the International Law Commission in 199671 and the Rome Statute of the International Criminal Court,72 use the term meurtre, which is also equivalent to the English word ‘murder’ and synonymous with intentional killing. Both the ICTR and the ICTY have been divided on how to interpret the scope of ‘murder’. Some ICTR Trial Chamber judgments hold that the French version, with its requirement of premeditation, should be favoured,73 while 69

70

71

72

73

Larry D. Johnson, ‘The International Tribunal for Rwanda’, (1996) 67 International Review of Penal Law 211, at p. 220. Also: Johnson, ‘Ten Years Later’, at p. 372. ‘Murder’ is also translated as assassinat in article 2 of the ICTR Statute concerning serious violations of common article 3 of the Geneva Conventions. That this is an error in translation is confirmed with reference to the French version of the Geneva Conventions themselves, which translate ‘murder’ as meurtre. The issue is discussed in some detail in Chesterman, ‘An Altogether DiVerent Order’, at pp. 329–330. ‘Report of the International Law Commission on the Work of its Forty-eighth Session, 6 May–26 July 1996’, UN Doc. A/51/10, p. 118, art. 18. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1) (a). Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, paras. 84–85; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 138–139; Ntakirutimana et al. (ICTR-96-10 & ICTR-96-17-T), Judgment, 21 February 2003; Semanza (ICTR-9720-T), Judgment and Sentence, 15 May 2003, paras. 334–339.

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others take the broader view that the crime involves intentional killing but no proof of premeditation.74 Relying on the recent texts of the Code of Crimes and the Rome Statute, an ICTY Trial Chamber in Blasˇkic´ concluded that murder (meurtre) and not premeditated murder (assassinat) was the underlying oVence of a crime against humanity.75 Citing Blasˇkic´, an ICTY Trial Chamber in Kordic´ said ‘it is now settled that premeditation is not required’.76 But in Kupresˇkic´, another Trial Chamber, citing a Rwandan case, seemed to opt again for the premeditation requirement.77 The term ‘murder’ in the provisions of the three statutes concerning crimes against humanity has been held to have an identical meaning to that of the act of genocide of ‘killing’, the grave breach of ‘wilful killing’, and the war crime of ‘murder’, and is discussed in greater detail under the heading of the act of genocide of ‘killing’.78

Extermination The second punishable act of crimes against humanity in the three statutes is ‘extermination’. Extermination refers to ‘acts committed with the intention of bringing about the death of a large number of victims either directly, such as by killing the victim with a firearm, or less directly, by creating conditions provoking the victim’s death’.79 The crime against humanity of extermination fills a useful gap in international criminal justice, by providing a mechanism to prosecute in cases where all of the elements of genocide, notably the targeting of a national, ethnic, racial or religious group, are not present.80 In Ntakirutimana, the ICTR Appeals Chamber said: Murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity; each involves

74

75

76 77 78 79

80

Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 214; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 79; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 588. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 216. See also: Stakic´ (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 24; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 51. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 235–236. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 561. Above at pp. 172–174. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 499. Also: Rutaganda (ICTR-96-3T), Judgment and Sentence, 6 December 1999, paras. 83–84; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 218; Ntakirutimana et al. (ICTR-96-10 & ICTR-96-17-T), Judgment, 21 February 2003, paras. 812–813; Kayishema et al. (ICTR95-1-T), Judgment and Sentence, 21 May 1999, para. 144; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 450. Chesterman, ‘An Altogether DiVerent Order’, at pp. 336–337.

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killing within the context of a widespread or systematic attack against the civilian population, and the only element that distinguishes these oVences is the requirement of the oVence of extermination that the killings occur on a mass scale.81

Accordingly, ‘for the crime of extermination to be established, in addition to the general requirements for a crime against humanity, there must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population’.82 ‘Calculated’ is a term that seems borrowed from article 4(2)(c) which concerns genocide, and it is probably too demanding here. In Semanza, an ICTR Trial Chamber said extermination could be distinguished from murder in that it was directed against a population rather than individuals.83 In many ways it resembles genocide, except that there need be no proof of an intent to destroy the population being attacked, nor is the description of the population confined to national, ethnic, racial or religious groups.84 The Rome Statute provides a brief definition of the term, which is somewhat inspired by the genocide provision, declaring that it ‘includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’. According to an ICTR Trial Chamber in Semanza, ‘[t]he scale of the killing required for extermination must be substantial. Responsibility for a single or a limited number of killings is insuYcient.’85 But the Prosecutor is not required to furnish a precise list of victims in order to establish commission of the crime.86 Moreover, any attempt ‘to set a minimum number of victims in the abstract will ultimately prove unhelpful; the element of massive scale must be assessed on a case-bycase basis in light of the proven criminal conduct and all relevant factors’.87 There is some divergence on the mental element, and as yet no final determination from the Appeals Chamber. According to the ICTR Trial Chambers, extermination may encompass intentional, reckless or grossly negligent killing.88 In Krstic´, an ICTY Trial Chamber said the mental element 81

82 83 84 85 86

87 88

Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 542. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 503. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 340. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 500. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 340. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, paras. 518, 521. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 573. Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 89; Kayishema et al. (ICTR95-1-T), Judgment and Sentence, 21 May 1999, para. 144; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 341.

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was the same as that of murder, namely, intent but not premeditation.89 In Vasiljevic´, another ICTY Trial Chamber said extermination could also be committed if the oVender acted with ‘reasonable knowledge that such act or omission is likely to cause death’.90 The oVender must ‘have known of the vast scheme of collective murder and have been willing to take part therein’.91 The ICTY Appeals Chamber has overturned a Trial Chamber determination that extermination required proof that the accused must ‘have known of the vast scheme of collective murder and have been willing to take part therein’.92 An ICTY Trial Chamber, in Brdanin, said the evidence of knowledge that the acts of the oVender are part of a vast murderous enterprise in which a larger number of individuals are systematically marked for killing or killed is, at most, evidence to prove knowledge that the act was part of a widespread or systematic attack on a civilian population.93

Enslavement The crime against humanity of enslavement is the third on the list in the definitions of the three statutes. Enslavement is also a violation of the laws or customs of war, where the same principles apply.94 That slavery and the slave trade are contrary to customary international law, and subject to individual criminal liability, is axiomatic.95 Referring to the 1926 Slavery Convention, the ICTY Appeals Chamber has noted that article 1(1) defined slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.96 It said this was preferable to the words used by the Trial Chamber, describing slavery as ‘the exercise of any or all of the powers attaching to the right of ownership over a person’.97 The Rome Statute somewhat develops the definition from the Slavery Convention: enslavement is ‘the exercise of any or all of the powers attaching to the right of ownership over a person and includes

89 90 91 92

93

94 95

96 97

Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 495. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 229. Ibid., para. 228. Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 225, reversing the conclusion in Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, paras. 228–229. Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 394. Also: Blagojevic´ (IT-0260-T), Judgment, 17 January 2005, para. 576. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 108. See below at pp. 281–282. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 64. The Trial Chamber referred to the discussion in Kunarac about the customary nature of the prohibition of enslavement as a crime against humanity. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 118. Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 539. Also Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 350.

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the exercise of such power in the course of traYcking in persons, in particular women and children’.98 The ICC Elements of Crime provide as examples ‘purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty’.99 In Kunarac, the ICTY Appeals Chamber confirmed that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as ‘chattel slavery’, has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership. As the Appeals Chamber explained, [i]n the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘chattel slavery’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of ‘chattel slavery’ but the diVerence is one of degree. The Appeals Chamber considers that, at the time relevant to the alleged crimes, these contemporary forms of slavery formed part of enslavement as a crime against humanity under customary international law.100

International humanitarian law does not prohibit all labour by protected persons in armed conflicts. For example, article 51 of the fourth Geneva Convention seeks to regulate the practice of forced labour, declaring that an Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Article 5 of Additional Protocol II also contemplates forms of forced labour: ‘In addition to the provisions of Article 4 the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained . . . (e) they shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population.’ In peacetime, however, the prohibition of slavery or enslavement would appear to be an absolute one, consistent with nonderogable norms in international human rights treaties. The case law of the ICTY has established that ‘the exaction of forced or compulsory labour or service’ is an ‘indication of enslavement’, and a ‘factor to be taken into consideration in determining whether enslavement was committed’.101 Often 98 99 100 101

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(2)(c). ‘Elements of Crimes’, ICC-ASP/1/3, p. 108, art. 7(2)(c). Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 117. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 542–543.

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forced or compulsory labour or service is without remuneration, and frequently, though not necessarily, it involves physical hardship, sex, prostitution, and human traYcking, and these too are factors to be assessed.102 Evidence that a person was kept in captivity in the absence of other indications would not be enough to establish the crime of enslavement.103 Duration is a factor in determining enslavement, but it is not an element. Lack of consent or resistance is not an element of the crime of enslavement.104 As the ICTY Appeals Chamber has explained, ‘[t]he question turns on the quality of the relationship between the accused and the victim. A number of factors determine that quality.’105 Other factors in determining enslavement have also been identified, such as elements of control and ownership, restriction or control of an individual’s autonomy, freedom of choice or freedom of movement, the accruing of some gain to the perpetrator, the threat or use of force or other forms of coercion, the fear of violence, deception or false promises, the abuse of power, the victim’s position of vulnerability, detention or captivity, and psychological oppression or socio-economic conditions. Indications of enslavement also include control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to treatment and abuse, and control of sexuality.106

Deportation The crime against humanity of deportation is derived from the Nuremberg Charter. A more contemporary formulation of this punishable act appears in article 7(2)(d) of the Rome Statute, which refers to ‘deportation or forcible transfer of population’.107 The reason for the addition of ‘forcible transfer’ is to cover displacements within a State, in which international borders are not crossed. ‘Unlawful deportation or transfer’ is a grave breach of the Geneva Conventions, punishable as a war crime under article 2 of the ICTY Statute, although not, it would seem, under the law of the other two tribunals. There is nothing about deportation or transfer in either common article 3 or Additional Protocol II.

102 104 105 106 107

103 Ibid., para. 542. Ibid., para. 542. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 120. Ibid., para. 121. Ibid., para. 119. The crime is further defined as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’.

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There have been several prosecutions before the ICTY with respect to the crime against humanity of deportation, but apparently none before either the ICTR or the SCSL. This may reflect concerns of their Prosecutors that the oVence is inapplicable with respect to forced displacement within a country. Perhaps another explanation is that no clear cases of the crime have presented themselves. In Krstic´, an ICTY Trial Chamber was uncomfortable with the distinction, and refused to conclude that the crime against humanity of deportation had taken place with respect to the expulsions of Bosnian Muslims from Srebrenica but still within the borders of Bosnia and Herzegovina. Nevertheless, referring to the prohibition on population transfers in article 49 of the fourth Geneva Convention, it decided that ‘forcible transfer’ within national borders fell within the residual category of crimes against humanity, ‘other inhumane acts’.108 A diVerent Trial Chamber of the ICTY, in Stakic´, referred to Roman law, under which deportatio involved displacement within the borders of the Roman Empire. No cross-border requirement was envisaged, and the Trial Chamber said that none was necessary with respect to crimes against humanity either.109 The ICTY Appeals Chamber has now endorsed this view.110 The terms ‘forcible transfer’ and ‘forcible displacement’ are treated as synonyms.111 The ICC Statute defines deportation and forcible transfer as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’.112 One ground permitted by international law is when ‘the security of the civilians or imperative military reasons so demand’.113 According to an ICTY Trial Chamber, ‘[e]vacuation is by definition a temporary and provisional measure and the law requires that individuals who have been evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased’.114 The Trial Chamber 108

109 110

111 112 113

114

Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 532. See also Kupresˇkic´ et al. (IT-9516-T), Judgment, 14 January 2000, para. 566; Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 52. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 675. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, paras. 222–223. See, particularly, the detailed discussion of this point in the Separate Opinion of Judge Schomburg. Also: Simic´ et al. (IT-95-9-T), Judgment, 17 October 2003, para. 129; Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 68–69. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 595, fn. 1962. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(2)(d). Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 49(2); Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609, art. 17(1). Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 597.

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noted that international humanitarian law had long recognised not only the right but also the duty of military commanders to evacuate civilians when they are in danger as a result of military operations. It concluded that humanitarian reasons are also a justification for evacuation of a civilian population.115

Imprisonment The crime against humanity of imprisonment consists of an act or omission that results in arbitrary deprivation of physical liberty, or that is reasonably likely to eVect that result. Arbitrary deprivation of liberty occurs when there is no legal justification for the detention.116 According to the ICTY Appeals ˇ erkez, ‘imprisonment in Article 5(e) of the Statute Chamber in Kordic´ and C should be understood as contemplating arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population’.117 There have been only a few prosecutions before the ICTY for imprisonment as a crime against humanity, and none, apparently, before the ICTR and SCSL.

Torture Torture is punishable as a crime against humanity under all three statutes, although it was not included in the definition applied at Nuremberg. Torture is listed as a crime against humanity, but it is also a grave breach of the Geneva Conventions and a war crime. The tribunals have made no significant distinctions with respect to interpreting the term ‘torture’ within the context of these diVerent categories of international crime. The international crime of ‘torture’ has been defined in the case law of the tribunals as involving ‘the infliction, by act or omission, of severe pain or suVering, whether physical or mental’, aimed at ‘obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person’.118 This definition is largely derived from international human rights instruments, specifically the 1975 Declaration on the Protection of All

115 116

117

118

Ibid., paras. 597–600. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 115; Kordic´ et al. (IT-95-14/2T), Judgment, 26 February 2001, paras. 302–303. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 302; Kordic´ et al. (IT-9514/2-A), Judgment, 17 December 2004, para. 116. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 142. Also: Krnojelac (IT97-25-T), Judgment, 15 March 2002, para. 179; Furundzˇija (IT-95-17/1-A), Judgment,

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Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,119 the 1985 Inter-American Convention to Prevent and Punish Torture120 and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,121 as well as the case law of the Human Rights Committee, the European Court and Commission of Human Rights, and similar bodies. In Akayesu, an ICTR Trial Chamber applied the definition in article 1 of the Torture Convention to the term ‘torture’ in its own Statute.122 The international humanitarian law prohibition of torture has evolved from a variety of sources, including the Lieber Code of 1863 and the Hague Conventions, especially Hague Convention IV of 1907. Torture was not specifically mentioned in the Nuremberg Charter, but it was expressly classified as a crime against humanity in Allied Control Council Law No. 10.123 As an ICTY Trial Chamber pointed out in Furundzˇija, ‘no State has ever claimed that it was authorised to practice torture in time of armed conflict, nor has any State shown or manifested opposition to the implementation of treaty provisions against torture. When a State has been taken to task because its oYcials allegedly resorted to torture, it has normally responded that the allegation was unfounded, thus expressly or implicitly upholding the prohibition of this odious practice.’124 To qualify as the crime against humanity of torture, the act or omission must be carried out with a prohibited purpose or goal: ‘[t]he act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person’.125 The list of prohibited purposes is drawn from article 1 of the Convention Against Torture, but this has been taken as a representative and not an exhaustive enumeration.126 For example, ‘humiliating the victim or a third person constitutes a prohibited

119 120 121 122

123

124 125 126

21 July 2000, para. 111; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 285. GA Res. 3452(XXX). OASTS 67. GA Res. 39/46, annex. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 408. Similarly, for the ICTY: Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 458, and Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 159–160, which provides a detailed justification for this. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, OYcial Gazette of the Control Council for Germany, No. 3, Berlin, 31 January 1946, 50–55, art. 2(a). Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 138. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 142, 155. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 470; Kvocˇka et al. (IT-9830/1-T), Judgment, 2 November 2001, para. 153.

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purpose for torture under international humanitarian law’.127 It has been noted that torture is not a gratuitous act of violence, but seeks to attain a certain result or purpose. In the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture.128 But while there must be evidence of the prohibited purpose, it need not be the sole or even the predominant purpose for inflicting the severe pain or suVering.129 The list of prohibited purposes in the definition of torture has been held not to be exhaustive but merely representative. Torture for purely private purposes, however, would fall outside the scope of the definition. Some early rulings of the ICTY held that at least one of the perpetrators of torture must be a public oYcial or, at any rate, someone not acting in a private capacity; that is, that it be ‘committed by, or at the instigation of, or with the consent or acquiescence of, an oYcial or other person acting in an oYcial capacity’.130 This view was based on the inclusion of this criterion within the definition of torture of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. But more recent decisions have said this is not a requirement of the crime of torture under customary international law.131 In Kvocˇka, an ICTY Trial Chamber explained that ‘the state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law’.132 It is the severity of the pain or suVering inflicted in the case of torture that sets it apart from similar oVences. In assessing the seriousness of such mistreatment, it has been held that the objective severity of the harm inflicted must first be assessed. Then, the tribunal should consider subjective criteria, such as the physical or mental eVect of the treatment upon the particular victim and, in some cases, factors such as the victim’s age, sex or state of health.133 According to one ICTY Trial Chamber,

127 128 129

130

131

132

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Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 140. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 180. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 153; Kunarac et al. (IT96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 486. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 494–496. Also: Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 162; Furundzˇija (IT-95-17/ 1-A), Judgment, 21 July 2000, para. 111; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 593–595, 681. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 148; Krnojelac (IT-97-25T), Judgment, 15 March 2002, para. 188. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 139. Also: Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 342–343. Also: Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 280–284. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 142–143.

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[w]hen assessing the seriousness of the acts charged as torture, the Trial Chamber must take into account all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim. The extent that an individual has been mistreated over a prolonged period of time will also be relevant.134

Although torture often causes permanent damage to the health of its victims, permanent injury is not a requirement for the crime.135 The mental suVering of an individual forced to watch severe mistreatment of a relative could reach the level of gravity required for the crime of torture. In Kvocˇka, a Trial Chamber wrote: ‘[B]eing forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer. The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped.’136 Perhaps the most striking example of torture in the case law of the ICTY concerns rape. The tribunals have frequently been praised for their inclusion of rape within the scope of the crime of torture. In its ruling dealing with the Foca camp, the ICTY Appeals Chamber stated: [S]ome acts establish per se the suVering of those upon whom they were inflicted. Rape is . . . such an act . . . Sexual violence necessarily gives rise to severe pain or suVering, whether physical or mental, and in this way justifies its characterisation as an act of torture. Severe pain or suVering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suVering.137

The Tribunal has noted that ‘[t]he psychological suVering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting’.138 It was in the context of a torture prosecution that an ICTY Trial Chamber made statements that, while not particularly important in terms of the law of the tribunals, represent a significant development in public international law. In Furundzˇija, it was held that the prohibition of torture has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this

134 135 136 137 138

Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 182. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 148. Ibid., para. 149. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 149–151. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 494.

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higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.139

Rape Rape was not listed in the Charter of the Nuremberg Tribunal, although it was included some months later in the crimes against humanity provision of Control Council Law No. 10.140 Aside from the contextual elements, the same principles apply to rape as a war crime, and they are also considered in this work under the heading of ‘Violations of the laws and customs of war.’141 The term ‘rape’ is widely used in national justice systems, but its definition varies significantly. It has also evolved considerably over the years, reflecting changing attitudes towards the nature and gravity of sexual violence.142 In the first of the cases of the ad hoc tribunals to consider the definition of the term, an ICTR Trial Chamber provided a very broad definition, and one that probably goes well beyond that of many national criminal codes: ‘The Chamber considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts . . . The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.’143 Shortly afterwards, this definition was endorsed by a Trial Chamber of the ICTY.144 But another ICTY Trial Chamber, clearly concerned about a possible breach of the nullum crimen sine lege principle, took a more positivistic approach, holding that rape consisted of ‘the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (c) by coercion or force or threat of force against the victim or a third person’.145 This latter definition was subsequently endorsed in the Elements of Crimes adopted by the Assembly of States 139 140

141 142

143 144

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Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 139, 153. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, OYcial Gazette of the Control Council for Germany, No. 3, Berlin, 31 January 1946, 50–55, art. 2(a). Below at p. 271 See, for example, some recent cases of the European Court of Human Rights: SW v. United Kingdom, Series A, No. 335-B, paras. 35–36; CR v. United Kingdom, Series A, No. 335-B, paras. 33–34. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 325–326. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 478. Also: Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 175, 180; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 220–221, 226–229. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 185.

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Parties of the International Criminal Court.146 It has since been confirmed in a ruling of the ICTY Appeals Chamber.147 Rape is one of the rare crimes within the jurisdiction of the tribunals for which special rules of evidence are provided. Rule 96 is entitled ‘Evidence in Cases of Sexual Assault’ and was adopted at the ICTY Second Plenary Session on 11 February 1994. It specifies that: no corroboration of the victim’s testimony shall be required; consent shall not be allowed as a defence if the victim has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or reasonably believed that if she did not submit, another might be so subjected, threatened or put in fear; prior sexual conduct of the victim shall not be admitted in evidence. Other evidentiary issues have been addressed in the decision, where they are presented as debates about the ‘elements’ of the oVence. Thus, it has been held that ‘resistance’ by the victim need not be established.148 With respect to evidence of force or the threat of force, it is said to provide clear evidence of non-consent, but is not an element per se of rape.149 Judges have said that ‘[a] narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force’.150 Consent must be given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.151 The history of prosecutions for rape before the tribunals has been marked by diYculty and controversy.152 In the Rule 61 hearing against Nikolic´, a Trial Chamber invited the Prosecutor to amend the indictment so as to charge sexual assault, as a crime against humanity, a grave breach, or a violation of the laws or customs of war, after evidence revealed that women and girls 146

147

148 149 150 151

152

‘Elements of Crimes’, ICC-ASP/1/3, p. 108, art. 8(2)(b)(xxii)-1, art. 8(2)(e)(vi)-1: ‘The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. The concept of ‘‘invasion’’ is intended to be broad enough to be genderneutral.’ Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 128; Kvocˇka et al. (IT-9830/1-A), Judgment, 28 February 2005, para. 395. See also: Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 344–345; Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, paras. 707–709. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 127–132. Ibid., paras. 127–132. Ibid., para. 127–132. Ibid., paras. 127–132. For more discussion about Rule 96 of the RPE, see below at pp. 341–343. Kelly D. Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’, (1999) 93 American Journal of International Law 97.

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had been subjected to rape and sexual assault in the Susica camp.153 In the first important trial before the ICTY, defendant Tadic´ was initially charged with rape, but some of the charges were withdrawn when a prosecution witness was too frightened to testify. Another prosecution dealing with a single case of rape hit a major snag when the defence fought, with considerable success, to have access to the victim’s psychological files. At the ICTR, the Prosecutor agreed to amend the indictment of Jean-Paul Akayesu so as to include a range of charges relating to sexual violence, including rape. Akayesu was convicted, and the judgment of the Trial Chamber eloquently set out many of the applicable principles that would inspire subsequent cases. Undoubtedly the most important case dealing with rape and sexual violence concerned the Foca camp, in Bosnia and Herzegovina, for which several convictions concerning sexual violence were entered and stiV penalties imposed.

Sexual violence In addition to rape, the SCSL Statute lists several specific acts that fall within the generic heading of ‘sexual violence’: ‘sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence’. The language seems to be inspired by article 7 of the Rome Statute, which refers to ‘sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’. There is no explanation for the omission of ‘enforced sterilization’ in the SCSL Statute provision. Obviously, international humanitarian law must address other forms of violence of a sexual nature that do not meet the definition of rape. Such acts are also prosecuted under the statutes of the three tribunals as serious violations of Additional Protocol II, which refers not only to rape but also to ‘enforced prostitution’ and ‘indecent assault’ under the rubric of ‘outrages upon personal dignity’.154 The Rules of Procedure and Evidence of the tribunals refer to ‘sexual assault’, which would seem to be synonymous with ‘sexual violence’.155 The Secretary-General’s Report on the ICTY Statute referred to ‘sexual assault’.156 Both the ICTY and ICTR have addressed sexual violence 153

154 155

156

Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) 93 American Journal of International Law 57, at p. 88. See the personal account of how this developed by the Prosecutor at the time: Richard J. Goldstone, ‘Prosecuting Rape as a War Crime’, (2002) 34 Case Western Reserve Journal of International Law 277, at p. 281. ICTR Statute, art. 4(e); SCSL Statute, art. 3(e). ICTY RPE, Rules 34(A)(ii), 96; ICTR RPE, Rules 34(A)(ii), 96; SCSL RPE, Rules 34(A) (iii), 34(B), 79(A)(ii), 96. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), paras. 48, 88, 108.

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not meeting the definition of rape as the crime against humanity of ‘other inhumane acts’. The term ‘sexual violence’ does not appear in the Statute or in the Rules. It first appeared in indictments drafted by the Prosecutor as a generic term to indicate the crimes against humanity of rape and ‘other inhumane acts’, and the war crime of outrages upon personal dignity. The Prosecutor has also used the term with respect to the crime against humanity of persecution and genocide.157 In Akeyesu, an ICTR Trial Chamber said ‘[s]exual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive’.158 The term was also used in judgments of the ICTY in essentially the same context.159 According to a Trial Chamber, in Kvocˇka, ‘sexual violence is broader than rape and includes such crimes as sexual slavery or molestation’.160 Some specific acts of sexual violence, drawn from the crimes against humanity provision in the SCSL Statute, have been defined in the Elements of Crimes of the International Criminal Court. Probably these materials will be drawn on by the SCSL judges, to the extent they are satisfied that they are consistent with customary international law.

Sexual slavery ‘Sexual slavery’ is a crime against humanity listed in the SCSL Statute.161 It is almost certainly a crime punishable by the other two tribunals as the crime against humanity of ‘other inhumane acts’. It could also be prosecuted as the crime against humanity of ‘enslavement’ and the war crime of ‘slavery’. Inclusion of ‘sexual slavery’ within the definition of crimes against humanity in the SCSL Statute was surely inspired by the text of the Rome Statute, which advances international law with its explicit reference to the act. In explaining the absence of ‘sexual slavery’ in the ICTY Statute, a Trial Chamber observed: ‘The setting out of the violations in separate sub-paragraphs of the ICC Statute is not to be interpreted as meaning, for example, that sexual slavery is not a form of enslavement. This separation is to be explained by the fact that the sexual violence violations were considered best to be grouped together.’162 The ICC Elements of Crimes describe ‘sexual slavery’ as follows: ‘The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or 157 158 159 160 161 162

E.g., Milosˇevic´ (IT-01-51-I), Indictment, 22 November 2001, paras. 32(c), 35(e). Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 326. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 477. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 175, 180. SCSL Statute, art. 2(g). Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 541, fn. 1333.

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bartering such a person or persons, or by imposing on them a similar deprivation of liberty.’ A footnote to the Elements states: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes traYcking in persons, in particular women and children.163

According to the United Nations Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, sexual slavery ‘should be understood to be the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including sexual access through rape or other forms of sexual violence’.164 Under the heading of ‘sexual violence’, the Prosecutor of the SCSL has prepared charges for the crime of ‘forced ‘‘marriages’’ ’. The indictments explain that women ‘were used as sex slaves and/or forced into ‘‘marriages’’ ’ and that the ‘ ‘‘wives’’ were forced to perform a number of conjugal duties under coercion by their ‘‘husbands’’ ’.165 It is not clear from the indictments whether ‘forced marriage’ is to be prosecuted as ‘sexual violence’ or as ‘other inhumane acts’, because both are listed. It would appear this may be more properly charged as ‘sexual slavery’.

Enforced prostitution ‘Enforced prostitution’ is a crime against humanity listed explicitly in the SCSL and ICTR statutes,166 and part of the implied content of article 3 of the ICTY Statute. The United Nations Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict has described ‘enforced prostitution’ as referring ‘to conditions of control over a person who is coerced by another to engage in sexual activity’.167 Enforced prostitution is described in the ICC Elements of Crimes as follows: 163

164 165

166 167

‘Elements of Crimes’, ICC-ASP/1/3, p. 108, e.g., arts. 7(1)(g)–(2), 8 (2)(b)(xxii)-2, 8(2) (e)(vi)-2. This is discussed in Knut Do¨rmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court, Sources and Commentary, Cambridge: Cambridge University Press, 2002, pp. 328–329. UN Doc. E/CN.4/Sub.2/1998/13, para. 27. Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, paras. 54–60; Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, paras. 51–57. On ‘forced marriage’, see: Monika Satya Kalra, ‘Forced Marriage: Rwanda’s Secret Revealed’, (2001) 7 UC Davis Journal of International Law and Policy 197. SCSL Statute, arts. 2(e), 3(g); ICTR Statute, art. 4(e). UN Doc. E/CN.4/Sub.2/1998/13, para. 27.

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The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.

Moreover, it must also be shown that ‘[t]he perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature’.168 There do not appear to have been any prosecutions at the tribunals for ‘enforced prostitution’.

Forced pregnancy Another act of sexual violence drawn from the Rome Statute and included in the SCSL Statute’s list of crimes against humanity is ‘forced pregnancy’. According to article 7(2)(f) of the Rome Statute, ‘ ‘‘[f]orced pregnancy’’ means the unlawful confinement, of a woman forcibly made pregnant, with the intent of aVecting the ethnic composition of any population or carrying out other grave violations of international law’. There have been no indictments for this crime.

Other forms of sexual violence In words that are also drawn from the Rome Statute, the SCSL Statute lists the crime against humanity of ‘any other form of sexual violence’.169 It provides the SCSL with a flexible provision enabling it to incorporate uncodified but clearly recognised punishable acts, such as ‘enforced sterilisation’. The Court not only will have to comply with the principle of nullum crimen sine lege, it must also ensure that any punishable acts genuinely fulfil the other criteria for crimes against humanity. The comparable provision in the Rome Statute requires that other forms of sexual violence be ‘of comparable gravity’ to those criminalised explicitly. In Akayesu, an ICTR Trial Chamber said that crimes against humanity ‘must be inhumane in nature and character, causing great suVering, or serious injury to body or to mental or physical health’.170 Forms of sexual violence that do not meet this standard should not be prosecuted as crimes against humanity by the SCSL. 168

169 170

‘Elements of Crimes’, ICC-ASP/1/3, p. 108, e.g., arts. 7(1)(g)-3, 8(2)(b)(xxii)-3; Article 8(2)(e)(vi)-3. This is discussed in Do¨rmann, Elements of War Crimes, p. 329. SCSL Statute, art. 2(g). Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 578; Rutaganda (ICTR-963-T), Judgment and Sentence, 6 December 1999, para. 66; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 201.

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No similar provision is found in the ICTY and ICTR statutes, although they could certainly address serious forms of sexual violence as ‘other inhumane acts’. It is also possible to prosecute such behaviour as the war crime of ‘indecent assault’,171 whose elements must be essentially identical to those of ‘other forms of sexual violence’.

Persecutions The ICTY and ICTR statutes define, as an act of crime against humanity, ‘[p]ersecutions on political, racial and religious grounds’.172 The language is taken verbatim from the definition of crimes against humanity in the Nuremberg Charter. Probably inspired by the Rome Statute, the SCSL Statute adds ‘ethnic’ grounds to the list.173 There is no explanation in the Report of the Secretary-General for the inclusion of ‘ethnic’ grounds.174 The Rome Statute of the International Criminal Court has a much more extensive equivalent provision: ‘Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.’175 This ‘modern’ definition does not appear to have been influential in the case law of the three tribunals. Indeed, one ICTY Trial Chamber wrote that ‘although the Statute of the ICC may be indicative of the opinio juris of many States, Article 7(1)(h) is not consonant with customary international law’, and rejected in particular the requirement that persecution be connected with a crime within the jurisdiction of the court or another act of crime against humanity as too narrow.176 An ICTY Trial Chamber has described persecutions as ‘the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5’.177 Another has said that persecution 171 172 173

174

175 176 177

ICTR Statute, art. 4(e), and, by implication, ICTY Statute, art. 3. ICTY Statute, art. 5(h); ICTR Statute, art. 3(h). SCSL Statute, art. 2(h). It also uses the term ‘persecution’ in the singular, an apparently inadvertent modification of no legal significance. Indeed, the Secretary-General explained the omission of the crime of genocide from the SCSL Statute because ‘of the lack of any evidence that the massive, large scale killing in Sierra Leone was at any time perpetrated against an identified national, ethnic, racial or religious group’. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 13. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1)(h). Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 579–581. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 621. Also: Krstic´ (IT-9833-T), Judgment, 2 August 2001, para. 534.

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refers to ‘a discriminatory act or omission’ that ‘denies or infringes upon a fundamental right laid down in international customary or treaty law’ and that is perpetrated with an intent to discriminate on racial, religious or ˇ erkez, the ICTY Appeals Chamber defined political grounds.178 In Kordic´ and C persecutions as ‘an act or omission which: 1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and 2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea)’.179 Like genocide, with which it has important similarities, the crime against humanity of persecution is a crime of ‘specific intent’.180 The discriminatory intent can be demonstrated by omission, as well as by act. Thus, ‘an attack ‘‘conducted against only the non-Serb portion of the population because they were non-Serbs’’ was indicative of the necessary discriminatory intent’.181 Discriminatory intent can be inferred from knowingly participating in a system or enterprise that discriminates on political, racial or religious grounds.182 But ‘[t]he requirement that an accused consciously intends to discriminate does not dictate the existence of a discriminatory policy or, where such a policy is shown to exist, participation by the accused in the formulation of that discriminatory policy or practice by an authority’.183 The law does not require that a discriminatory policy exist, or that there be proof the accused took part in formulating a discriminatory policy or practice by an authority.184 The accused must consciously intend to discriminate,185 and ‘[w]hile the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one’.186 This discriminatory intent must be established with respect to the specific act that is charged rather than

178 179

180 181 182 183

184

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Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 634. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 101. Also: Blasˇkic´ (IT95-14-A), Judgment, 29 July 2004, para. 131; Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 185; Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 113; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1071; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, para. 21. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 460. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 195. Ibid., para. 201. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 248. Also: Krnojelac (IT-9725-T), Judgment, 15 March 2002, para. 435. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 435; Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 248; Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 625. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 248; Krnojelac (IT-97-25T), Judgment, 15 March 2002, para. 435. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 435.

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with the attack in general.187 But in addition to the intent itself, the Prosecutor must establish that there were discriminatory consequences; in other words, it is not enough to show that the accused conducted an act with the intent to discriminate, it must be shown that a victim was actually persecuted.188 In Nahimana, an ICTR Trial Chamber found that hate speech, which it noted was prohibited by customary international law, could also amount to persecutions. It said that persecution was ‘broader’ than the prohibition on direct and public incitement to commit genocide, a crime that ICTR trial chambers have found to overlap with persecution.189 But the two concepts are conceptually quite diVerent, and while both manifest ethnic or racial hatred, ‘direct and public incitement’ is an inchoate crime requiring no result whereas persecution is exactly to the contrary.190 They are at odds with the requirement in the ICTY case law that persecution have a result. Moreover, while a good argument can be made for the prohibition of hate speech directed at ethnic or racial minorities in customary international law, the ICTR goes much further in concluding that what may constitute a prohibition in international human rights law is also an international crime. Moreover, there is little or no support for the position that international law also prohibits hate speech directed against religious or political groups, however desirable this might be. The case law is quite consistent in requiring that acts of persecutions be ‘of the same gravity or severity as the other enumerated crimes’ in the provision on crimes against humanity.191 Some judgments have said, instead, that acts or omissions ‘must reach a level of gravity at least equal to that of other oVences listed in the Statute’.192 But ‘persecution can consist of the deprivation of a wide variety of rights. A persecutory act need not be prohibited explicitly either in Article 5 or elsewhere in the Statute.’193 In considering

187 188

189

190

191

192 193

Ibid., para. 249. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 245; Krnojelac (IT-97-25T), Judgment, 15 March 2002, para. 432. Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, para. 22; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1078. For discussion of the crime of direct and public incitement to commit genocide, see above at pp. 181–183. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 185; Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 618–619; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 193–195; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 102. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 247. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 614–615. Also: Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 185; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 535.

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whether or not acts fall under the heading of persecutions, judges have said that they should not be evaluated in isolation but rather in their context, taking particular account of their cumulative eVect. Individual acts might not amount to persecutions, but their combined eVect would,194 although this does not mean that a single act might also constitute a crime of persecution.195 Indeed, the whole point of having such a category is to enable the prosecution of acts not addressed elsewhere by international criminal law. Aside from the general threshold for crimes against humanity, the scope of persecutions is restricted principally by its requirement of a discriminatory intent or motive, something which is not required for other acts of crimes against humanity or, for that matter, any other crime within the jurisdiction of the tribunals, with the exception of genocide. Significantly, persecution has been described as belonging to ‘the same genus as genocide’,196 in that it must be committed against persons belonging to a particular group who are targeted for this reason. According to an ICTY Trial Chamber, ‘from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it diVerently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.’197 The relationship between the two, and the requirement of a discriminatory motive for persecution, is a good argument favouring the requirement of a discriminatory motive in the case of genocide.198 Persecutions may involve the infliction of physical or mental harm, or infringements upon individual freedom,199 such as the unlawful detention, deportation or forcible transfer of civilians.200 Persecutions can even involve attacks on political, social and economic rights. An ICTY Trial Chamber has referred in particular to ‘acts rendered serious not by their apparent cruelty but by the discrimination they seek to instil within humankind’.201 Acts of ‘harassment, humiliation and psychological abuse’ may also amount to persecutions.202 Persecutions can include crimes that target property, which

194

195 196 197 198

199

200 201 202

Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 622; Vasiljevic´ (IT-9832-T), Judgment, 29 November 2002, para. 247. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 624. Ibid., para. 636. Ibid., para. 636. See the discussion on this by the Appeals Chamber in Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, paras. 47–55. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 246; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 220. Ibid., para. 234. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 227. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 324–325.

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appear on the surface to be less serious, but where the victimisation involves discrimination.203 Some confusion in the ICTR Statute exists because of the overlap between the discriminatory motive listed in the chapeau of article 3, and the discriminatory motive listed in article 3(h). In eVect, persecutions must be committed on ‘political, racial and religious grounds’, but all crimes against humanity must be committed as part of an attack driven by ‘national, political, ethnic, racial or religious grounds’.204 The most plausible explanation for this is sloppy drafting, although judges have made a brave face of it in trying to suggest this was actually intended by the Security Council in order to limit the scope of prosecutions.205 The discriminatory motive in the introductory paragraph or chapeau had not appeared in the corresponding provision of the ICTY Statute, and it has been subsequently eliminated in the SCSL Statute. The Appeals Chamber has declared that discriminatory motive is not an element of crimes against humanity as a matter of customary law, and the ICTR has decided that the provision is jurisdictional in nature, rather than a substantive element of an oVence.206 With respect to persecutions, however, it is clear that the discriminatory motive must be established. On a practical level, this issue is of little significance. Although national and ethnic groups are not encompassed within article 3(h), they will generally fit within the parameters of the somewhat archaic term ‘racial’. The principal victims of persecution in Rwanda, namely the Tutsi minority, can be adequately described as either an ‘ethnic’ or a ‘racial’ group. No prosecution for persecution before the ICTR should fail because the Tutsi are not considered a ‘racial’ group, although this is precisely what occurred in the Semanza case.207 The bizarre result of that decision is a conviction for genocide, but an acquittal for the crime against humanity of persecution. In Semanza, the accused was also acquitted of persecution with respect to killings of ‘moderate Hutus and others sympathetic to the Tutsi’, because the Trial Chamber considered that the Prosecutor had failed to demonstrate they were a ‘political group’ as this is meant by article 3(h).208 Yet it would seem this is precisely where the attacks on the ‘progressive Hutu’ fit within the scheme of the ICTR Statute. Such acts are probably not appropriately described as genocide, because the progressive Hutu were not members of the targeted ethnic or racial group, and persecution on political grounds would seem to be the best way to describe this form of criminal 203 204 205 206 207 208

Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 233. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 350. This is discussed above under ‘discriminatory intent’, above at pp. 196–198. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1071. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 470–471. Ibid., para. 471.

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activity. In Nahimana, another Trial Chamber did not see any problem fitting persecution of the progressive Hutu within the scope of the provision, describing it as ‘persecution on political grounds of an ethnic character’.209 Some judgments have found an overlap between war crimes and persecutions. In Blasˇkic´, a Trial Chamber described an act of persecution which echoes war crimes prohibitions: ‘In the context of the crime of persecution, the destruction of property must be construed to mean the destruction of towns, villages and other public or private property belonging to a given civilian population or extensive devastation not justified by military necessity and carried out unlawfully, wantonly and discriminatorily.’210 In Kordic´ ˇ erkez, the Appeals Chamber said ‘attacks launched deliberately against and C civilians or civilian objects may constitute persecutions as a crime against humanity’.211 It may seem redundant to be making findings that war crimes are also crimes against humanity, as the whole purpose behind the development of the concept of crimes against humanity was to fill gaps left in the law concerning war crimes. But in this case, that is exactly what the ICTY Appeals Chamber was doing. It had earlier reached the conclusion that attacks on civilians were violations of article 3 of the ICTY Statute, with reference to article 51 of Additional Protocol I, but only to the extent that the attacks had a result. In the case of crimes against humanity, on the other hand, the Appeals Chamber said this was not a requirement.212 Similarly, an ICTY Trial Chamber defined the act of persecution of ‘terrorising the civilian population’ with reference to the war crime of ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’, prohibited by article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II to the 1949 Geneva Conventions.213 It is not always so clear, however, why judgments have concluded that acts of wilful killing, murder, torture and deportation are also persecutions, in that these acts are adequately addressed elsewhere in the crimes against humanity provision.214 The tribunals have justified this with reference to the post-Second World War case law, which included the other enumerated 209 210 211

212 213

214

Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1072. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 234. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 104. Also: Blasˇkic´ (IT95-14-A), Judgment, 29 July 2004, paras. 157–159, referring to Kupresˇkic´ et al. (IT-9516-T), Judgment, 14 January 2000, para. 627; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 434. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 105. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 589. It also referred to Galic´, which addressed spreading terror as a war crime under article 3 of the ICTY Statute. See below at pp. 280–281. See, for example, Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 106; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 347–350.

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acts within the overall concept of persecution, to the extent that they were associated with the discriminatory intent or motive.215 In other cases however, such as beatings, forced labour, the establishment and perpetuation of inhumane conditions or the broader generic concept of ‘inhumane acts and cruel treatment’, it makes considerable sense to prosecute them as persecution, to the extent the discriminatory intent can be established.216 Examples of acts given by the tribunals that constitute persecution have included: attacking cities, towns and villages; unlawful detention of civilians; trench-digging and use of hostages and human shields; the wanton and extensive destruction and/or plundering of civilian dwellings, buildings, businesses, and civilian personal property and livestock (when the cumulative eVect of such property destruction is the removal of civilians from their homes on discriminatory grounds); seizure, collection, segregation and forced transfer of civilians to camps; sexual violence; destruction and damage of religious or educational institutions.217 On the other hand, acts deemed not to rise to the level of persecution have included encouraging and promoting hatred on political grounds and dismissing and removing Bosnian Muslims from government.218 The ICTYAppeals Chamber has cautioned that ‘[i]t is not the case that any type of act, if committed with the requisite discriminatory intent, amounts to persecutions as a crime against humanity’.219 The right to property is protected under several international human rights instruments220 (though not, interestingly enough, by the two International Covenants).221 According to the ICTY Appeals Chamber, whether property crimes may amount to persecution will depend upon ‘the nature and extent of the destruction’,222 and on the type of property involved.223 In Kupresˇkic´, an ICTY Trial Chamber said the destruction of certain types of property ‘may not have a severe enough impact on the victim as to constitute a crime against humanity’, citing as an example the burning of an individual’s 215 216 217

218 219 220 221

222

223

See Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 604–605. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 128–172. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 202–207; Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 186; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 234; Stakic´ (IT-97-24-T), Judgment, 31 July 2003, paras. 747– 773; Deronjic´ (IT-02-61-S), Sentencing Judgment, 30 March 2004, paras. 119–123; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, paras. 143–159. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 208–210. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 139. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 593. See: William A. Schabas, ‘The Omission of the Right to Property in the International Covenants’, (1991) 4 Hague Yearbook of International Law 135. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 108; Blasˇkic´ (IT-95-14A), Judgment, 29 July 2004, para. 149. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 146, citing with approval Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000.

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car, unless the car would constitute ‘an indispensable and vital asset to the owner’.224 In words that were subsequently endorsed by the Appeals Chamber, it noted that ‘the comprehensive destruction of homes and property’ amounting to ‘a destruction of the livelihood of a certain population’ would amount to persecutions.225 One ICTY Trial Chamber suggested that military necessity might be a defence to a charge of destruction of property as a crime against humanity of persecution, an interesting and somewhat questionable example of the importation into the law concerning crimes against humanity of a defence that is recognised with respect to war crimes.226 It seems hard to imagine how a discriminatory attack on civilian property could ever be justified as required by ‘military necessity’.

Other inhumane acts The crime against humanity of ‘other inhumane acts’ comes from the Nuremberg Charter, and has always been part of the definition, although some eVorts at national implementation have omitted it. The rubric of ‘other inhumane acts’ was ‘deliberately designed as a residual category, as it was felt undesirable for this category to be exhaustively enumerated. An exhaustive categorization would merely create opportunities for evasion of the letter of the prohibition.’227 In Jelisic´, an ICTY Trial Chamber described ‘other inhumane acts’ as a ‘generic charge’ encompassing a series of crimes with an equivalent meaning to the notion of ‘cruel treatment’, which is a grave breach of the Geneva Conventions.228 According to the ICTY Appeals Chamber, other inhumane acts must meet the following conditions: the victim must have suVered serious bodily or mental harm, the degree of severity to be assessed on a case-by-case basis with due regard for the individual circumstances; the suVering must be the result of an act or omission of the accused or of a subordinate; and when the oVence was committed, the accused or the subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim.229 The equivalent provision in the Rome 224 225 226 227

228 229

Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 631. Ibid., para., 631; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 146. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 593. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 563. Also: Blagojevic´ (IT02-60-T), Judgment, 17 January 2005, para. 625; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 247; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 585; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 77; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 148–151. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 52. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 117. Also: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 271–272; Vasiljevic´ (IT-98-32-T),

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Statute limits the scope of ‘other inhumane acts’ by requiring that they be ‘of a similar character intentionally causing great suVering, or serious injury to body or to mental or physical health’.230 Serious physical and mental injury, falling short of murder, can be prosecuted as ‘other inhumane acts’.231 Criminal behaviour deemed in judgments of the tribunals to fall within ‘other inhumane acts’ has included mutilation and other types of severe bodily harm, beatings and other acts of violence, serious physical and mental injury, inhumane and degrading treatment, forced prostitution, and forced disappearance.232 In Akayesu, an ICTR Trial Chamber found that acts of sexual violence that were not subsumed within other paragraphs of the crimes against humanity provision could be prosecuted as other inhumane acts. These included the forced undressing and public display of Tutsi women, and the forcing of women to perform exercises naked in public near the bureau communal.233 In another case, an ICTR Trial Chamber found that the interahamwe had committed various indignities to the body of a Tutsi woman, apparently after they had raped and killed her. They had also cut oV the breast of a Tutsi girl, and then licked it. The Trial Chamber said: [T]hese acts constitute a serious attack on the human dignity of the Tutsi community as a whole. Cutting a woman’s breast oV and licking it, and piercing a woman’s sexual organs with a spear are nefarious acts of a comparable gravity to the other acts listed as crimes against humanity, which would clearly cause great mental suVering to any members of the Tutsi community who observed them. Furthermore, given the circumstances under which these acts were committed, the Chamber finds that they were committed in the course of a widespread attack upon the Tutsi civilian population.234

As a residual category, other inhumane acts may often overlap with the crime against humanity of persecution. It has been held that because persecution requires an additional element, namely the discriminatory intent or motive, where a conviction might be entered as either persecution or other inhumane acts, the tribunal should opt for the more specific category, which

230

231 232 233 234

Judgment, 29 November 2002, para. 234; Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 152; Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 626. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1)(k). Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 239. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 208. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 688, 697. Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, paras. 934–936.

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is persecution.235 For this reason, other inhumane acts have also been said to have a ‘subsidiary nature’.236 A controversial example of a gap within the specific crimes against humanity provisions is ‘deportation’, which in some judgments has been held not to include forced displacement that does not involve international borders. Although this category of crime against humanity was enlarged in the Rome Statute, with its reference to ‘[d]eportation or forcible transfer of population’,237 an ICTY Trial Chamber was concerned that interpreting ‘deportation’ to include forcible displacement might violate the principle nullum crimen sine lege. Rather than convict based upon an expansive definition of deportation, it concluded that forcible displacement within a country’s own borders amounted to ‘other inhumane acts’.238 A year later, another Trial Chamber, in Stakic´, showed great discomfort with this position. The judgment notes that the category of other inhumane acts ‘may well be considered to lack suYcient clarity, precision and definiteness, that is to violate the ‘‘principle of certainty’’, to qualify as law in order to satisfy the principle of nullum crimen sine lege, a fundamental principle of criminal law’.239 The Trial Chamber pointed out that the concept of forcible transfer was not unknown to the drafters of the ICTY Statute, because they included it in article 4, as one of the punishable acts of genocide (forcible transfer of children from one group to another). Therefore, ‘[t]he fact that forcible transfer is not explicitly mentioned in Article 5 (Crimes Against Humanity) provides additional support for not considering it as part of ‘‘other inhumane acts’’, as distinct from deportation, enumerated explicitly in Article 5(2)(d)’.240 The Stakic´ Trial Chamber’s finding is only one manifestation of a clear unease among judges at the tribunals with the imprecise nature of the category of other inhumane acts.241 It is interesting that both of the trial chambers in these contradictory opinions were preoccupied by the nullum crimen issue, yet they found room within the definition of crimes against humanity – albeit in diVerent provisions – so as to convict the accused.

235 236 237

238

239

240 241

Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 676. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1)(d). Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 523. Also: Kupresˇkic´ et al. (IT-9516-T), Judgment, 14 January 2000, para. 566; Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 630; Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal, 2 February 2005, para. 34. Stakic´ (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 131 (emphasis in the original). Ibid. Also: Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 563.

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There is also something of an overlap between ‘other inhumane acts’ and war crimes. In one of the rare ICTY prosecutions for ‘battlefield law’, Bosnian Serb General Galic´ was convicted of the crime against humanity of ‘inhumane acts’ for the ‘coordinated and protracted campaign of sniping, artillery, and mortar attacks upon civilian areas and the civilian population of Sarajevo, resulting in the suVering and injury of civilians’.242 The potential consequence of this ruling is to make all war crimes involving suVering and injury of civilians punishable as crimes against humanity. It has been argued that the Rome Statute, with its somewhat more detailed provision on other inhumane acts (‘other inhumane acts of a similar character intentionally causing great suVering, or serious injury to the body or to mental or physical health’), may provide a good yardstick. But according to one judgment, the Rome Statute ‘fails to provide an indication, even indirectly, of the legal standards which would allow us to identify the prohibited inhumane acts’.243 Alternatively, it has been suggested that guidance on the scope of other inhumane acts is to be found in international human rights standards, such as the 1948 Universal Declaration of Human Rights and the two International Covenants: ‘Drawing upon the various provisions of these texts, it is possible to identify a set of basic rights appertaining to human beings, the infringement of which may amount, depending on the accompanying circumstances, to a crime against humanity.’244 The problem here is that the human rights instruments cover a broad range of norms that cannot, by any stretch of the imagination, be related to international criminality. For example, the International Covenants prohibit imprisonment for debt, and guarantee the right to royalties for copyright owners. For this reason, the problems of legal certainty and of proportionality do not seem to be solved by reference to the human rights instruments. 242 243 244

Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 151. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 565. Ibid.

8 War crimes

Hersch Lauterpacht famously wrote: ‘If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law.’1 Nevertheless, the concept of laws of war has existed at least since Achilles tied the corpse of the dead warrior Hector to his chariot and dragged it around the walls of Troy, and even before. Evidence of the customary laws of war has traditionally been found in the practice of national military tribunals, and in manuals dealing with the laws of war prepared for use by various armed forces, but it can also be identified in literature, like the plays of Shakespeare,2 and in the historic works of public international law. Of more recent vintage is the suggestion that violations of the laws and customs of war were punishable oVences that engaged the criminal responsibility of individuals. With little or no hesitation, the Commission on Responsibilities established at the Paris Peace Conference in 1919 concluded that ‘[a]ll persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of oVences agains the laws and customs of war or the laws or humanity, are liable to criminal prosecution’.3 The Commission said that ‘[e]very belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty’ of war crimes, ‘if such persons have been taken prisoners or have otherwise fallen into its power’.4 These statements

1

2

3

4

Hersch Lauterpacht, ‘The Problem of the Revision of the Law of War’, (1952) 29 British Yearbook of International Law 360, at pp. 381–382. Theodor Meron, Henry’s Wars and Shakespeare’s Law, Perspectives on the Law of War in the Later Middle Ages, Oxford: Clarendon Press, 1993; Theodor Meron, ‘Crimes and Accountability in Shakespeare’, in War Crimes Law Comes of Age, Oxford: Clarendon Press, 1998, pp. 67–121. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at p. 117. Ibid., p. 21.

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were confirmed when the victorious allies included clauses in the Treaty of Versailles dealing with post-war prosecutions.5 Yet they did not finally insist upon judging German war criminals, and left this to the national courts of Germany.6 The first genuinely international prosecutions for war crimes took place only at Nuremberg, where ‘violations of the laws or customs of war’ were said to include ‘murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’.7 The judgment of the International Military Tribunal confirmed that the crimes defined by Article 6, section (b), of the Charter were already recognised as war crimes under international law. They were covered by Articles 46, 50, 52 and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46 and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.8

The 1919 Commission on Responsibilities had referred to ‘violations of the laws and customs of war’,9 ‘breaches of the laws and customs of war’10 and to the ‘established laws and customs of war’.11 The dissident United States delegation spoke of ‘inhuman and improper acts of war’ and ‘inhuman or atrocious conduct during the prosecution of a war’.12 Article 228 of the Treaty of Versailles used the expression ‘acts in violation of the laws and customs of war’. The term ‘war crimes’ was also used in the name given by the allies to the Commission they established in 1943 whose mandate was to prepare the postwar prosecutions of Nazi criminals: the United Nations War Crimes Commission. The Charter of the Nuremberg Tribunal established subject-matter jurisdiction over ‘WAR CRIMES: namely, violations of the laws or customs

5

6 7

8

9

10

Treaty of Peace between the Allied and Associated Powers and Germany (‘Treaty of Versailles’), 1919 TS 4, arts. 228–230. Gerd Hankel, Die Leipziger Prozesse, Hamburg: Hamburger Edition, 2003. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. VI(b). France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, at p. 248. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at pp. 112, 115, 118, 121. 11 12 Ibid., p. 112. Ibid., p. 115. Ibid., p. 150.

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of war’.13 The Geneva Conventions of 1949 avoided the term ‘war crimes’, speaking instead of ‘grave breaches’ of certain of their provisions. But in 1977, when the Conventions were revised and updated with two Additional Protocols, it was said that ‘grave breaches of these instruments shall be regarded as war crimes’.14 More recently, the Rome Statute of the International Criminal Court also refers to ‘war crimes’.15 The subject-matter jurisdiction provisions in each of the three statutes includes what are colloquially described as ‘war crimes’, and journalists often refer to them as the ‘war crimes tribunals’. Certainly the three tribunals were each established to deal with atrocities committed during time of armed conflict. Moreover, in the case of the ICTY and the ICTR, their legitimacy derives from Chapter VII of the Charter of the United Nations, which requires ‘the existence of any threat to the peace, breach of the peace, or act of aggression’. But the three ad hoc tribunals do not refer to war crimes, and use the more modern generic term of ‘serious violations of international humanitarian law’. The ICTY Appeals Chamber wrote, in the Tadic´ jurisdictional decision: The expression ‘violations of the laws or customs of war’ is a traditional term of art used in the past, when the concepts of ‘war’ and ‘laws of warfare’ still prevailed, before they were largely replaced by two broader notions: (i) that of ‘armed conflict’, essentially introduced by the 1949 Geneva Conventions; and (ii) the correlative notion of ‘international law of armed conflict’, or the more recent and comprehensive notion of ‘international humanitarian law’, which has emerged as a result of the influence of human rights doctrines on the law of armed conflict.16

By the early 1990s, several sources of international law provided a degree of codification of the law of war crimes, more specifically the war crimes provision of the Charter of the Nuremberg Tribunal (and its sister institution known as the Tokyo Tribunal) and the so-called ‘grave breaches’ provisions of the four Geneva Conventions of 1949 and of their Additional Protocol I adopted in 1977. These provisions were considered to apply only to international armed conflicts. One of the great accomplishments of the ad hoc tribunals has been to extend the reach of international law dealing with war 13

14

15

16

Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 6(b). Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, art. 85(5). Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, arts. 5(1), 8, 31(1)(c). Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 87.

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crimes into the field of non-international armed conflicts (or civil wars). This reflects more general developments in international law, by which human rights and human security are no longer viewed as matters of purely national concern, sheltered from international oversight by notions of sovereignty and non-interference in internal aVairs. To the extent that war crimes take place within a purely internal conflict, they nevertheless attract international scrutiny, especially if they are left unpunished by the national justice system of the State where they have taken place. The specific categories of war crimes in the three statutes are discussed under distinct headings. However, several issues concern prosecution of war crimes generally. First, there must be an armed conflict. Second, a link or nexus must be established between the impugned act and the conflict. Third, the accused must be shown to have had knowledge of the armed conflict.

Existence of armed conflict International humanitarian law applies to armed conflict and, to a limited extent, in the period following armed conflict. The existence of an armed conflict is therefore an element of prosecution for war crimes.17 Atrocities committed in time of peace may be prosecuted as genocide or crimes against humanity, but they cannot fall within the scope of war crimes. In its first significant ruling, the Appeals Chamber of the ICTY declared that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until . . . in the case of internal conflicts, a peaceful settlement is reached.18

These words have been repeatedly cited in judgments of the international tribunals,19 and are really beyond any debate. The existence of an armed conflict might be viewed as a contextual element for the prosecution of war crimes. Unlike the case of crimes against humanity 17

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Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 22; Furundzˇija (IT-9517/1-T), Judgment, 10 December 1998, para. 258. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70. Also: Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 56. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 56; Akayesu (ICTR-964-T), Judgment, 2 September 1998, para. 619; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 92; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 63; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 481; Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 16.

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and genocide, where it must be shown that there is a qualitative or quantitative dimension to the acts setting them apart from ‘ordinary’ crimes of violence, no such threshold exists with respect to war crimes. In theory, then, a single and quite isolated act may be a war crime subject to the jurisdiction of the tribunals, although it is unlikely that this would ever attract the attention of the Prosecutor. Of interest in this respect is the attempt by the drafters of the Rome Statute of the International Criminal Court to limit jurisdiction to ‘war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes’.20 The question is more sensitive than it may first appear, however, especially where non-international armed conflicts are concerned. Most States take a conservative view of this, essentially arguing that what outsiders may view as a civil war is actually nothing more than mild unrest. The consequence is important, because once it is determined that there is armed conflict, an evolving body of international humanitarian law becomes applicable. The authorities note that the threshold for internal armed conflict and no conflict at all involves an analysis of the level of intensity of the conflict and the degree of organisation of the parties to the conflict.21 Thus, armed conflict ‘suggests the existence of hostilities between armed forces organized to a greater or lesser extent’ which necessarily ‘rules out situations of internal disturbances and tensions’.22 Furthermore, ‘mere acts of banditry, internal disturbances and tensions, and unorganised and short-lived insurrections’23 as well as ‘terrorist activities’ are ruled out.24 Whether or not an armed conflict exists is an evidentiary matter, to be determined at trial and not in preliminary proceedings.25 The test is objective, and does not depend upon any subjective characterisation by the parties.26 When the ICTY was being established, the United States proposed that the Security Council determine the existence of an armed conflict, including whether the conflict was international or non-international.27 However, the Security Council did not pronounce itself on the issue, leaving it for judicial

20 21 22 23 24 25

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Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(1). Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 619–621, 625. Ibid., para. 620. Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 92. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 572. Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 603–604; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 101; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 357. ‘Letter from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General (April 5, 1993)’, UN Doc. A/25575, at p. 6.

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determination. But there has been little doubt that there existed a state of armed conflict in Croatia in 1991,28 in Bosnia and Herzegovina from 1992 to 1995,29 in Rwanda in 1994,30 and in Sierra Leone from 1996 until 2002. However, prosecution of Kosovar Albanian nationalists for atrocities committed during 1998 and early 1999 has provided for considerable dispute. The Dayton Agreement of November–December 1995 brought peace to the region, and one that was enforced by a large international military contingent. The Kosovo conflict began to heat up in 1998 but only became full-blown war in March 1999, with the launching of NATO’s bombing campaign. The issue that the ICTY will need to determine is at what point what were clearly ‘troubles and disturbances’ escalated into armed conflict. According to the indictment in Limaj, ‘[n]o later than early 1998, after years of increasing tension and violence, armed conflict commenced between Serb forces and the KLA in Kosovo. This development was consistent with the KLA’s generally militant approach of active, armed resistance to Serb rule in Kosovo.’31 The same issue is also being debated in the Milosˇevic´ trial, where it is alleged that the defendant participated in atrocities committed early in 1999. Referring to testimony showing that the Kosovo Liberation Army (KLA) was a wellorganised fighting force, that it controlled territory in Kosovo, and that there was armed conflict of considerable intensity, the Trial Chamber dismissed a challenge from the amici curiae who had argued that there was no armed conflict in Kosovo until March 1999.32

International or non-international armed conflict That the laws of war govern internal as well as international wars has long been recognised. One of the landmarks in the evolving law of armed conflict is the Lieber Code, which was promulgated by President Lincoln as General on 24 April 1863 with the intent that it apply to the Union armies during the Civil War. However, the first international treaties on the subject were applicable to those States that had ratified them, and their scope was clearly confined to wars between States parties, that is, to international armed conflict.33 The first humanitarian law treaties to contemplate non-international 28 29

30 31 32

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E.g., Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 217. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 51–59 (between the Croatian Defence Council (‘the HVO’) and the Army of Bosnia and Herzegovina (‘the AbiH’)). Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 561. Limaj et al. (IT-03-66-PT), Second Amended Indictment, 6 November 2003, para. 4. Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 14–40. Convention Concerning the Laws and Customs of War on Land (Hague IV), 3 Martens Nouveau Recueil (3d) 461, art. 2: ‘The provisions contained in the Regulations referred

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armed conflict were the 1949 Geneva Conventions which, in common article 3, acknowledged the ambit of certain core norms to ‘the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’. The modest beginning of common article 3 led to a more comprehensive treaty intended to apply to non-international armed conflict, Additional Protocol II to the 1949 Geneva Conventions, which was adopted in 1977. When the ICTY Statute was drafted, in 1993, the prevailing view among specialists was that international law did not contemplate individual liability for war crimes committed during non-international armed conflict. The International Committee of the Red Cross, in its contribution to the debate on establishing the ICTY, wrote that ‘according to humanitarian law as it stands today, the notion of war crimes is limited to situations of international armed conflict’.34 In a comment on the ICTY Statute in the authoritative American Journal of International Law, Professor Theodor Meron (who was subsequently elected judge and then President of the ICTY) expressed his concerns that articles 2 and 3 of the Statute applied only to international armed conflict.35 According to Payam Akhavan, ‘the Secretary-General had excluded common Article 3 and Additional Protocols I and II from the Yugoslav Statute on the grounds that they were not ‘‘rules of international humanitarian law which are beyond doubt part of the customary law’’ ’.36 The Final Report of the Commission of Experts, which was published in February 1994, that is, after the establishment of the ICTY, noted: ‘Further, the content of customary law applicable to internal armed conflict is debatable. As a result, in general, unless the parties to an internal armed conflict agree otherwise, the only oVences committed in internal armed conflict for which universal jurisdiction exists are ‘‘crimes against humanity’’ and genocide, which apply irrespective of the conflicts’ classification.’37 This explains why the two war crimes provisions in the ICTY Statute were derived from treaty law that unquestionably applied to international armed conflict. That this was the intent of the Secretary-General is confirmed from

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to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.’ ‘Preliminary Remarks on the Setting-up of an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia’, DDM/JUR/442 b, 25 March 1993, para. 4. Theodor Meron, ‘War Crimes in Yugoslavia and the Development of International Law’, (1994) 88 American Journal of International Law 78, at p. 80. Payam Akhavan, ‘The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment’, (1996) 90 American Journal of International Law 501, at p. 503. UN Doc. S/1994/674, p. 13, para. 42.

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his report to the Security Council.38 It must have come as a surprise to the Secretary-General when some members of the Council expressed their view that international criminal liability might also apply during non-international armed conflict. For example, the United States of America noted the applicability of the rules on internal armed conflict contained in Article 3 of the Geneva Conventions as well as ‘the 1977 Additional Protocols’, adding that it understood its view to be shared by ‘other members of the Council’.39 Eighteen months later, when the ICTR was being created, the SecretaryGeneral was more daring, recognising jurisdiction of the new Tribunal over ‘Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II’.40 The Secretary-General said that the Security Council was taking a ‘more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal’, in that it was including crimes ‘regardless of whether they were considered part of customary international law and whether customary international law entailed individual criminal responsibility’.41 This was yet another miscalculation. Shortly afterwards, the Appeals Chamber ruled that article 3 of the ICTY Statute, which encompasses ‘violations of the laws or customs of war’, contemplates all serious violations of international humanitarian law, even those committed in non-international armed conflict. In the Tadic´ jurisdictional decision of 2 October 1995, the ICTY Appeals Chamber declared that the reference to ‘laws or customs of war’ applied to a broad range of serious violations of international humanitarian law committed during non-international as well as international armed conflict.42 As Judge Abi-Saab – who himself wanted to go even further, and hold the concept of ‘grave breaches’ to be applicable in non-international armed conflict – declared, creation of the ad hoc tribunals provided judges with an opportunity to eVect the ‘further rationalisation’ of a body of law whose normative provisions were drawn from diVerent, and somewhat inconsistent, treaty provisions.43 The Appeals Chamber declared:

38

39 40 41

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‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), paras. 37–44. UN Doc. S/PV.3217 (25 May 1993), p. 15. ICTR Statute, art. 4. ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134, para. 12. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 137. Also: Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 161; Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 132. Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

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Article 3 . . . confers on the International Tribunal jurisdiction over any serious oVence against international humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provision laying down that any ‘serious violation of international humanitarian law’ must be prosecuted by the International Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal.44

The ICTY has since described article 3 as being an ‘umbrella rule’.45 The purpose of article 3 is to ensure that the Tribunal’s jurisdiction over serious violations of international humanitarian law is ‘watertight and inescapable’.46 But it was far from obvious, in October 1995 when Tadic´ was issued, that article 3 of the Statute could be used for prosecutions in the case of noninternational armed conflict. The Appeals Chamber asked, rhetorically, why civilians should be protected from a range of atrocities when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State?47 Yet there was an answer, and the judges knew it well, of course. States have always been reluctant to recognise the reach of international criminal law into their own domestic sphere when human rights violations committed during internal conflict, or peacetime, for that matter, are concerned. That the debates in the Security Council were equivocal was acknowledged by the Appeals Chamber; the most it could draw from the minutes of the 25 May 1993 meeting was the conclusion that the Council intended to empower the International Tribunal to adjudicate violations of humanitarian law whether or not these occurred in non-international or international armed conflict, and that as a result, ‘the Statute should therefore be construed to give eVect to that purpose’.48

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45 46

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Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 91. Also: Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 68; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 33; Milosˇevic´ (IT-02–54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 15. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 132–133. Kordic´ et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 18. Also: Kvocˇka (IT-98-30/1-PT), Decision on Preliminary Motions Filed by Mladko Radic´ and Miroslav Kvocˇka Challenging Jurisdiction, 1 April 1999. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 97. Ibid., para. 77.

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Moreover, there remain logical inconsistencies with the interpretation provided by the Appeals Chamber. If the intent was really to create an umbrella rule covering all serious violations of international humanitarian law, why did the Council even bother with a specific provision dealing with grave breaches (article 2) which would only confuse things? And where do grave breaches of Additional Protocol I belong?49 Article 2 of the Statute speaks of grave breaches of the Conventions but not Additional Protocol I. The Commission of Experts had suggested that grave breaches of Additional Protocol I were included in article 2, but this is plainly not what the provision itself states. The better view, in accordance with the ‘umbrella rule’ theory, is that grave breaches of Additional Protocol I constitute other serious violations of international humanitarian law, and that they are therefore incorporated implicitly within article 3 of the ICTY Statute. But does it make any sense to create a specific provision for grave breaches of the Conventions, and then put grave breaches of the Protocol to the Conventions in a vague umbrella rule where their presence must be deduced according to principles of interpretation? The reasoning in Tadic´ is not always very convincing, and the inconsistencies are highlighted in the succinct but perceptive separate opinion of Judge Li. The judges of the majority undertook a rather bold and dramatic step in terms of progressive judicial development of international humanitarian conflict. Both the Secretary-General and the Security Council, evidently concerned by issues of retroactive application of criminal law, hesitated to go as far and to be as explicit. Moreover – and on this point, the Appeals Chamber is silent – if the Security Council really wanted to give the ICTY such residual or umbrella jurisdiction, why did it not do the same with the ICTR, established some eighteen months later? In his report on the ICTR, the SecretaryGeneral said that the Security Council ‘has elected to take a more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal’,50 a statement that makes sense if article 3 of the ICTY Statute is interpreted narrowly but that is simply contrary to reality if the expansive approach to the provision proclaimed by the Appeals Chamber in Tadic´ is followed. The ICTR’s jurisdiction with respect to war crimes is confined to serious violations of common article 3 and of Additional Protocol II, and there are many serious violations of international humanitarian law 49

50

Defendants have argued that Additional Protocol I crimes are not included within the Statute, because there is no reference to them in the report of the Secretary-General. This argument has been rejected: Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss for Lack of Jurisdiction Portions of the Amended Indictment Alleging ‘Failure to Punish’ Liability, 2 March 1999. ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134, para. 12.

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that do not fit within these legal texts. Thus, the subject-matter jurisdiction of the ICTR with respect to war crimes is considerably smaller than that of the ICTY, and this makes no sense whatsoever. Be that as it may, the innovation of the Appeals Chamber soon received a convincing echo when the Rome Conference on the International Criminal Court agreed to codify a range of ‘war crimes’ committed in non-international armed conflict.51 It is now beyond question that there is international criminal responsibility for war crimes committed during non-international armed conflict and this is undoubtedly thanks to the bold initiative of the four judges of the majority in the Appeals Chamber in the Tadic´ jurisdictional decision.

Nexus with armed conflict Not all crimes committed during armed conflict are war crimes. Ordinary criminal acts – murder, rape, robbery, child and spousal abuse, fraud – continue to be perpetrated, but they do not become war crimes merely because there is a state of armed conflict. The case law of the tribunals holds that there must be a link or nexus between the acts of the accused and the armed conflict.52 This is sometimes explained as follows: ‘the oVence must be closely related to the hostilities or committed in conjunction with the armed conflict’.53 The nexus is an element of the oVence, and the burden of proving it lies with the Prosecutor.54 According to the Appeals Chamber: The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed . . . In determining whether or not the act in question is suYciently related to the armed conflict, the Trial Chamber may take into account . . . the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the

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Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2) (c)–(f). Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 562; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, para. 32; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 69; Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 438, n. 807. Also: Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 105; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 169. Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 104. Ibid., paras. 104–105; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 259–262; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 105; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 368–369.

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fact that the crime is committed as part of or in the context of the perpetrator’s oYcial duties.55

Especially in civil wars, where the concept of fronts so familiar in international armed conflict does not apply in the same way,56 it is not always easy to identify zones of conflict. The tribunals have held that ‘[e]ven if substantial clashes were not occurring in the [specific region] at the time and place the crimes were allegedly committed . . . international humanitarian law applies. It is suYcient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.’57 In Kunarac, the ICTY Appeals Chamber said: The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved. A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place.58

For example, in Bagilishema, an ICTR Trial Chamber said it was ‘not necessary that actual armed hostilities have broken out in Mabanza commune and Kibuye pre´fecture for Article 4 of the Statute to be applicable. Moreover, it is not a requirement that fighting was taking place in the exact time-period 55 56

57

58

Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 58–59. Referring to the International Committee of the Red Cross Commentary to the fourth Geneva Convention, an ICTY Trial Chamber said that in the case of international armed conflict, the relevant norms of international humanitarian law apply throughout the territory of the warring States until the general cessation of hostilities, unless the existence of a separate internal armed conflict in part of the larger territory which is unrelated to the international armed conflict has been proven. Delalic´ et al. (IT-96-21T), Judgment, 16 November 1998. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 32; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 69; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 102–103; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 635; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 182–183; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 284; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 367; Bagilishema (ICTR95-1A-T), Judgment, 7 June 2001, para. 101; Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 25; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 58–59. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 57. Also: Tadic´ (IT-94-1AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 70; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 64.

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when the acts the oVences alleged occurred were perpetrated.’59 In Tadic´, the ICTY Trial Chamber said: It would be suYcient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties. It is not, however, necessary to show that armed conflict was occurring at the exact time and place of the proscribed act alleged to have occurred . . . nor is it necessary that the crime alleged takes place during combat, that it be part of a policy or of a practice oYcially endorsed or tolerated by one on the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict; the obligations of individuals under international humanitarian law are independent and apply without prejudice to any question of the responsibility of States under international law.60

In a subsequent judgment, the Appeals Chamber said that a nexus exists as long as the crime is ‘shaped by or dependent upon the environment – the armed conflict – in which it is committed’.61 Indications will include the fact that the perpetrator is a combatant, the fact that the victim is a noncombatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s oYcial duties.62 Virtually all of the ICTR Trial Chamber rulings have invoked the lack of a nexus in refusing to convict for war crimes. For example, in the Akayesu case, it was established that the accused was the mayor or bourgmestre of the commune, that he held an executive civilian position in the territorial administrative subdivision of commune, and that during the genocide he was seen wearing a military jacket and carrying a rifle. But for Trial Chamber I, these facts were not significant in demonstrating that Akayesu actively supported the war eVort. Furthermore, the Chamber finds that the limited assistance given to the military by the accused in his role as the head of the commune does not suYce to establish that he actively supported the war eVort . . . [I]t has not been proved beyond reasonable doubt that Akayesu was a member of the armed forces, or that he was legitimately mandated and expected, as a

59 60 61 62

Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 105. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 573. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 57–58. Ibid., para. 59.

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public oYcial or agent or person otherwise holding public authority or de facto representing the Government, to support or fulfil the war eVorts.63

In Kayishema and Ruzindana, an ICTR Trial Chamber found that the Prosecutor had failed to prove the nexus, noting that the ‘allegations show only that the armed conflict had been used as pretext to unleash an oYcial policy of genocide . . . [S]uch allegations cannot be considered as evidence of a direct link between the alleged crimes and the armed conflict.’64 These acquittals for war crimes have been, by and large, reversed by the ICTR Appeals Chamber. It has held that the Trial Chambers were wrong to conclude that war crimes could only be committed by commanders, combatants and other members of the armed forces. While this would usually be the case, as a question of fact, the Appeals Chamber found it mistaken to apply a ‘public agent or government representative test’ in interpreting article 4 of the ICTR Statute and in holding that the category of persons likely to be held responsible for violations of Article 4 . . . includes only . . . individuals . . . belonging to the armed forces under the military command of either of the belligerent parties, or to individuals who were legitimately mandated and expected, as public oYcials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war eVorts.65

In Rutaganda, the Appeals Chamber agreed with the Prosecutor that the interahamwe militia, which was aYliated with a political party, was ‘the instrument of the military in extending the scope of the massacres’, and that its leaders could be convicted of war crimes, as well as of genocide and crimes against humanity.66 There is therefore no legal obstacle to civilians being found guilty of war crimes; this point had already been well established in the post-Second World War prosecutions.67

Knowledge of armed conflict Probably because the existence of armed conflict on the territories over which the tribunals exercise jurisdiction has really been beyond dispute, the Prosecutor appears to have essentially let the judges deduce that the accused knew of the existence of the conflict, and this does not seem to have been denied in defence. Knowledge by the accused of the existence of the armed conflict is, nevertheless, an essential element of the crime. 63 64 65 66 67

Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 642–643. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 603. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 425; also para. 432. Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, paras. 440–441. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 274–275.

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This aspect of war crimes prosecution received considerable attention during the drafting of the Elements of Crimes of the Rome Statute.68 They declare that it must be proven that the alleged perpetrator ‘was aware of factual circumstances that established the existence of an armed conflict’. But the knowledge requirement is tempered by three factors: There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or noninternational; In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international; There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms ‘took place in the context of and was associated with’.69

Knowledge of relevant facts is only one aspect of what is more generally referred to as the ‘mental element’ of the oVence. The mental element is composed of both knowledge and intent. No war crime – for that matter, no crime at all – is committed if the act is not committed intentionally. Specific issues concerning intent need to be addressed in the context of the various crimes. However, it is clear that war crimes prosecutions do not generally require proof of a motive or, as it is sometimes called by the tribunals, a ‘discriminatory intent’. In Aleksovski, the Appeals Chamber said: There is nothing in the undoubtedly grave nature of the crimes falling within Article 3 of the Statute, nor in the Statute generally, which leads to a conclusion that those oVences are punishable only if they are committed with discriminatory intent. The general requirements which must be met for prosecution of oVences under Article 3 . . . do not include a requirement of proof of a discriminatory intent or motivation.70

Grave breaches of the Geneva Conventions Of the three international tribunals under consideration here, only the ICTY Statute provides explicitly for jurisdiction over ‘grave breaches of the Geneva Conventions of 1949’.71 Article 2 of the Statute says that the tribunal has jurisdiction over

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See: Knut Do¨rmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court, Sources and Commentary, Cambridge: Cambridge University Press, 2002, pp. 20–22. ‘Elements of Crimes’, ICC-ASP/1/3, p. 108, e.g., art. 8(2)(a)(1), para. 3. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 20. Some commentators have criticised the Secretary-General as ‘shortsighted’ for omitting grave breaches from the SCSL Statute: Nicole Fritz and Alison Smith, ‘Current Apathy

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the following acts against persons or property protected under the provisions of the relevant Geneva Convention: a. wilful killing; b. torture or inhuman treatment, including biological experiments; c. wilfully causing great suVering or serious injury to body or health; d. extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; e. compelling a prisoner of war or a civilian to serve in the forces of a hostile power; f. wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; g. unlawful deportation or transfer or unlawful confinement of a civilian; h. taking civilians as hostages.

Each of the four Geneva Conventions of 1949, as well as Additional Protocol I to the Conventions of 1977, contains a provision defining ‘grave breaches’. Agreed to at a relatively early stage in the development of international criminal law, these texts represent a major development in that they recognise certain violations that were historically prohibited under the laws and customs of war as being subject to specific obligations, notably the duty to enact legislation making them crimes in national law, to investigate possible violations, to bring alleged perpetrators to justice ‘regardless of their nationality’, or to hand them over for prosecution to other States.72 The Geneva Conventions have been almost universally ratified, and their acceptance by the Socialist Federal Republic of Yugoslavia helped reassure the SecretaryGeneral and the Security Council that there was no issue here of retroactive application of criminal law. Early in the wars in the former Yugoslavia, the Security Council had warned the parties to the conflict that they were bound to comply with their obligations under international humanitarian law ‘and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches’.73 The interim report of the Commission of

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for Coming Anarchy: Building the Special Court for Sierra Leone’, (2001) 25 Fordham International Law Journal 391, at p. 408, fn. 85. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1949) 75 UNTS 31, art. 49; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 85, art. 50; Convention Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, art. 129; Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 146. UN Doc. S/RES/764 (1992). Also: UN Doc. S/RES/771 (1992). These references to the grave breach regime of the Geneva Conventions were noted by the Secretary-General in his report on the draft ICTY Statute. See: ‘Report of the Secretary-General Pursuant to

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Experts that had been established by the Security Council in October 1992 concluded that grave breaches and other violations of international humanitarian law had been committed in the territory of the former Yugoslavia, including wilful killing, ‘ethnic cleansing’, mass killings, torture, rape, pillage and destruction of civilian property, destruction of cultural and religious property and arbitrary arrests.74 With the exception of common article 3, the four Geneva Conventions, as well as Additional Protocol I,75 apply ‘to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties’,76 in other words, to conflicts of an international nature. Therefore, it is an element of any prosecution for grave breaches pursuant to article 2 of the ICTY Statute that there be an international armed conflict. It has been argued that by a progressive interpretation of the Geneva Conventions, the concept of grave breaches might be extended to non-international armed conflict. In the Tadic´ jurisdictional decision, Judge Abi-Saab argued for ‘a new interpretation of the Conventions as a result of the ‘‘subsequent practice’’ and opinio juris of the States parties: a teleological interpretation of the Conventions in the light of their object and purpose to the eVect of including internal conflicts within the regime of ‘‘grave breaches’’ ’.77 Judge Rodrigues, in a dissenting opinion, maintained that although article 2 of the ICTY Statute was derived from the Geneva Conventions, it was an autonomous provision within the Statute with no requirement of proof of an international armed conflict.78 These views have not, however, been endorsed by a majority of judges.79 The debate is of mainly theoretical interest, given

74 75

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Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), paras. 5–7. UN Doc. S/25274. Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, art. 1. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1949) 75 UNTS 31, art. 2; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 85, art. 2; Convention Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, art. 2; Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 2. Tadic´ (IT-94-1-AR72), Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (italics in the original); Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 202; Kordic´ et al. (IT-95-14/2PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999. Aleksovski (IT-95-14/1-A), Dissenting Opinion of Judge Rodrigues, Presiding Judge of the Trial Chamber, 25 June 1999, paras. 29–49. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 83–84.

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that all serious violations of international humanitarian law not covered by article 2 are subsumed within article 3.

Existence of an international armed conflict ˇ elebic´i cited the Commentary to the fourth Geneva A Trial Chamber in C Convention in defining international armed conflict: ‘ ‘‘[a]ny diVerence arising between two States and leading to the intervention of members of the armed forces’’ is an international armed conflict and ‘‘[i]t makes no diVerence how long the conflict lasts, or how much slaughter takes place’’ ’.80 In the first important prosecution before the ICTY, Dusˇko Tadic´ challenged the allegation that there had been an international armed conflict in Bosnia and Herzegovina. The conflict was, he insisted, a civil war and therefore excluded from the grave breaches provisions of the Geneva Conventions, and consequently he could not properly be found guilty of a violation of article 2 of the Statute. His arguments were successful at trial, and he was acquitted of the charges under article 2.81 The Appeals Chamber explained that what might begin as an internal armed conflict could ‘become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State’.82 In the case of Bosnia and Herzegovina, the second of these two scenarios was the applicable one, and as a result the Appeals Chamber considered the methodology for determining whether or not participants in what appeared to be an internal armed conflict were in fact acting on behalf of another State. There was some precedent for this, and the defence invoked it. In 1985, the International Court of Justice had examined the involvement of the United States of America within an essentially internal conflict in Nicaragua. The Court had concluded that in order to establish responsibility of another State for involvement in a civil war, it was necessary to demonstrate a high degree of control, going beyond eVective control over a military or paramilitary group and extending to direct control over the specific operations in which violations 80

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Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 208. See, for a more detailed discussion, Do¨rmann, Elements of War Crimes, pp. 23–28. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 608. Judge McDonald issued a dissenting opinion on this point: Tadic´ (IT-94-1), Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, 7 May 1997. Her views were subsequently endorsed by another Trial Chamber: Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 232–233. They were eventually confirmed by the Appeals Chamber: Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 85–86. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 84. Also: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 66.

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of international humanitarian law were committed.83 This is sometimes called the ‘agency test’ or the ‘eVective control test’. The Appeals Chamber found that the ‘Nicaragua test’ was too demanding, and proposed instead a more relaxed standard of ‘overall control’.84 As was subsequently explained, ‘an armed conflict, which is otherwise internal, is internationalised if a foreign state exercises ‘‘overall control’’ over the military forces of one of the parties to that conflict’.85 The Appeals Chamber explained: [C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.86

In questioning the wisdom of the International Court of Justice, the ICTY Appeals Chamber was also demonstrating that it saw no hierarchy within international judicial institutions.87 Despite criticism of its repudiation of the ‘Nicaragua test’, the ICTY Appeals Chamber has reaYrmed its support for the ‘overall control test’.88 Nevertheless, as a factual issue, the matter can be relitigated in subsequent cases, and ICTY Trial Chambers have refused to take

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Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) (Merits), [1986] ICJ Reports 14, para. 115. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 146. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 111; Delalic´ et al. (IT96-21-A), Judgment, 20 February 2001, para. 26. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 137 (emphasis in the original). Also: Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 184. Commentators have noted that it might have interpreted the Nicaragua case in such a way as to avoid formal disagreement with the International Court of Justice. Shane Spelliscy, ‘The Proliferation of International Tribunals: A Chink in the Armor’, (2001) 40 Columbia Journal of Transnational Law 143, at p. 170. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 134, 145; Delalic´ et al. (IT96-21-A), Judgment, 20 February 2001, paras. 33, 48, 50.

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judicial notice of the international nature of the conflict in Bosnia and Herzegovina.89 The Tadic´ case involved establishing the overall control by the Federal Republic of Yugoslavia over the Bosnian Serb military units, known as the Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska (VRS), after the formal withdrawal of the Yugoslav People’s Army (JNA) units in April 1992. The Appeals Chamber indicated that the VRS was really the reconstituted Serb units of the JNA, and that it continued to receive extensive financial, logistical and other assistance and support from Belgrade.90 ‘It was apparent that even after 19 May 1992 the Bosnian Serb army continued to act in pursuance of the military goals formulated in Belgrade’, the Appeals Chamber explained. ‘In this regard, clear evidence of a chain of military command between Belgrade and Pale was presented to the Trial Chamber and the Trial Chamber accepted that the VRS Main StaV had links and regular communications with Belgrade.’91 The ICTY has also established an international dimension to the conflict in Bosnia and Herzegovina through the involvement of Croatian forces.92 Between 5,000 and 7,000 members of the Croatian Army, as well as some members of the Croatian Armed Forces, were found to be present in the territory of Bosnia and Herzegovina. They were involved, both directly and through their relations with the Croatian Community of Herceg-Bosna and the Croatian Defence Council, in clashes with Bosnian government forces in central and southern Bosnia. Applying the more stringent test of ‘agency’, in line with the Nicaragua case of the International Court of Justice, a Trial Chamber concluded that ‘Croatia, in addition to assisting the Bosnian Croats . . . inserted its own armed forces into the conflict on the territory of Bosnia and exercised a high degree of control over both the military and political institutions of the Bosnian Croats’.93 In Blasˇkic´, which was judged after the ICTY Appeals Chamber had repudiated the Nicaragua case, another Trial Chamber concluded that ‘[b]ased on Croatia’s direct intervention in [the Republic of Bosnia and Herzegovina]’ there was ‘ample proof to characterise the conflict as international’, and that Croatia’s ‘indirect control over the [Croatian Defence Council] and [Croatian Community of Herceg-Bosna]’

89

90 91

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Simic´ et al. (IT-95-9-PT), Decision on Pre-trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 151. Ibid., para. 152. Also: Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 33, 48, 50. Rajic´ (IT-95-12), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, paras. 13, 26, 32. Ibid.

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and ‘indirect intervention’ would ‘permit the conclusion that the conflict was international’. The Trial Chamber found that ‘Croatia, and more specifically former President Tudjman, was hoping to partition Bosnia and exercised such a degree of control over the Bosnian Croats and especially the [Croatian Community of Herceg-Bosna] that it is justified to speak of overall control . . . [T]he close ties between Croatia and the Bosnian Croats did not cease with the establishment of the [Croatian Community of Herceg-Bosna].’94 The issue of the international dimension of the armed conflict is an evidentiary one, and in principle must be established by the Prosecutor in each individual case. Because this is inevitably a time-consuming exercise, in 1997 the Prosecutor began amending indictments so as to withdraw charges based on article 2.95 Amendments were made in cases where the accused was relatively low-level,96 and where the violations would just as easily be established under article 3.97

Victim must be a ‘protected person’ The Geneva Conventions were intended to protect the ‘victims of war’. They contrast with the Hague Conventions, which were also concerned with issues relating to the rights of the combatants themselves. Each of the four Geneva Conventions concerns a specific category of victim: ‘Wounded and Sick in Armed Forces in the Field’ (Convention I), ‘Wounded, Sick and Shipwrecked Members of Armed Forces at Sea’ (Convention II), ‘Prisoners of War’ (Convention III) and ‘Civilians’ (Convention IV). These categories of victim are defined as ‘protected persons’, and prosecution of a grave breach of the Conventions requires proof that the victim was such a ‘protected person’.98 The concern with ‘protected persons’ can be seen in the introductory paragraph of article 2 of the Statute, with its reference to ‘persons or property 94

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Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 83–123. The conclusion that the conflict was international in character was not contested on appeal: Blasˇkic´ (IT-95-14A), Judgment, 29 July 2004, para. 171. Also: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 108–146. Sean D. Murphy, ‘Developments in International Criminal Law: Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) 93 American Journal of International Law 57, at p. 68. See: Furundzˇija (IT-95-17/1-T), Amended Indictment, 2 June 1998; Jelisic´ (IT-95-10-T), Amended Indictment, 3 March 1998; Prosecutor v. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001; Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000. In some cases, no amendments were sought: e.g., the Alexsovski and Dokmanovic´ cases. It has been held that the Prosecutor has the discretion to categorise acts as falling under article 3 rather than article 2: Furundzˇija (IT-95-17/1-T), Decision on the Defendant’s Motion to Dismiss Counts 13 and 14 of the Indictment (Lack of Subject-Matter Jurisdiction), 29 May 1998. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 176.

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protected under the provisions of the relevant Geneva Convention’, and in some of the specific paragraphs of article 2. For example, paragraph (h) does not generally prohibit the taking of hostages, but only ‘taking civilians as hostages’. The Conventions contain no specific provisions attempting to define concepts of soldiers and soldiers who are hors de combat, because they are wounded, sick or shipwrecked, or have been taken prisoner. They need only belong to one of the parties to the conflict. But in the case of the fourth Convention, clearly not all civilians are protected, and a detailed text attempts to set out who precisely is covered: Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.99

The provision concludes by noting that persons protected by the other three conventions are not deemed protected persons under the fourth Convention. It was argued that Bosnian Muslims, for example, could not be considered ‘protected persons’ with respect to the fourth Geneva Convention because they were not ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. Their persecutors were also of Bosnian nationality. To resolve the problem, the Appeals Chamber developed an original approach to article 4 of the fourth Geneva Convention, holding that the reference to nationality with respect to protected persons was not appropriate, and that it was preferable to speak of genuine bonds of loyalty and allegiance. In this manner, Bosnian Muslims were not in fact ‘nationals’ of Bosnia and Herzegovina, or at least of the regions controlled by the Bosnian Serb forces, known as the Republika Srpska. According to the Appeals Chamber: Th[e] legal approach [for defining protected persons], hinging on substantial relations more than on formal bonds, becomes all the more important in present-day international armed conflicts. While previously wars were primarily between well-established States, in modern interethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality

99

Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 4.

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may become the grounds for allegiance. Or, put another way, ethnicity may become determinative of national allegiance. Under these conditions, the requirement of nationality is even less adequate to define protected persons.

It is ‘the substance of relations’ between the parties, ‘not . . . their legal characterisation’ which is controlling. ‘[T]he victims were ‘‘protected persons’’ as they found themselves in the hands of armed forces of a State of which they were not nationals’ and they ‘did not owe allegiance to (and did not receive the diplomatic protection of) the State (the FRY) on whose behalf the Bosnian Serb armed forces had been fighting’.100 Resisting criticism of such judicial innovation, the ICTY Appeals Chamber has subsequently insisted that ‘the interpretation of the nationality requirement of Article 4 of the Geneva Convention IV in the Tadic´ Appeals Judgment does not constitute a rewriting of Geneva Convention IV or a ‘‘re-creation’’ of the law’.101 It has also dismissed charges that by expanding the concept of ‘protected persons’, the ICTY was responsible for retroactive criminal law.102 But the debate highlights the diYculty of applying the grave breaches regime to what was in essence an internal armed conflict, despite the fact that it was ‘internationalised’ by the ‘overall control’ of both Serbia (then, the Federal Republic of Yugoslavia) and Croatia. All of this was of little practical significance, because the atrocities classified as ‘grave breaches’ by the ICTY were also, invariably, violations of the laws or customs of war, covered by article 3 of the Statute as well as, usually but not always, crimes against humanity contemplated by article 5 of the Statute. There have been no convictions that have relied exclusively on a violation of article 2. Article 2 consumed a great deal of judicial energy but added little or nothing to the eVectiveness of the ICTY.

‘Civilians’ defined The fourth Geneva Convention does not define the term ‘civilians’, but it has been said that ‘all persons who are not combatants might be considered 100

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Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 166–169. Also: Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 126–127; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 152; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 81, 83, 84, 96; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 151; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, paras. 167–182. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 73 (footnotes omitted); Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 181. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 126–127; Tadic´ (IT-94-1A), Judgment, 15 July 1999, para 181. But it is noteworthy that the drafters of the Elements of Crimes of the International Criminal Court refused to endorse the approach of the ICTY, leaving this issue to the discretion of the future judges of the Court. See Do¨rmann, Elements of War Crimes, p. 29.

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civilians’.103Additional Protocol I adds that ‘[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian’.104 The essentially negative definition of civilian turns the inquiry to the task of defining the concept of ‘combatants’. The fourth Geneva Convention is also deficient in this respect, and it was not until the 1977 Aditional Protocols that adequate eVorts were made to clarify the term. They were driven by the fact that many modern conflicts (the Vietnam war was foremost at the time) involved fighters who were combatants by night, yet peasants by day, and that clarification of this concept was necessary in order to protect civilians who were genuinely uninvolved in the conflict. Specifically, as article 43 of Additional Protocol I declares, ‘[i]n order to promote the protection of the civilian population from the eVects of hostilities’, combatants are required to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Combatants are also required to carry their arms openly during military engagements and when they are visible to the adversary while preparing attacks.

Punishable acts Article 2 of the ICTY Statute contains eight paragraphs listing specific punishable acts of grave breaches of the Geneva Conventions. Constituting an exhaustive list, its language is drawn from article 147 of the fourth Geneva Convention. Article 2 does not include the grave breaches of Additional Protocol I.

Wilful killing Obviously not all killing in war constitutes a war crime. According to Knut Do¨rmann, ‘the notion of ‘‘wilful killing’’ must be limited to those acts or omissions which are contrary to existing treaty and customary law of armed conflict’, examples being the summary execution of a captured member of the opposing forces suspected of espionage or treason, and the reduction of rations to prisoners of war resulting in their starvation.105 The underlying elements of ‘wilful killing’ are deemed to be equivalent to ‘killing’, which is an act of genocide, as well as the crime against humanity of ‘murder’ and the war crime of ‘murder’.106

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Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 179–180. Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, art. 50. Do¨rmann, Elements of War Crimes, pp. 40–41. They are discussed in detail under the act of genocide of ‘killing’; see above at pp. 172–174.

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Torture or inhuman treatment The grave breach of ‘torture or inhuman treatment, including biological experiments’, set out in paragraph (b) of article 2 of the ICTY Statute, consists of three distinct elements. The first, ‘torture’, has been defined as involving ‘the infliction, by act or omission, of severe pain or suVering, whether physical or mental’, aimed at ‘obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person’.107 The underlying elements are equivalent to those for the crime against humanity of torture, and these are discussed under that heading.108 Paragraph (b) of article 3 also refers to ‘inhuman treatment’. The concept has been described as ‘the umbrella under which the remainder of the listed ‘‘grave breaches’’ in the Conventions fall’.109 It is also said to be equivalent in scope to ‘cruel treatment’,110 which is prohibited by common article 3 of the Geneva Conventions and punishable under article 3 of the ICTY Statute, article 5 of the ICTR Statute and article 4 of the SCSL Statute. Torture and inhuman treatment are often associated in international human rights law.111 Inhuman treatment consists of an intentional act or omission causing serious mental harm or physical suVering or injury, or constituting a serious attack on human dignity, that is committed against a protected person.112 Inhuman treatment consists of acts or omissions that do not necessarily rise to the same level of gravity as torture: ‘The degree of physical or mental suVering required to prove either one of those oVences is lower than the one required for torture, though at the same level as the one required to prove a charge of ‘‘wilfully causing great suVering or serious injury to body or health’’.’113 Inhuman

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Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 142. Also: Krnojelac (IT97-25-T), Judgment, 15 March 2002, para. 179; Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 111; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 285. Above at pp. 205–209. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 154–155. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 443; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, para. 265. See: Ireland v. United Kingdom, Ser. A, vol. 25; The Greek Case, (1972) 12 Yearbook of the European Convention on Human Rights 186; Ilhan v. Turkey (App. No. 22277/93), Judgment, 27 June 2000, para. 85. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 39; Delalic´ et al. (IT96-21-A), Judgment, 20 February 2001, para. 426; Blasˇkic´ (IT-95-14-A) Judgment, 29 July 2004, para. 597; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 246; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 154–155. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 246. Also, see: Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 161 (concerning ‘cruel treatment’ as a violation of common article 3, where the same considerations apply).

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treatment requires that a violation of the basic principle of humane treatment, particularly respect for human dignity, must have been committed.114 Unlike torture, it is not necessary to prove a prohibited purpose.115 Case law provides several examples of inhuman treatment, including injuries and mistreatment of detainees, and the use of persons as human shields.116 The grave breach of ‘biological experiments’ has not led to any prosecutions by the tribunals.

Wilfully causing great suVering or serious injury The grave breach of ‘wilfully causing great suVering or serious injury to body or health’, listed in paragraph (c) of article 2 of the ICTY Statute, consists of an intentional act or omission that causes great suVering or serious injury to body or health, including mental health. It includes acts that do not meet the definition of torture. Unlike torture, it is not necessary to establish a prohibited purpose.117 The authoritative Commentary to article 147 of the fourth Geneva Convention says the act may be inflicted for motives such as punishment or revenge, or out of sadism. It also states that the concept usually uses as a criterion of seriousness the length of time the victim is incapacitated.118 Unlike the grave breach of inhuman treatment, there must be a showing of serious mental or physical injury, although it need not be permanent. Acts that only relate to an individual’s human dignity, and that may only cause temporary unhappiness, embarrassment or humiliation, do not fit within the definition.119 An analysis of the expression ‘wilfully causing great suVering or serious injury to body or health’ indicates that it is a single oVence whose elements are set out as alternative options.120 ˇ elebic´i case, the Prosecutor had alleged that the inhumane condiIn the C tions in the prison camp amounted to wilfully causing great suVering or serious injury to body or health, but the Trial Chamber held that they were more properly charged as inhuman treatment.121

114

115

116

117

118 119 120 121

Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 442; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, para. 256. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 226 (concerning ‘cruel treatment’ as a violation of common article 3, where the same considerations apply). Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 256. Also: Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 161 (concerning ‘cruel treatment’ as a violation of common article 3, where the same considerations apply). Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 442. Also: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 245. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 339–343. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 245. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 156. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998.

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Extensive destruction and appropriation of property The grave breach of ‘extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’, is set out in paragraph (d) of article 2 of the ICTY Statute. According to the case law, two types of property are contemplated by this provision: property, regardless of whether or not it is in occupied territory, but that is generally protected by the Geneva Conventions, such as civilian hospitals, medical aircraft and ambulances; and property protected under article 53 of the fourth Geneva Convention, that is, real or personal property situated in an occupied territory when the destruction was not absolutely necessary for military operations.122 A single act, such as the bombing of a hospital, may meet the definition in exceptional cases, but by and large the destruction must be extensive or on a large scale (‘unlawful and wanton’).123 The perpetrator must act with the intent to destroy the property or else behave with reckless disregard of the likelihood of its destruction.124

Compelling service in the forces of a hostile power There have been no indictments for the grave breach of ‘compelling a prisoner of war or a civilian to serve in the forces of a hostile power’ which is listed in article 2(e) of the ICTY Statute.

Deprivation of the rights of fair and regular trial There have been no indictments for this grave breach of ‘wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial’, which is listed in article 2(f) of the ICTY Statute.

Unlawful deportation or transfer This grave breach (article 2(g) of the ICTY Statute) consists of three distinct acts: deportation, transfer and confinement.125 All of these acts, committed against civilians, were features of the atrocities committed during the wars in the former Yugoslavia. Use of the word ‘unlawful’ indicates that the acts in question may not be prohibited under certain circumstances. Deportation or transfer involves the movement of individuals, under duress, from where they reside to a place that is not of their choosing. 122 123

124 125

Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 574–580. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 335–341; Blasˇkic´ (IT95-14-T), Judgment, 3 March 2000, para. 157. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 335–341. Joanna Dingwall, ‘Unlawful Confinement as a War Crime: The Jurisprudence of the Yugoslav Tribunal and the Common Core of International Humanitarian Law Applicable to Contemporary Armed Conflicts’, (2004) 9 Journal of Conflict and Security Law 133.

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Deportation would involve such transfer when an international border is crossed. It must be proven that the accused intentionally perpetrated an act or omission to eVect such deportation or transfer that was not motivated by the security of the population or imperative military reasons. The Prosecutor must establish the intent to have the person removed, which implies the aim that the person is not returning.126 With respect to confinement, article 43 of the fourth Geneva Convention recognises the practice of internment of civilians during military occupation, but subjects it to certain conditions. This has been held to be the only circumstance in which confinement of civilians is lawful. The Geneva Conventions do not grant an absolute right to freedom of movement and, pursuant to articles 5, 27, 41, 42 and 43 of the fourth Geneva Convention, when civilians are considered to pose a threat to its security, they may be interned. States have a broad discretion to decide whether civilians pose a threat to their security, but internment must be exceptional and may never be used collectively. Furthermore, an initially lawful internment becomes illegal when the basic procedural rights stated in article 43 of the fourth Geneva Convention are not upheld.127 As the Appeals Chamber has explained: It is perfectly clear from the provisions of Geneva Convention IV . . . that there is no such blanket power to detain the entire civilian population of a party to the conflict in such circumstances, but that there must be an assessment that each civilian taken into detention poses a particular risk to the security of the State . . . [T]he mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him.128

ˇ elebic´i, the ICTY Appeals Chamber said that detention would be In C unlawful when it violates article 42 of the fourth Geneva Convention (i.e., civilians are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary) and where the procedural safeguards required by article 43 of the fourth Convention are not complied with in respect of detained civilians, even where their initial detention may have been justified.129 To commit the grave breach, the ICTY Appeals Chamber has said that something more than mere ‘participation’ in a general system or operation

126 127 128 129

Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 519–521. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 579–583. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 322, 327. Ibid., paras. 322, 327. Also: Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 583; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 285, 289; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 69–73.

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involving confinement of civilians must be established. Responsibility for unlawful detention, transfer or confinement of civilians, is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist.130

Where a guard has no authority to release prisoners, his or her failure to do so is not suYcient to constitute a violation of this provision.131 On the other hand, an individual, such as a camp commander, with the power to release prisoners, knowing they have been detained illegally or without respecting all of the procedural guarantees to which they are entitled, commits the grave breach.

Taking civilians as hostages Hostage taking is an ancient practice, and in one of the early attempts to codify the law of armed conflict, the Lieber Code of 1863, it was recognised as legitimate, with the caveat that ‘[h]ostages are rare in the present age’.132 Widespread use of the practice by the Nazis led to post-war prosecutions133 and, in the fourth Geneva Convention, a prohibition of the practice with respect to civilians. It is the last of the grave breaches listed in article 2 of the ICTY Statute (paragraph (h)). The grave breach of taking civilians as hostages involves deprivation of freedom, ‘often arbitrarily and sometimes under threat of death’,134 as a means of fulfilling a condition or advantage.135 An essentially equivalent oVence is punishable as a serious violation of common article 3 of the Geneva Conventions,136 pursuant to article 3 of the ICTY Statute, article 5 of the ICTR Statute and article 4 of the SCSL Statute.

130 131 132

133 134 135

136

Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 342. Ibid. Instructions for the Government of Armies of the United States in the Field (‘Lieber Code’), arts. 54, 55. United States v. Wilhelm List et al. (‘Hostage’ case), (1948) 8 LRTWC 34, 11 TWC 757. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 158. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 311–314. Also: Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 187 (concerning ‘taking of hostages’ as a serious violation of common article 3 of the Geneva Conventions, where the same conditions apply). Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 319–320; Blasˇkic´ (IT95-14-T), Judgment, 3 March 2000, para. 187.

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Occupation Much of the fourth Geneva Convention is concerned with the law of occupation, and the concept of ‘occupation’ is relevant to several of the grave breaches, in particular to those of forcible transfer, destruction of property and unlawful confinement of civilians. Occupation consists of a transitional period that follows invasion but that precedes an agreement on the cessation of hostilities.137 Occupation is defined in article 42 of the Regulations annexed to the fourth Hague Convention of 1907: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’ But in the case of forcible transfer, it is prohibited from the moment civilians fall into the hands of the opposing power, regardless of the stage of the hostilities.138 There is an important distinction between the determination of a state of occupation and the existence of an international armed conflict. There must be more evidence of ‘overall control’ when the law of occupation is to apply, and the consequence is that the duties on an occupying power are more onerous than they are on a party to an international armed conflict. The occupying power must be in a position to substitute its own authority for that of the occupied authorities, who have been rendered incapable of functioning properly. The enemy forces must have surrendered, or been defeated and withdrawn. Battle areas are not considered occupied territory, although the existence of sporadic local resistance is not enough to alter the reality of occupation.139 As the definition in the Hague Regulations declares, the law of occupation applies only to areas actually controlled by the occupying power, and ceases to apply when the occupying power no longer exercises eVective authority over a specific territory.140

Violations of the laws or customs of war Article 3 of the ICTY Statute is entitled ‘[v]iolations of the laws or customs of war’.141 It has no equivalent in the statutes of the ICTR and SCSL. Five 137 138 139 140 141

Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 214–216. Ibid., para. 222. Ibid., para. 217. Ibid., para. 218. The expression ‘laws or customs of war’ comes from the Nuremberg Charter. Earlier sources – the 1899 and 1907 Hague Conventions and the 1919 Commission on Responsibilities – speak of ‘laws and customs of war’. The 1998 Rome Statute of the International Criminal Court returns to the earlier terminology of ‘laws and customs’ (see article 8(2)(b) and (e)). Sometimes the ad hoc tribunals slip up and speak of ‘laws and customs of war’ in reference to article 3 of the ICTY Statute: see Ntakirutimana et al.

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paragraphs list specific acts subsumed within the general rubric, but unlike the case of grave breaches, where the enumeration of punishable acts is exhaustive, the list is only exemplary (‘shall include, but not be limited to’): a. employment of poisonous weapons or other weapons calculated to cause unnecessary suVering; b. wanton destruction of cities, towns or villages, or devastation not justified by military necessity; c. attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; d. seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; e. plunder of public or private property. Unlike the case of grave breaches of the Geneva Conventions, where the Secretary-General could rely on prior ratification of the relevant instruments by the Socialist Federal Republic of Yugoslavia as an answer to charges of retroactive criminal legislation, here the argument had to be based on nontreaty sources. The acts prohibited expressly by article 3 are often spoken of as ‘Hague law’, in contrast to ‘Geneva law’, which is addressed in article 2. Hague law addresses the means and methods of warfare, whereas Geneva law concerns the victims of armed conflict. According to the Secretary-General, article 3 of the ICTY Statute was derived from the 1907 Hague Convention, as interpreted and applied by the Nuremberg judgment.142 As a consequence of the broad interpretation of article 3 developed by the Appeals Chamber in Tadic´, the provision applies to violations of norms of international humanitarian law drawn from either customary international law or applicable treaty law. Whatever the source, a violation of the rule must entail individual criminal responsibility for the person breaching the rule. Furthermore, such violations must be serious, which is to say that they must ‘constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim’.143 These conditions are rather intertwined, and the ICTY has held that ‘it is generally accepted that serious violations of both Geneva and Hague law entail individual criminal

142

143

(ICTR-96-10 & ICTR-96-17-T), Judgment, 21 February 2003, para. 893, fn. 1187; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 110, fn. 39. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), paras. 41–44. Also: Daphna Shraga and Ralph Zacklin, ‘The International Criminal Tribunal for the Former Yugoslavia’, (1994) 5 European Journal of International Law 1, at pp. 6–7. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 66; Kvocˇka et al. (IT-98-30/ 1-T), Judgment, 2 November 2001, para. 123.

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responsibility’,144 which means in eVect that the condition of individual criminal responsibility is met once it is determined that there is a ‘serious violation’. In Blasˇkic´, a Trial Chamber linked the requirements of seriousness and individual criminal responsibility, in eVect concluding that because a violation was serious, it was ‘likely’ to incur individual criminal responsibility.145 The ICTY has invoked the Nuremberg judgment in this respect: [T]he International Military Tribunal at Nuremberg concluded that a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches. The Nuremberg Tribunal considered a number of factors relevant to its conclusion that the authors of particular prohibitions incur individual responsibility: the clear and unequivocal recognition of the rules of warfare in international law and State practice indicating an intention to criminalize the prohibition, including statements by government oYcials and international organizations, as well as punishment of violations by national courts and military tribunals. Where these conditions are met, individuals must be held criminally responsible, because, as the Nuremberg Tribunal concluded: ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’. . . Applying the foregoing criteria to the violations at issue here, we have no doubt that they entail individual criminal responsibility, regardless of whether they are committed in internal or armed conflicts. Principles and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognized as the mandatory minimum for conduct in armed conflicts of any kind. No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.146

The phrase ‘elementary considerations of humanity’ is drawn from the celebrated Martens Clause, which was inserted as a guiding principle into the preamble of the 1907 Hague Convention ‘[u]ntil a more complete code of the laws of war has been issued’.147

144

145 146

147

Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 32. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 176. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 128–129. Also: Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 162, 171. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 143, fn. 187; Hadzˇihasanovic´ et al. (IT-01–47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 40. Also: Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’, (2000) 94 American Journal of International Law 78.

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With respect to the criterion of seriousness, in Tadic´ the Appeals Chamber gave the example of a combatant simply appropriating a loaf of bread in an occupied village. This would not amount to a ‘serious violation of international humanitarian law’, although it might run afoul of the basic principle laid down in article 46(1) of the Hague Regulations (and the corresponding rule of customary international law) whereby private property must be respected by any army occupying an enemy territory.148 In another case, an ICTY Trial Chamber dismissed a charge of ‘plunder’ as being insuYciently serious. The Trial Chamber concluded that, as a question of fact, given the limited monetary value of the items that had been illegally appropriated, the crime was not of suYcient gravity to fall within the ambit of article 3.149 As a ‘residual’ clause, article 3 applies to a much broader range of acts than those listed in its five paragraphs, according to the ICTY Appeals Chamber.150 In addition to the five specific violations which are drawn from article 6(b) of the Charter of the Nuremberg Tribunal, article 3 encompasses infringements of provisions of the Geneva Conventions other than those classified as ‘grave breaches’, violations of common article 3 of the Geneva Conventions (applicable to non-international armed conflict), other customary rules on internal conflicts, and violations of agreements or treaties binding upon the parties to the conflict but which have not turned into customary international law. These categories provide a useful framework for examining the specific acts punishable under article 3.

Punishable acts listed in article 3 of the ICTY Statute Aside from the reference to the 1907 Hague Regulations and the Nuremberg judgment, the Secretary-General did not provide any more detailed explanation for his choice of the five acts listed in article 3. Some of them reflect provisions in the 1907 Hague Regulations, while others echo provisions of the Nuremberg Charter. The Regulations annexed to Hague Convention IV of 1907 codified an important range of norms of international humanitarian law, although they did not contemplate individual criminal responsibility. According to the Secretary-General, ‘the Hague Regulations also recognize that the right of belligerents to conduct warfare is not unlimited and that

148

149 150

Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 94. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1153–1154. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 87, 89, 91. Also: Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 136; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 68; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 228; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 168.

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resort to certain methods of waging war is prohibited under the rules of land warfare’.151 Article 46 of the Regulations enshrines the respect of ‘[f]amily honour and rights, the lives of persons, and private property, as well as religious convictions and practice’.152 Other provisions of the Regulations protect cultural objects and private property of civilians. The preamble to the Hague Conventions acknowledges that they are incomplete, but promises that until a more complete code of the laws of war is issued, ‘the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. In 1913, a commission of inquiry sent by the Carnegie Foundation to investigate atrocities committed during the Balkan Wars used the provisions of Hague Convention IV as a basis for its description of war crimes.153 Immediately following the First World War, the Commission on Responsibilities of the Authors of War and on Enforcement of Penalties established to examine allegations of war crimes committed by the Central Powers did the same. The Commission prepared a list of thirty-two categories of oVence, including murder and rape, as well as ‘debasement of the currency’ and ‘destruction of fishing boats’.154 But actual prosecution for violations of the Hague Conventions would have to wait until Nuremberg. At Nuremberg, Nazi defendants challenged the legality of prosecuting crimes that they alleged did not form part of international criminal law. The Tribunal replied: The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as oVences against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish oVenders. For many years past, however, military tribunals have tried and

151

152

153

154

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, paras. 43–44. Convention Concerning the Laws and Customs of War on Land (Hague IV), 3 Martens Nouveau Recueil (3d) 461. For the 1899 treaty: Convention (II) with respect to the Laws and Customs of War on Land, 32 Stat. 1803, 1 Bevans 247, 91 BFST 988. Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, Washington: Carnegie Endowment for International Peace, 1914. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at pp. 114–115.

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punished individuals guilty of violating the rules of land warfare laid down by this Convention.155

Thus, serious violations of the 1907 Hague Regulations are punishable precisely because they are also part of customary international law. It was because they were unquestionably part of customary international law that the Secretary-General listed them in article 3 of the Statute.156 Subsequent confirmation of the customary status of the Hague Convention of 1907 can also be found in the Rome Statute of the International Criminal Court.157 Although the Rome Statute does not purport to be a full codification of customary law,158 the general agreement on inclusion of crimes based on the Hague Convention is strong evidence of State practice in this respect. Furthermore, in 2004, the International Court of Justice declared that the Hague Convention had become part of customary international law, noting that this was recognised by all participants in the proceedings before the Court.159 The origin of the five specific acts listed in article 3 remains a bit of an enigma. Of course, the provision is not exhaustive, as the chapeau or introductory paragraph indicates. But many of the important violations of the laws and customs of war identified as customary law in the past did not find their way into article 3. For example, the 1919 Commission included ‘rape’ as well as ‘abduction of girls and women for the purpose of enforced prostitution’, ‘deportation of civilians’ and ‘internment of civilians under inhuman conditions’, all of which might usefully have been included in article 3.160 Probably the drafters considered that these war crimes did not belong in article 3, because they believed that the provision was intended to address issues concerning means and methods of combat rather than protection of vulnerable civilians. Indeed, the strangely limited scope of the enumerated acts in article 3 is further evidence that the Security Council had no intention of creating a broad provision to faciliate prosecution of all serious violations of international humanitarian law, as the ICTY Appeals Chamber would later determine. In any event, when all of the prosecutions under article 3 are 155

156 157

158 159

160

France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, at p. 218. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 305–306. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, arts. 8(2) (b) and 8(2)(e)–(f). Ibid., art. 10. Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para. 89. Cited in Strugar (IT-01–42), Judgment, 31 January 2005, para. 227, fn. 775. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at p. 114.

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scrutinised, it becomes apparent that the five examples listed by the SecretaryGeneral have not been particularly important. For two of the acts that appear in article 3, there have been no prosecutions whatsoever.

Employment of prohibited weapons Paragraph (a) of article 3, which criminalises ‘[e]mployment of poisonous weapons or other weapons calculated to cause unnecessary suVering’, provides a basis for prosecution relating to the use of prohibited weapons. No corresponding text appeared in the war crimes provision of the Nuremberg Charter. The provision in the ICTY Statute is adapted from article 23(a) and (e) of the 1907 Hague Regulations. The 1919 Commission on Responsibilities listed two categories of war crime falling within the rubric of employment of prohibited weapons: ‘use of deleterious and asphyxiating gases’ and ‘use of explosive or expanding bullets, and other inhuman appliances’.161 Generally, the norm corresponds to a rule of customary international law whose ramifications were discussed by the International Court of Justice in its advisory opinion on the use of nuclear weapons.162 The prohibition is a source of considerable diYculty in international law, and the creators of the International Criminal Court failed to incorporate this provision fully within article 8 of the Rome Statute.163 There are reported examples of the use of ‘weapons calculated to cause unnecessary suVering’ during the conflicts on the territory of the former Yugoslavia, such as the employment of anti-personnel mines, but to date the Prosecutor has not invoked this provision or undertaken any cases involving prohibited weapons. The provisions of the ICTR and SCSL statutes do not allow for prosecution of the use of prohibited weapons.

Wanton destruction of cities, devastation Wanton destruction of cities, towns or villages, or devastation not justified by military necessity is set out in article 3(b) of the ICTY Statute. It is based on a provision in article 6(b) of the Nuremberg Charter, which was in turn drawn from the oVence of ‘wanton devastation and destruction of property’ included in the list prepared by the Commission on Responsibilities.164 The text is very

161 162

163

164

Ibid., p. 115. Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General Assembly for an Advisory Opinion), [1996] ICJ Reports 226. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(b) (xvii)–(xx) 8(2)(e) and and 8(2)(e)–(f). See: Roger S. Clark, ‘Methods of Warfare that Cause Unnecessary SuVering are Inherently Indiscriminate’, (1998) 28 California Western International Law Journal 379. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris,

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similar to the grave breach of ‘extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’, which is listed in article 2(d) of the ICTY Statute. ‘Destruction’ and ‘devastation’ are treated as synonyms.165 The interpretation given to article 2(d) has been endorsed as being applicable to article 3(b).166 ˇ erkez, a Trial Chamber said that property situated on enemy In Kordic´ and C territory was not protected under the Geneva Conventions, and therefore did not come within the scope of the grave breach provision; in such cases, its destruction was criminalised under article 3(b).167 In order to fall within this provision of article 3, property ‘on a large scale’ must be damaged, and its destruction must either have been intended or have been a foreseeable consequence of the acts perpetrated by the accused.168 In Strugar, which concerned the shelling of Dubrovnik in late 1991, an ICTY Trial Chamber said that considering ‘the rule prohibiting attacks on civilian objects applies to noninternational conflicts, the Chamber finds no reason to hold otherwise than that the prohibition contained in Article 3(b) of the Statute applies also to non-international armed conflict’.169

Attack of undefended towns Article 3(c) lists ‘[a]ttack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings’. It is drawn from article 25 of the 1907 Hague Regulations and has no equivalent in the Nuremberg Charter. The 1919 Commission on Responsibilities identified ‘deliberate bombardment of undefended places’ as a war crime.170 It does not appear to have been charged in any of the indictments at the ICTY.

Cultural property ‘Seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’ is addressed in article 3(d) of the ICTY Statute. It is based on articles 27 and 56 of the 1907 Hague Regulations. The 1919

165 166 167

168 169 170

1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at p. 115. Strugar (IT-01–42-T), Judgment, 31 January 2005, para. 291. Ibid., para. 293. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 346–347; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 74–76. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 183. Strugar (IT-01–42-T), Judgment, 31 January 2005, para. 228. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at p. 115.

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Commission on Responsibilities declared that ‘wanton destruction of religious, charitable, educational and historic buildings and monuments’ was a war crime. This oVence has no equivalent in the Nuremberg Charter, although the judgment of the International Military Tribunal referred to article 56 of the Hague Regulations in condemning Nazi defendants for ‘plunder of public or private property’, which was listed in article VI(b) of the Charter.171 Article 3(d) of the ICTY Statute protects cultural property, which is a concern of the international community that has been reaYrmed in numerous instruments.172 To fall within the scope of this provision, there must be evidence that the institutions in question were ‘identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts’.173 In Blasˇkic´, a Trial Chamber declared that the institutions must not have been in the immediate vicinity of military objectives.174 However, in a later ruling, another ICTY Trial Chamber disagreed that destruction could be excused or justified if the institution was in the vicinity of military objectives.175 The history of the protection of cultural property during wartime was discussed in some detail by an ICTY Trial Chamber in Strugar. The Trial Chamber said that article 3(d) of the ICTY Statute ‘is a rule of international humanitarian law which not only reflects customary international law but is applicable to both international and non-international armed conflicts’.176 It observed that the protection given cultural property is lost when it is used for military purposes. According to the Trial Chamber, ‘the preferable view appears to be that it is the use of cultural property and not its location that determines whether and when the cultural property would lose its protection’. But it added: [T]he special protection awarded to cultural property itself may not be lost simply because of military activities or military installations in the immediate vicinity of the cultural property. In such a case, however, the practical result may be that it cannot be established that the acts which caused destruction of or damage to cultural property were ‘directed against’ that cultural property, rather than the military installation or use in its immediate vicinity.177 171

172

173 174 175 176 177

France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, p. 235. Hirad Abtahi, ‘The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the Former Yugoslavia’, (2001) 14 Harvard Human Rights Journal 1. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 185. Ibid., para. 185. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 603–605. Strugar (IT-01–42-T), Judgment, 31 January 2005, para. 230. Ibid., para. 310.

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ˇ erkez, which involved destruction of schools, an ICTY Trial In Kordic´ and C Chamber held that ‘educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples’ and that therefore they fell within the ambit of the prohibition.178 On this point, the judgment was overturned by the ICTY Appeals Chamber, although it did not reverse the conviction because destruction of schools was in any event within the general prohibition of the destruction of enemy property found in article 23(g) of the Hague Convention of 1907.179

Plunder of property Article 3(e) of the ICTY Statute, dealing with ‘[p]lunder of public or private property’, is based on article 6(b) of the Nuremberg Charter, a provision that is itself partially drawn from article 28 of the 1907 Hague Regulations. The list prepared by the 1919 Commission on Responsibilities included ‘pillage’ and ‘confiscation of property’ but not the term ‘plunder’.180 Plunder has been defined as ‘all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as ‘‘pillage’’ ’.181 It has also been described as ‘fraudulent appropriation of public or private funds belonging to the enemy or the opposing party perpetrated during an armed conflict and related thereto’.182 The war crime of plunder covers not only the organised seizure of property, as part of a systematic exploitation of occupied territory, but also individual looting conducted for private gain.183 Nevertheless, plunder involves ‘unjustified appropriations of property either from more than a small group of persons or from persons over an identifiable area’.184 The prohibition of plunder applies to the entire territory of the parties to a conflict, and is not confined to occupied territory.185 178 179

180

181

182 183

184

185

Ibid., para. 360. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 92. The paragraph is very ambiguous, however. Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at p. 114. Delalic´ et al. (IT-96-21–T), Judgment, 16 November 1998, para. 591. Also: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 352; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 612, 617; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 79. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 48. Delalic´ et al. (IT-96-21–T), Judgment, 16 November 1998, para. 590; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, para. 352; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 612–613. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Decision on Motion for Acquittal, 3 July 2000, para. 16. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 615.

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The monetary value of the property being plundered must be of some significance, failing which the oVence is not deemed to be serious enough for prosecution as an international oVence,186 although it need not be ‘extensive’ or ‘involve a large economic value’.187 In Jelisic´, the accused was found guilty of pillage for having stolen money, watches, jewellery and other valuables from detainees upon their arrival at the Luka concentration camp.188 Conscious that some judgments might have suggested a monetary threshold for this crime that was perhaps too high, the ICTY Appeals Chamber, in Kordic´ ˇ erkez, held: ‘[A] serious violation could be assumed in circumstances and C where appropriations take place vis-a`-vis a large number of people, even though there are no grave consequences for each individual. In this case it would be the overall eVect on the civilian population and the multitude of oVences committed that would make the violation serious.’189

Violations of common article 3 of the Geneva Conventions of 1949 The dramatic potential of article 3 of the ICTY Statute, under the broad interpretation given by the Appeals Chamber in Tadic´, becomes apparent when prosecution under common article 3 of the 1949 Geneva Conventions is contemplated. On several occasions, the ICTY has held that violations of common article 3 are ‘serious violations of the laws or customs of war’ falling within article 3 of the Statute.190 The International Court of Justice has described common article 3 as a codification of customary international law.191 On several occasions, chambers of the ICTY have stated that common article 3 is part of customary international law.192

186 187 188 189 190

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Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 612–613. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 49. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 83. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 616; Kordic´ et al. (IT-9514/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998. But in one case, a Trial Chamber suggested that should a more teleological approach to article 2 be taken than had previously been articulated by the Appeals Chamber, it might be more logical to include these oVences under article 2 of the Statute. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) (Merits), [1986] ICJ Reports 14, paras. 218, 255, 292(9). This was noted by a Trial Chamber in Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 138. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 98; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 68; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 166; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 228.

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Although all three statutes provide jurisdiction over serious violations of common article 3, some authorities suggest that the basis of jurisdiction varies. In the case of the ICTY, the general reference to ‘laws or customs of war’ in article 3 justifies resort to sources of customary international law in general, and it is on this authority that the Yugoslavia Tribunal undertakes prosecution.193 In the case of the ICTR and SCSL, the basis is statutory; that is, the statutes themselves attribute jurisdiction over serious violations of common article 3. In Kayishema and Ruzindana, an ICTR Trial Chamber said it was unnecessary to consider whether common article 3 was considered to be customary international law imposing international criminal liability for serious breaches, because Rwanda had been a party to the Geneva Conventions prior to the outbreak of the conflict.194 Common article 3 – so called because it is an identical provision appearing in each of the four Geneva Conventions – was adopted in order to provide a minimum level of protection to the victims of non-international armed conflict. It is clearly quite distinct from the grave breaches provisions found elsewhere in the four Conventions. Indeed, there can be no doubt that the drafters of the Geneva Conventions never contemplated the extension to noninternational armed conflict of principles of individual criminal responsibility and the related obligations associated with the grave breaches regime. States were not even prepared to take this step in 1977, when the Conventions were revised and updated, and an entire treaty – Additional Protocol II – was drafted in order to address non-international armed conflicts when previously only one provision, common article 3, had applied in such cases. Common article 3 in many ways resembles the grave breaches provisions of the Geneva Conventions. The language is largely identical, and reflects terminology that is also familiar to international human rights law. The relevant portion of common article 3 reads as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall 193

194

Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 609; Tadic´ (IT-941-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 116, 134. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 156–158, 597–598.

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remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b. taking of hostages; c. outrages upon personal dignity, in particular humiliating and degrading treatment; d. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, aVording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Perhaps because of the similarities between common article 3 and the grave breaches provisions, there is little diYculty fulfilling the test for inclusion within article 3 of the ICTY Statute. Common article 3 states that it applies only to ‘persons taking no active part in the hostilities’.195 The scope is considerably larger than that of ‘protected persons’, which is fundamental to the Geneva Conventions regime more generally. But this is only logical because of the inherent diYculties in applying the protected persons system, with its dependence on nationality, within a non-international armed conflict. As we have seen in the discussion of grave breaches, the ICTY has developed techniques to mitigate this problem, and to bring the schemes applicable to international and non-international armed conflict closer together. In Tadic´, for example, the persons victimised by the accused had been captured or detained by Bosnian Serb forces, and for this reason the Trial Chamber concluded that they were not actively participating in hostilities.196 The relationship between common article 3 and other provisions of the Geneva Conventions is further enhanced by rulings of the ICTY that hold common article 3 to be applicable to international armed conflict. As the ˇ elebic´i, Appeals Chamber stated in C [i]t is indisputable that common Article 3, which sets forth a minimum core of mandatory rules, reflects the fundamental humanitarian principles which underlie international humanitarian law as a whole, and upon which the Geneva Conventions in their entirety are based . . . It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of

195

196

Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 124; Blasˇkic´ (IT-95-14T), Judgment, 3 March 2000, para. 180; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 34. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 616.

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rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical. [S]omething which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader.197

But this leads to a bit of an absurdity, that only further underscores the theoretical incoherence of the attempts to reconcile articles 2 and 3 of the ICTY Statute, and the holding that article 3 covers all serious violations of international humanitarian law not covered in articles 2, 4 and 5. Why would a prosecutor attempt to prove a grave breach, which requires not only evidence of an international armed conflict (rather than an armed conflict) but also a demonstration that the victim was a ‘protected person’ (rather than a person ‘taking no active part in the hostilities’),198 when he or she can achieve a conviction more easily and without these complex evidentiary issues by charging under article 3 of the Statute? The ICTR and SCSL statutes codify ‘serious violations’ of common article 3,199 although the list covers essentially all violations of the provision. The Rome Statute does the same thing.200 ICTY Trial Chambers have said that customary international law imposes criminal responsibility for ‘serious violations of common article 3’201 but sometimes simply for ‘common article 3’.202 Sometimes the ICTY has spoken of ‘serious violations of common article 3’.203 A ‘serious violation’ of common article 3 of Additional Protocol II consists of ‘a breach of a rule protecting important values [which] must involve grave consequences for the victim’.204 However, implicit in the reference to ‘serious violations’ is the suggestion that not all violations of common article 3 incur individual criminal 197

198 199 200

201

202 203

204

Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 140–150; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 228. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 233. ICTR Statute, art. 4; SCSL Statute, art. 3 (emphasis added). Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(c). Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 134; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 176. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 228. Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 94; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 176. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 616; Musema (ICTR-96-13T), Judgment and Sentence, 27 January 2000, para. 286; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 102; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 370; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 184.

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responsibility at customary international law. In fact, in one case, a Trial Chamber held that the term ‘violence to life and person’, which is a violation of common article 3, did not give rise to individual criminal responsibility: ‘In the absence of any clear indication in the practice of states as to what the definition of the oVence of ‘‘violence to life and person’’ identified in the Statute may be under customary law, the Trial Chamber is not satisfied that such an oVence giving rise to individual criminal responsibility exists under that body of law.’205 The common article 3 provisions in the ICTR and SCSL statutes also include serious violations of Additional Protocol II. Because Additional Protocol II was intended to update and complete common article 3, much of the language in the treaty is very similar to that of its predecessor. The Rome Statute, on the other hand, is faithful to the distinction between the two instruments. Its ‘common article 3’ provision dutifully respects the text of the Conventions.206 Developments in the law of war crimes applicable to noninternational armed conflict engendered by Additional Protocol II are dealt with in the Rome Statute in a distinct provision,207 with its own original threshold.208

Violence to life and person ‘Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’ is set out in article 3(1)(a) of the Geneva Conventions, and was slightly modified when incorporated into Additional Protocol II, which speaks of ‘violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment’.209 It is the Additional Protocol II text that is reproduced in article 4 of the ICTR Statute and article 3 of the SCSL Statute. A few indictments have alleged the general expression ‘violence to life and person’, but in practice it appears to have been applied with reference to the more specific punishable acts of murder and cruel treatment, including torture.210 There have been no prosecutions involving the application of corporal punishment. Murder Although the grave breach provisions of the Geneva Conventions refer to ‘wilful killing’, common article 3 refers to ‘murder’. The war crime of 205 206

207 208 209

210

Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 203. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(c). Ibid., art. 8(2)(e). Ibid., art. 8(2)(f). Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609, art. 4(a). Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 182.

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‘murder’ is for all practical purposes identical in a legal sense to the grave breach of ‘wilful killing’, the crime against humanity of ‘murder’ and the act of ˇ elebic´i case, ‘there can be no line genocide of ‘killing’.211 As was said in the C drawn between ‘‘wilful killing’’ and ‘‘murder’’ which aVects their content’.212 A few ICTR cases hold to a higher standard, requiring that ‘murder’ also involve proof of premeditation. Such an interpretation is based on reference to the French text of article 4(1)(a) of the ICTR Statute, which uses the term assassinat.213 But this is probably an error of translation in the French version of the ICTR Statute, because the French text of common article 3 of the Geneva Conventions uses the term meurtre. Mutilation Mutilation, including amputation of arms and legs of innocent civilians, was a widespread practice during the Sierra Leone conflict.214 It is alleged as a violation of common article 3 in several of the SCSL indictments.215 Cruel treatment, including torture Cruel treatment is a generic term, encompassing torture as well as mutilation or any form of corporal punishment. Mutilation has not featured in the decisions of the ICTY and ICTR, but it was widespread during the conflict in Sierra Leone and will likely be interpreted in that tribunal’s judgments. Cruel treatment consists of an intentional act or omission ‘which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suVering or injury or constitutes a serious attack on human dignity’.216 Cruel treatment has been described as ‘equivalent to the oVence of inhuman treatment’, which is a grave breach punishable under article 2 of the ICTY Statute.217 Similarly, the interpretation to be given to the term torture under common article 3 is considered

211

212

213 214

215

216

217

For detailed analysis of the elements of the crime, see the discussion of ‘killing’ as an act of genocide, above at pp. 172–174. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 422. Also: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 233; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 181. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 373. Report of the Sierra Leone Truth and Reconciliation Commission, Freetown, 5 October 2004, vol. 2, chapter 2, ‘Findings’, paras. 103, 150–151, 231, 246, 282, 476, 485, 488, 497. Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para. 67; Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, para. 64; Taylor (SCSL-03-01-I), Indictment, 3 March 2003, paras. 45–46; Sankoh (SCSL03-02-I), Indictment, 3 March 2003, paras. 48–49; Koroma (SCSL-03-03-I), Indictment, 3 March 2003, paras. 45–46. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 265. Also: Blasˇkic´ (IT95-14-T), Judgment, 3 March 2000, para. 186; Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, paras. 34, 41. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 265.

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under the heading of grave breaches.218 The elements of the oVence of cruel treatment, including torture, are more thoroughly examined in the discussion of ‘torture or inhuman treatment’.219 In many respects, the debate about the definition of rape is of limited practical significance with respect to prosecution of war crimes, because ‘outrages upon personal dignity’ also encompass other forms of sexual violence under the rubric ‘indecent assault’. According to an ICTY Trial Chamber, the oVence of ‘indecent assault involves the infliction of pain or injury by an act which was of a sexual nature and inflicted by means of coercion, force, threat or intimidation and was non-consensual’.220 Acts of sexual violence falling short of the rather technical definition of rape can therefore be punished as ‘indecent assault’.

Taking of hostages The act of taking of hostages, which violates common article 3(1)(b) of the Geneva Conventions, is also a grave breach punishable under article 2 of the ICTY Statute.221 As a serious violation of common article 3, article 4(c) of the ICTR Statute and article 3(c) of the SCSL Statute explicitly prohibit the practice. An identical provision to that of common article 3 appears in Additional Protocol II.222 Relevant considerations with respect to this oVence are the same as those of the grave breach of taking hostages,223 with perhaps one significant exception: the grave breach requires that the victims be ‘civilians’, whereas under common article 3 they need only be ‘persons taking no active part in the hostilities’ (i.e., wounded combatants and prisoners of war). Elements of the crime are discussed in more detail under the rubric of grave breaches.224 Two of the consolidated indictments of the SCSL charge leaders of the insurgent groups with taking of hostages, specifically United Nations peacekeepers.225

218 219 220 221

222

223 224 225

Above at pp. 250–251. Above at pp. 205–209. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 285. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 319–320; Blasˇkic´ (IT95-14-T), Judgment, 3 March 2000, para. 187. Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609, art. 4(2)(c). Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 319–320. Above at pp. 254–255. Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, para. 80; Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para. 83.

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Outrages upon personal dignity Common article 3 of the Geneva Conventions prohibits ‘outrages upon personal dignity, in particular humiliating and degrading treatment’. This provision is echoed in article 4(e) of Additional Protocol II of 1977, but the concept is expanded by adding the words ‘rape, enforced prostitution and any form of indecent assault’. Arguably, these ‘gender crimes’ constitute nothing more than examples of humiliating and degrading treatment, and are therefore implied within the text of common article 3 itself. It is the Additional Protocol II text that is reproduced in the ICTR and SCSL statutes. This language is also incorporated within the Rome Statute. These confirm the status of article 4(e) of Additional Protocol II as both a legitimate interpretation of common article 3 and a crime under customary international law. Indeed, the Rome Statute provides an even more extensive list of gender crimes committed in non-international armed conflict: rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and ‘any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions’.226 The standard for identifying treatment contemplated by this provision is an objective one: ‘[T]he humiliation of the victim must be so intense that any reasonable person would [be] outraged.’227 The form, severity and duration of the violence, the intensity and duration of the physical or mental suVering, serve as a basis for assessing whether crimes were committed.228 Humiliation must be ‘real and serious’, but need not be ‘lasting’; but if violence and suVering is only ephemeral, this may influence the claim that it is ‘real and serious’. The fact that a victim may be recovering or may have recovered from the violence does not negate the criminal act.229 In Aleksovski, an ICTY Trial Chamber spoke of this crime as being a ‘species of inhuman treatment that is deplorable, occasioning more serious suVering than most prohibited acts falling within the genus’.230 Similarly, in Musema, an ICTR Trial Chamber wrote: ‘Like outrages upon personal dignity, these oVences may be regarded as lesser forms of torture; moreover ones in which the motives required for torture would not be required, nor would it be required that the acts be committed under state authority.’231

226

227 228 229 230 231

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(e) (vi). Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 162. Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, paras. 56–57. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 501. Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, paras. 54–56. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 285.

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It has been held that murder is not per se an outrage upon personal dignity. In Kvocˇka, an ICTY Trial Chamber said: ‘Murder causes death, which is diVerent from concepts of serious humiliation, degradation or attacks on human dignity. The focus of violations of dignity is primarily on acts, omission, or words that do not necessarily involve long-term physical harm, but which nevertheless are serious oVences deserving of punishment.’232 Perhaps the most significant application of the war crime of ‘outrages upon personal dignity’, and one made explicit by article 4 of the ICTR Statute and article 3 of the SCSL Statute, is to a range of what are often called ‘gender crimes’. The first of these is the crime of ‘rape’. Rape has always been considered a war crime,233 although it was not mentioned in either the Nuremberg Charter or the Geneva Conventions,234 which probably reflects the fact that it was not always prosecuted with great diligence. The fourth Geneva Convention declares: ‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’235 The underlying elements of the crime of rape are discussed under the heading of ‘Crimes against humanity’.236

Denial of fair trial ‘The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, aVording all the judicial guarantees which are recognized as indispensable by civilized peoples’ is prohibited by subparagraph (1)(d) of common article 3 of the Geneva Conventions. Trial and execution without due process must be a ‘serious violation’ subject to individual criminal responsibility, given their explicit inclusion in article 4 of the ICTR Statute and article 3 of the SCSL Statute.

232 233

234

235

236

Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 172. Theodor Meron, ‘Rape as a Crime under International Humanitarian Law’, (1993) 87 American Journal of International Law 424; Kelly D. Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’, (1999) 93 American Journal of International Law 97; Rhonda Copelon, ‘Surfacing Gender: ReEngraving Crimes Against Women in Humanitarian Law’, (1994) 5 Hastings Women’s Law Journal 243; Sharon A. Healey, ‘Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia’, (1995) 21 Brooklyn Journal of International Law 327; Patricia Viseur Sellers and Kaoru Okuizumi, ‘Intentional Prosecution of Sexual Assaults’, (1997) 7 Transnational Law and Contemporary Problems 45; Kate Nahapetian, ‘Selective Justice: Prosecuting Rape in the International Criminal Tribunals for the Former Yugoslavia and Rwanda’, (1999) 14 Berkeley Women’s Law Journal 126. E.g., the Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (‘Lieber Code’), arts. 44, 47. Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, art. 27. Above at pp. 209–211.

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It is also punishable under article 8(2)(c)(iv) of the Rome Statute, but with the removal of the term ‘civilised peoples’, which is an archaic usage. There have been no prosecutions at any of the tribunals pursuant to this provision.

Threats to violate common article 3 The relevant provisions of the ICTR and SCSL statutes expressly give these tribunals jurisdiction over ‘threats to commit’ any of the acts that they list as serious violations of common article 3 and Additional Protocol II. Given inclusion of this crime by the Security Council in the ICTR Statute, this creates a strong presumption that ‘threats to commit violations of common article 3’ are also violations of customary international law incurring individual criminal responsibility, and therefore implicitly included in article 3 of the ICTY Statute. There is no reference to ‘threats’ in common article 3, and the language first appears in article 4 of Additional Protocol II. In this respect, it is surely of interest that the Rome Statute of the International Criminal Court does not recognise the oVence of ‘threats to commit violations of common article 3’ (or, for that matter, of Additional Protocol II). There is no case law to assist in interpreting this provision in the ICTR and SCSL statutes, or to indicate the position of the tribunals on its incorporation into customary international law.

Other violations of the Geneva Conventions not listed as ‘grave breaches’ Because article 3 of the ICTY Statute is an umbrella rule intended to cover all serious violations of international humanitarian law, it is therefore applicable to infractions of the Geneva Conventions that are not listed as ‘grave breaches’. There are many serious violations of the Conventions that the Diplomatic Conference, for whatever reason, did not see fit to include as a grave breach. National legislation has often provided criminal sanctions for ‘breaches’ or ‘minor breaches’ of the Geneva Conventions, in eVect going beyond the strict treaty obligations imposed upon States parties to provide sanctions for ‘grave breaches’ of the Convention.237 An example of a serious violation of the Geneva Conventions is the unlawful labour of prisoners of war. Although not a grave breach of the Conventions, it is prohibited by articles 49, 50 and 51 of the third Geneva Convention. In Naletilic´ and Martinovic´, a Trial Chamber recognised that forcing prisoners of war to perform prohibited labour was a serious violation of the third Convention incurring individual criminal responsibility under article 3 of the ICTY Statute.238

237 238

E.g., Geneva Conventions Act 1962 (Ireland), s. 4. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 250–261.

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Violations of the Additional Protocols to the Geneva Conventions The two Additional Protocols to the Geneva Conventions, adopted in 1977 following several years of negotiations, are distinguished by the type of conflict to which they relate: Additional Protocol I governs international armed conflicts and Additional Protocol II governs non-international armed conflicts. Both contain detailed provisions that define the features of international and non-international armed conflict and these are slightly at variance with the definitions applicable to the four Geneva Conventions and the fourth Hague Convention, with respect to international armed conflict, and common article 3 of the Geneva Conventions, with respect to non-international armed conflict. The two Additional Protocols represent a degree of amalgamation of ‘Geneva law’ and ‘Hague law’, in that they combine provisions dealing with the victims of war with norms concerning methods and materials of warfare. They have not been as widely ratified as the Geneva Conventions, which enjoy near-universal acceptance. For this reason, there is a degree of unease in holding them to be declaratory of customary international law, although it is beyond question that many of their provisions are in fact consistent with customary law. As one Trial Chamber of the ICTY stated, ‘it is not controversial that major parts of both Protocols reflect customary law’.239 The Secretary-General’s Report to the Security Council on the draft ICTY Statute said that some but not all provisions of Additional Protocol II could be viewed as having crystallised into emerging rules of customary law.240 Serious violations of the two 1977 Additional Protocols to the Geneva Conventions may also qualify as ‘violations of the laws or customs of war’ and therefore fall within the scope of article 3 of the ICTY Statute. In accordance with the principles set down in Tadic´, because the Socialist Federal Republic of Yugoslavia had ratified Additional Protocol II, it is included within article 3 of the ICTY Statute as an applicable treaty, irrespective of its status at customary international law.241 With respect to the ICTR and SCSL statutes, specific provisions provide for jurisdiction over ‘serious violations of Additional Protocol II’. Because of the formulation of its sole war crimes provision, the ICTR is without jurisdiction over violations of

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Kordic´ et al. (IT-95-14/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 30. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 16. Also: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 117. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 42; Kordic´ et al. (IT-9514/2-T), Judgment, 26 February 2001, para. 167; Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003.

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Additional Protocol I. Given that the conflict in Rwanda is generally acknowledged to be internal in nature, this omission is of no real significance. The Secretary-General has described this as ‘an expansive approach’ to Additional Protocol II. The Secretary-General said the ICTR should pronounce upon violations of Additional Protocol II that, as a whole, ‘ha[d] not yet been universally recognized as part of customary international law’, and furthermore ‘for the first time criminalize[d] common Article 3 of the four Geneva Conventions’.242 In addition to article 3 of the SCSL Statute, which is copied from article 4 of the ICTR Statute, the SCSL Statute contains a second war crimes provision. Some of the provisions of article 4 of the SCSL Statute, entitled ‘[o]ther serious violations of international humanitarian law’, were originally inspired by provisions in Additional Protocol I, although the immediate source appears to be the Rome Statute of the International Criminal Court.243 To some extent, Additional Protocol I simplifies the job of determining which of its provisions are serious violations of international humanitarian law incurring individual criminal responsibility. Article 85 of Additional Protocol I expands the concept of grave breaches as set out in the Geneva Conventions themselves, and then lists a series of acts deemed to be grave breaches of the Protocol itself. These include making the civilian population, individual civilians and persons who are hors de combat the object of attack, and launching an indiscriminate attack aVecting the civilian population or civilian objects. It recognises a second category, labelled ‘breaches’ but without the adjective ‘grave’. These include transfer by the occupying Power of parts of its own civilian population into the territory it occupies, unjustifiable delay in the repatriation of prisoners of war or civilians, practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination, and attacking objects of cultural significance. A helpful guide is provided by the Rome Statute, which also codifies several serious violations of Additional Protocol I and assists in justifying their status as crimes under customary international law.244 Prosecutions under provisions of Additional Protocol I have been relatively limited, but there are some examples in the case law of the ICTY. Convictions have been registered for violations of article 51(2), namely ‘unlawful attack on civilians’, and article 52(1), ‘unlawful attack on civilian objects’, with specific reference to Additional Protocol I.245 As noted by an ICTY Trial Chamber, 242

243

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‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134, para. 12. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 16. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(b). Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 328.

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[t]hese provisions concern unlawful attacks on civilians or civilian objects and are based on Hague law relating to the conduct of warfare, which is considered as part of customary law. To the extent that these provisions of the Additional Protocols echo the Hague Regulations, they can be considered as reflecting customary law. It is indisputable that the general prohibition of attacks against the civilian population and the prohibition of indiscriminate attacks or attacks on civilian objects are generally accepted obligations. As a consequence, there is no possible doubt as to the customary status of these specific provisions as they reflect core principles of humanitarian law that can be considered as applying to all armed conflicts, whether intended to apply to international or non-international conflicts.246

Unlawful attacks on civilians and unlawful attacks on civilian objects have been described as ‘those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects. Such attacks are in direct contravention of the prohibitions expressly recognised in international law including the relevant provisions of Additional Protocol I.’247 Unlike Additional Protocol I, individual criminal responsibility is not contemplated by Additional Protocol II. A proposal to incorporate a ‘grave breaches’ provision comparable to the one in Additional Protocol I, and in the Geneva Conventions, but that would be applicable to non-international armed conflict, was rejected at the time the instrument was being drafted. However, some provisions of Additional Protocol II have been held to meet the test for incorporation into customary international law as international crimes, and therefore they too fall within the ambit of article 3 of the ICTY Statute as ‘serious violations of the laws or customs of war’. As for the ICTR and SCSL, these tribunals are given express jurisdiction over ‘collective punishments’, ‘acts of terrorism’, ‘pillage’ and ‘threats to commit’ violations of Additional Protocol II. As with all other ‘war crimes’, for Additional Protocol II to find application the Prosecutor must first demonstrate the existence of an armed conflict. Additional Protocol II applies to non-international armed conflict, but the

246

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Kordic´ et al. (IT-95-14/2-T), Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, para. 31 (reference omitted). Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 328; Kordic´ et al. (IT-9514/2-A), Judgment, 17 December 2004, paras. 40, 47–67; Strugar et al. (IT-01-42-PT), Decision on Defence Preliminary Motion Challenging Jurisdiction, 7 June 2002, paras. 11–22; Strugar et al. (IT-01-42-AR72), Decision on Interlocutory Appeal, 7 June 2002, para. 10; Strugar (IT-01-42-T), Judgment, 31 January 2005, paras. 222–226.

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threshold of intensity is somewhat higher than that provided for common article 3.248 Additional Protocol II applies to conflicts which ‘take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.249 In Akayesu, an ICTR Trial Chamber explained that ‘[u]nder Additional Protocol II, the parties to the conflict will usually either be the government confronting dissident armed forces, or the government fighting insurgent organized armed groups. The term ‘‘armed forces’’ of the High Contracting Party is to be defined broadly so as to cover all armed forces as described within national legislations.’250 These conditions seem to apply to the conflicts in Rwanda and Sierra Leone, and to much of the conflict in the former Yugoslavia. Whether the conflict in Kosovo in 1998 and 1999 was a ‘Protocol II conflict’ for all or part of this period is debatable, and the issue is currently being litigated in pending cases.251 ‘Violations of the laws or customs of war’, set out in article 3 of the statute of the ICTY, should apply both to the serious violations of Additional Protocol II that are listed in the relevant provisions of the ICTR and SCSL statutes, and to other ‘serious violations’ of the Protocol. The exercise of determining which provisions of Additional Protocol II are constitutive of international crimes is more complex than it is with common article 3, if only because the Protocol is so much more extensive. Moreover, the virtual universal ratification of the Geneva Conventions strengthens their claim to customary law status, whereas Additional Protocol II is still far from such acceptance. The ICTR and SCSL statutes rely essentially on the list of punishable acts in article 4(2) of Additional Protocol II, with the exception of slavery, which is

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Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 100; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 171; Rutaganda (ICTR96-3-T), Judgment and Sentence, 6 December 1999, para. 94. Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609, art. 1(1). See: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 601–602, 622–623; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 91. Note, in this respect, the attempts by the drafters of the Rome Statute to find some middle ground between the thresholds of common article 3 and Additional Protocol II in article 8(2)(f) of the Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 625. Also: Musema (ICTR96-13-T), Judgment and Sentence, 27 January 2000, para. 256. See: Limaj et al. (IT-03–66-PT), Second Amended Indictment, 6 November 2003, para. 4; Haradinaj et al. (IT-04-84-I), Indictment, 24 February 2005, paras. 14–15; Milosˇevic´ (IT-02–54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 14–40.

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inexplicably excluded. But aside from article 4(2), some other provisions of Additional Protocol II have formed the basis of prosecutions. Some of the punishable acts closely resemble (and are clearly drawn from) common article 3 to the Geneva Conventions, and are discussed under that heading.252

Collective punishments The serious violation described as ‘collective punishments’ that appears in article 4(b) of the ICTR Statute and article 3(b) of the SCSL Statute is drawn from article 4 of Additional Protocol II. It does not appear in the Rome Statute, a lacuna that might be taken as a challenge to its claim to customary legal status. However, imposition of collective punishments might also be punishable indirectly as ‘[t]he passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, aVording all judicial guarantees which are generally recognized as indispensable’.253 The imposition of collective penalties on civilians was identified as a war crime by the Commission on Responsibilities, in 1919,254 and was successfully prosecuted as such by post-Second World War tribunals.255 Indictments before the SCSL allege that a range of acts, also punishable as distinct war crimes or crimes against humanity, were committed ‘to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide suYcient support to the AFRC/RUF’.256 Members of other combatant factions are charged with committing crimes ‘to punish the civilian population for their support to, or failure to actively resist, the combined RUF/AFRC forces’.257 But it should not be necessary to invoke commission of a distinct crime in order to uphold an accusation of collective punishment. In some situations, a prohibited collective punishment will be otherwise lawful and not associated with another criminal act.

252 253

254

255

256

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Above at pp. 265–274. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(c)(iv). Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of America and Japanese Members of the Commission on Responsibilities, Conference of Paris, 1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law 95, at p. 115. In re Kappler, (1948) 15 ILR 471 (Military Tribunal of Rome); In re Rauter, (1949) 16 ILR 526 (the Netherlands, Special Criminal Court); United States of America v. von Leeb et al., (1950) 11 TWC 462, 521–524. Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, para. 41; Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para. 44. Norman et al. (SCSL-03–14-I), Indictment, 4 February 2004, para. 28.

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Pillage The crime of pillage is drawn from article 4(g) of Additional Protocol II, which is itself based upon article 28 of the 1907 Regulations. (‘The pillage of a town or place, even when taken by assault, is prohibited.’) Indictments at the SCSL allege pillage to include ‘widespread looting and burning’.258 Acts of ‘pillage’ have been held to be comprised within ‘plunder’, which is a violation of the laws or customs of war listed in article 3(e) of the ICTY Statute, and derived from the Nuremberg Charter and the 1907 Hague Convention.259

Acts of terrorism The serious violation described as ‘acts of terrorism’ that appears in article 4(d) of the ICTR Statute and article 3(d) of the SCSL Statute is drawn from article 4 of Additional Protocol II. It does not appear in the Rome Statute, which may raise issues as to its claim to customary legal status. The Rome Conference failed to agree on whether or not to include terrorism as such as a prohibited act, although it is widely agreed that terrorist acts often fit within the parameters of other oVences within the jurisdiction of the ICC, to the extent they meet the contextual requirements. Indictments at the SCSL allege that a range of acts, all of them punishable under distinct provisions as either war crimes or crimes against humanity, were also criminal because they were committed ‘as part of a campaign to terrorise the civilian population of Sierra Leone‘, and did terrorise that population.260 In the ICTY case concerning the bombardment of Sarajevo, the indictment referred to ‘[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population’, a war crime drawn from article 51(2) of Additional Protocol I, and article 13(2) of Additional Protocol II. The Trial Chamber described terror as ‘extreme fear’, and noted that the term ‘primary purpose’ in the treaty provision makes terror a crime of ‘specific intent’. This means that the Prosecutor must prove not only that the accused accepted the likelihood that terror would result from illegal acts, or that he or she was aware of the possibility that terror would result, but that this result was specifically intended. This excludes therefore a mens rea of dolus eventualis

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Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para. 77; Norman et al. (SCSL-03–14-I), Indictment, 4 February 2004, para. 27; Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, paras. 74–79. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 147; Delalic´ (IT-96-21-A), Judgement, 20 February 2001, para. 591; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 77. Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, para. 41; Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para. 44; Norman et al. (SCSL-03-14-I), Indictment, 4 February 2004, para. 28.

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or recklessness.261 It is not necessary to establish that terror was actually inflicted, or any causal relationship between the accused’s acts and the production of terror. On this basis, Stanislav Galic´ was convicted of spreading terror within the civilian population of Sarajevo, for his responsibility with respect to shelling and sniping of the city.262

Slavery and the slave trade Slavery and the slave trade is the one component of article 4(2) of Additional Protocol II that is not included in article 4 of the ICTR Statute and article 3 of the SCSL Statute. There is no obvious explanation for this omission. Perhaps it was not deemed relevant to the conflict in Rwanda. The ICTR Statute was the model for the SCSL Statute, so this strange oversight has persisted, despite the fact that forms of slavery or enslavement were a persistent feature of the conflict in Sierra Leone. And it is surely ironic to exclude two crimes that left an indelible mark on Sierra Leone over the course of several centuries. It would be like establishing a tribunal for South Africa and omitting the crime of apartheid. It might be argued that ‘slavery and the slave trade’ are implicit within article 3 of the SCSL Statute, to the extent that the list of crimes is exemplary but not exhaustive of serious violations of Additional Protocol II over which the SCSL has jurisdiction. But the Prosecutor seems to have taken the position that slavery is punishable under the Statute only as a crime against humanity.263 Slavery has been charged before the ICTY as a violation of article 3 of the Statute, with reference to article 4 of Additional Protocol II: ‘The Trial Chamber accepts that the express prohibition of slavery in Additional Protocol II of 1977, which relates to internal armed conflicts, confirms the conclusion that slavery is prohibited by customary international humanitarian law outside the context of a crime against humanity.’264 Of course, enslavement is also a crime against humanity in accordance with article 5(c) of the ICTY Statute, and the same principles apply.265 The underlying elements of the

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Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 219–220; Blagojevic´ et al. (IT-02–60T), Judgment on Motions for Acquittal Pursuant to Rule 98bis, 5 April 2004, para. 50; Blasˇkic´ (IT-95-14-A) Judgment, 29 July 2004, para. 39. Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003. See also: Blagojevic´ et al. (IT-02–60-T), Judgment, 17 January 2005, paras. 589–590; Daniela Kravetz, ‘The Protection of Civilians in War: The ICTY’s Galic´ Case’, (2004) 17 Leiden Journal of International Law 521. Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para. 76; Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, para. 73. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 108. Ibid., para. 108.

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crime of enslavement are discussed in greater detail under the heading ‘crimes against humanity’. The crime against humanity of enslavement is the third on the list in the definitions of the three statutes. Elements of the crime against humanity of enslavement are discussed under the heading of ‘Slavery’ as a violation of the laws or customs of war, where the same principles apply.266

Other serious violations of international humanitarian law Only the Special Court for Sierra Leone has a provision entitled ‘other serious violations of international humanitarian law’. This of course confirms the conclusion that it has no residual jurisdiction over serious violations of international humanitarian law, unlike the ICTY, where this residual jurisdiction is derived from article 3 of the ICTY Statute and the prohibition of ‘violations of the laws or customs of war’. The Special Court for Sierra Leone has jurisdiction over three specific categories of oVence. Generally, these have been derived from provisions of the Rome Statute, where they were inspired by prohibitions in the Additional Protocols. Article 4 of the SCSL Statute does not indicate whether or not these infractions apply to non-international or to international armed conflict, or to both. Although agreeing that it was probably accurate to conclude that article 4 of the SCSL Statute was drafted with non-international armed conflict in mind, the SCSL Appeals Chamber held there was no merit to the argument that it was not also applicable to international armed conflict.267

Attacking civilians The serious violation of ‘[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’ is prohibited by article 4(a) of the SCSL Statute. According to the report of the Secretary-General, the customary international law nature of this oVence is ‘firmly established’.268 It is sobering to recall that attacks intentionally directed against civilians were a feature of the Second World War, for example, and that they were perpetrated by all sides in the conflict. The prohibition would seem to be rather recent, therefore, or perhaps it is more accurate to say that it is applied with considerable deference to what is euphemistically described as ‘military necessity’. This can be confirmed with reference to article 51 of Additional Protocol I and article 13 of Additional

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Above at pp. 201–203. Fofana (SCSL-04-14-AR72(E)), Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of Armed Conflict, 25 May 2004, para. 30. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 16.

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Protocol II. Article 4(a) of the SCSL Statute is copied directly from article 8(b) (i) of the Rome Statute of the International Criminal Court, which is applicable to international armed conflict, and article 8(e)(i), which is applicable to non-international armed conflict. The oVence is based on what international humanitarian law describes as the principle of distinction. In Blasˇkic´, an ICTY Trial Chamber said, ‘[t]he parties to the conflict are obliged to attempt to distinguish between military targets and civilian persons . . . Targeting civilians . . . is an oVence when not justified by military necessity.’269 But in Kupresˇkic´, the ICTY warned that [t]he protection of civilians and civilian objects provided by modern international law may cease entirely or be reduced or suspended in three exceptional circumstances: (i) when civilians abuse their rights; (ii) when, although the object of a military attack is comprised of military objectives, belligerents cannot avoid causing so-called collateral damage to civilians; and (iii) at least according to some authorities, when civilians may legitimately be the object of reprisals.270

The International Court of Justice has made the link between the prohibition of attacks on civilians and the use of weapons, such as nuclear weapons, that are incapable of distinguishing between civilian and military targets.271 The ICTY has prosecuted ‘unlawful attacks on civilians’ as a violation of Additional Protocol I, under the heading of article 3 of its Statute. It has held that these consist of attacks ‘launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects. Such attacks are in direct contravention of the prohibitions expressly recognised in international law including the relevant provisions of Additional Protocol I.’272 The ICTY Appeals Chamber has said that for this oVence to be made out, there was some State practice, at the time of the war in Bosnia and Herzegovina, requiring evidence that the unlawful attacks on civilians resulted in serious injury, death or damage.273

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Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 180. Also: Kordic´ et al. (IT-95-14/ 2-T), Judgment, 26 February 2001, para. 328. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 522. Legality of the Threat or Use of Nuclear Weapons, para. 78. See also: Martic´ (IT-95-11R61), Review of the Indictment Under Rule 61, 8 March 1996, para. 18: ‘the choice of a weapon and its use are clearly delimited by the rules of international humanitarian law’. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 328; Kordic´ et al. (IT-9514/2-A), Judgment, 17 December 2004, para. 40. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 66.

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Attacking humanitarian personnel or peacekeepers The second crime on the list of ‘other serious violations’ within the jurisdiction of the SCSL involves attacking humanitarian or peacekeeping missions: ‘Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’. Article 4(b) of the SCSL Statute is copied directly from article 8(b)(iii) of the Rome Statute of the International Criminal Court, which is applicable to international armed conflict, and article 8(e)(iii), which is applicable to non-international armed conflict.274 According to the report of the Secretary-General: Although established for the first time as an international crime in the Statute of the International Criminal Court, it was not viewed at the time of the adoption of the Rome Statute as adding to the already existing customary international law crime of attacks against civilians and persons hors de combat. Based on the distinction between peacekeepers as civilians and peacekeepers turned combatants, the crime defined in article 4 of the Statute of the Special Court is a specification of a targeted group within the generally protected group of civilians which because of its humanitarian or peacekeeping mission deserves special protection.275

Two of the consolidated indictments before the SCSL allege violations of this provision.276

Child soldiers The final crime listed under ‘other serious violations’ involves the forced recruitment of children. Article 4(c) of the SCSL Statute is identical to article 8(b)(xxvi) of the Rome Statute of the International Criminal Court, which is applicable to international armed conflict, and it is virtually identical to article 8(e)(vii), which is applicable to non-international armed conflict (the Rome Statute provision refers to ‘the national armed forces’ rather than ‘armed forces or groups’). But this is not what appeared in the first draft of the Statute. According to the Secretary-General, the Rome Statute provision had a ‘doubtful customary nature’,277 and it was preferable to criminalise the acts of 274 275

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For detailed discussion of this oVence, see: Do¨rmann, Elements of War Crimes, pp. 153–160. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 16. Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para. 83; Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, para. 80. Also: Taylor (SCSL-03-01-I), Indictment, 7 March 2003, para. 59. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 18.

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‘[a]bduction and forced recruitment of children under the age of 15 years’.278 He explained: While the definition of the crime as ‘conscripting’ or ‘enlisting’ connotes an administrative act of putting one’s name on a list and formal entry into the armed forces, the elements of the crime under the proposed Statute of the Special Court are: (a) abduction, which in the case of the children of Sierra Leone was the original crime and is in itself a crime under common article 3 of the Geneva Conventions; (b) forced recruitment in the most general sense – administrative formalities, obviously, notwithstanding; and (c) transformation of the child into, and its use as, among other degrading uses, a ‘child-combatant ’. 279

The Security Council disagreed, and proposed that article 4(c) be modified ‘so as to conform it to the statement of the law existing in 1996 and as currently accepted by the international community’,280 in other words, to the text found in the Rome Statute. The proposal was accepted by the Secretary-General without comment.281 The conflict in views on this matter inspired defence lawyers to challenge the legality of article 4(c). Ruling on a preliminary motion, the Appeals Chamber of the SCSL held that there was no problem with retroactivity in the provision on child soldiers. After canvassing a range of authorities supporting the criminalisation of recruitment of child soldiers, but without ever speaking to the Secretary-General’s own hesitations on the point, a majority of the Appeals Chamber dismissed the motion.282 Judge GeoVrey Robertson’s dissenting opinion reflected on the position taken by the Secretary-General at the time the Statute was drafted: It might strike some as odd that the state of international law in 1996 in respect to criminalisation of child soldiers was doubtful to the UN Secretary-General but very clear to the President of the Security Council only two months later. If it was not clear to the Secretary-General and his legal advisors that international law had by 1996 criminalised the enlistment of child soldiers, could it really have been any clearer to Chief Hinga Norman or any other defendant at that time, embattled in Sierra Leone?283

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279 Ibid., p. 22. Ibid., para. 18. ‘Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General’, UN Doc. S/2000/1234, p. 2. ‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council’, UN Doc. S/2001/40, p. 1. Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004. Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May 2004, para. 6.

PA R T I I I Substantive and procedural aspects of prosecution

9 General principles of law

Criminal law makes a classic distinction between the ‘special part’ and the ‘general part’, and this is reflected in most criminal codes. The ‘special part’ consists of the oVences subject to prosecution, and has been treated in this study under the heading of subject-matter jurisdiction. Within the context of international criminal law this makes more sense because, unlike domestic legal systems where the ‘special part’ comprises all acts to which society has decided to attach criminal consequences, international criminal law contemplates only a relatively limited sub-set of criminal behaviour. The ‘general part’ refers to a body of rules applicable to criminal oVences, mainly those concerning how individuals participate in criminal activity and the justifications or excuses they invoke in answer to criminal charges. Most criminal justice systems provide relatively extensive and detailed codifications of these ‘general principles’, although much of their formulation and elaboration is also left to judges. The statutes of the United Nations ad hoc criminal tribunals for the former Yugoslavia, Rwanda and Sierra Leone say relatively little about the general principles of law applicable to the oVences within their subject-matter jurisdiction. This is in keeping with the model of the Nuremberg Charter, but dramatically at variance with the Rome Statute of the International Criminal Court, which contains a relatively detailed section of general principles, most of them found in Part 3. It consists of twelve provisions and is entitled ‘General Principles of Criminal Law’.1 The key provision setting out general principles is virtually identical in all three statutes. Article 7 of the ICTY Statute states:

1

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, arts. 22–33. See: Per Saland, ‘International Criminal Law Principles’, in Roy Lee, ed., The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results, The Hague: Kluwer Law International, 1999, pp. 189–216; William A. Schabas, ‘General Principles of Criminal Law in the International Criminal Court Statute (Part III)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 84; Kai Ambos, ‘General Principles of Criminal Law in the Rome Statute’, (1999) 10 Criminal Law Forum 1.

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Individual criminal responsibility 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. 2. The oYcial position of any accused person, whether as Head of State or Government or as a responsible Government oYcial, shall not relieve such person of criminal responsibility nor mitigate punishment. 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Article 6 of the ICTR Statute diVers only in the specific references to provisions of the Statute (articles 2 to 4 instead of articles 2 to 5), and in the addition of feminine pronouns to the gender-insensitive text adopted by the Security Council in 1993 with respect to the ICTY. Article 6 of the SCSL Statute is modelled on the ICTR Statute, but it contains a fifth paragraph, providing that in the event of prosecutions for the crimes in the Statute that are specific to Sierra Leonean law, the general principles of the national system will apply. There have been no prosecutions for such crimes; this provision is therefore of purely theoretical interest, and will not be considered in detail here. Although they are not organised systematically, the four paragraphs in this provision can be rather neatly divided into the two categories that are central to ‘general principles’ of criminal law. In eVect, paragraphs 1 and 3 concern modes of participation in criminal activity, while paragraphs 2 and 4 deal with excuses or justifications raised in defence to a criminal charge. Principles of criminal participation are also addressed in paragraph 3 of the genocide provisions in the ICTY and ICTR statutes. The text is borrowed from article III of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Another related oVence appears in article 2 of the ICTY Statute, whose introductory paragraph or chapeau speaks of persons ‘committing or ordering to be committed’ grave breaches of the Geneva Conventions. This does double duty with the references to both ‘committed’ and ‘ordered’ in paragraph 7(1). The language of article 2 is borrowed from the grave breaches provisions of the Geneva Conventions themselves and, like article 4 (3) concerning participation in the crime of genocide, it is an example of the

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redundancy in the statutes that has resulted from their ‘cut and paste’ approach to legislative drafting. These provisions are very summary indeed, and neither have provided the tribunals with specific answers to many of the problems that arise in the context of criminal participation and defences, nor have they even oVered them any guidance upon which to develop their own rules. The judges have been left largely on their own in this respect. Over the years, they have developed a sophisticated body of law that largely draws upon the solutions developed in various national legal systems but that also has its own specificity. The judgments of the post-Second World War tribunals have been of some assistance, although their importance should not be exaggerated. Most of the work by the tribunals in developing their own general principles took place subsequent to the adoption of the Rome Statute. The result is that the case law of the ICTYand ICTR had little influence on the general principles provisions in the Rome Statute. In fact, things worked in the other direction. The rather detailed provisions of the Rome Statute concerning general principles have left a significant imprint on those applied by judges at the ad hoc tribunals. Inevitably, individual judges have been strongly influenced by the criminal law systems that they are most familiar with, generally those of their country of origin. But in contrast to the area of criminal procedure, where there are fundamentally diVerent philosophies at work in the competing models, the distinctions between national systems with respect to general principles appears to be less significant. To the extent that issues such as the availability of excuses and justifications are approached diVerently depending upon the national system, it is not nearly as easy to attribute this to the fundamentally distinct orientations of common law and so-called ‘civil law’ jurisdictions. In Erdemovic´, for example, the Appeals Chamber divided on the issue of whether duress or compulsion should be admissible as a defence. The majority, led by a commonlaw-trained judge, said it should not. There were two dissenters, Antonio Cassese, a civil-law-trained Italian, and Ninian Stephen, a common-lawtrained Australian. Despite their diVerences in legal pedigree, the two came to the same result.2 In practice, the Australian criminal justice system probably diVers as much from those with similar origins, such as the common law systems of Canada, Ireland, India and the United Kingdom, as it does from those in force in continental Europe as well as those derived from them. Judges McDonald and Vohrah, whose views prevailed in Erdemovic´, compared the approaches of ‘civil law systems’ and ‘common law systems’ with respect to the defence of duress. Then they proposed a third rubric, entitled ‘[c]riminal law of other states’, that includes Japan, China, Morocco, Somalia and Ethiopia.3 This 2

3

Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese; Separate and Dissenting Opinion of Judge Stephen, 7 October 1997, para. 5. Ibid., Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 61.

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illustrates the real diYculty in trying to classify ‘general principles’ in terms of systems or schools of criminal law, a matter that does not present itself in the same way with respect to procedure. Incomplete or ‘inchoate’ crimes are also properly dealt with under the heading of general principles. Three ‘inchoate’ or incomplete oVences are provided for in the genocide provisions of the ICTY and ICTR statutes, namely conspiracy, direct and public incitement, and attempt. These oVences do not actually require the commission of the underlying crime of genocide. They are discussed in detail elsewhere in this study.4 It is not possible for the tribunals to prosecute the inchoate oVences of conspiracy, attempt and incitement to commit war crimes or crimes against humanity, however. As an ICTR Trial Chamber has noted, ‘[a]rticle 6(1) does not criminalize inchoate oVences, which are punishable only for the crime of genocide’.5 Because genocide is not included in the SCSL Statute, it contains no inchoate oVences.

Mental and physical elements (mens rea and actus reus) The judgments of the tribunals frequently refer to the mental and physical elements of crimes, often using the Latin legal shorthand of mens rea (literally, ‘guilty mind’) and actus reus (‘guilty act’). All crimes require both a mental and a physical element. Sometimes, these two components of a crime are also described as its objective and subjective dimensions. It is not a crime merely to think an evil thought, and nobody will be convicted merely for having a guilty mind. This fairly straightforward proposition is matched with another more troublesome one, namely that nobody who contributes to the perpetration of a prohibited act will be punished to the extent that their act or omission is not the work of a guilty mind. Nor is it always easy to define exactly what a guilty ‘act’ consists of. For example, it may appear a bit anomalous to consider that a guilty ‘act’ may take the form of an omission. There is very little in the statutes to assist in applying these concepts. The Rome Statute provides a detailed provision respecting the mental element or mens rea of crimes within its jurisdiction. It does not, however, have an equivalent text defining the material element or actus reus. This was not for want of trying, and there were several useful proposals, yet the drafters ultimately could not reach agreement and decided that that matter could be left to judges to work out appropriate solutions. Of course, the definitions of the crimes themselves provide indications to assist in identifying the mens rea and the actus reus of oVences. For example, three distinct paragraphs of article 2 of the ICTY Statute use the word ‘wilful’ or ‘wilfully’. Another paragraph uses the term ‘wantonly’. One of the violations of the laws or 4 5

See above at pp. 178–183. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 378 (emphasis in the original).

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customs of war in paragraph 3 of the ICTY Statute refers to the use of prohibited weapons in a manner ‘calculated’ to cause unnecessary suVering. Genocide, of course, employs the word ‘intent’ in its definition, and the ICTY and ICTR have called this the ‘specific intent’ or dolus specialis of the crime. The crime against humanity of persecution must be perpetrated ‘on political, racial and religious grounds’. All of these provisions assist in defining the mental element associated with the prohibited act. A literal interpreter of the statutes might argue that absent words in the definitions of crimes indicating a mental element, it should be suYcient to establish that the accused perpetrated the material act or omission. Given the silence of legislation respecting the mental element of crime, common law justice systems have taken the view that the mental element is a presumption that can only be set aside by precise and specific legislation. Essentially this is the same approach that the tribunals have taken. It is consistent with general principles of law. Moreover, it is probably mandated by the presumption of innocence, which is enshrined in international human rights law as well as in the statutes themselves.6 Criminal law theorists have identified several categories within the general heading of mental element or mens rea. Common law systems usually speak of crimes committed with premeditation, with intention, with recklessness and with negligence. Continental law systems often use Latin terms that approximate the common law distinctions although they do not correspond perfectly: dolus specialis, dolus generalis, dolus directus, dolus eventualis. The tribunals have considered these distinctions with respect to the crime of homicide, for example. The crimes against humanity provisions in the three statutes use the term ‘murder’, a word that dictionaries define as intentionally causing death. Judges at the tribunals have quarrelled over whether murder also requires that the intent to cause death be planned or premeditated. The French version of the statutes uses the term assassinat, which implies premeditation. But most of the judgments have only required that the crime against humanity of murder be the result of a person acting intentionally, as distinct from a person acting accidentally.7 The definition of genocide uses the word ‘killing’ to refer to homicide. Dictionary definitions consider killing to mean causing death, even absent a

6 7

ICTY Statute, art. 21(3); ICTR Statute, art. 20(3); SCSL Statute, art. 17(3). For: Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, paras. 84–85; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 138–139; Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 334–339. Against: Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 214; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 79; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 588.

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mind that intends to cause such a result. In this sense, killing can cover negligent homicide as well as intentional homicide (i.e., murder). But the tribunals have taken a narrow view of killing, and held that it is not broad enough to cover acts of mere negligence or manslaughter.8 The closest the statutes come to authorising prosecution of crimes of negligence is in their provisions dealing with command or superior responsibility. Article 7(3) of the ICTY Statute says that an individual may be convicted of a crime if ‘he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof ’.9 In other words, it is possible to convict a person with superior authority who had no knowledge a crime was to be committed to the extent that he or she ‘had reason to know’. On this basis, it is possible to convict a person who actually had no knowledge or intent. Evidence of such facts might even be refused by the tribunals as being irrelevant to the question of guilt or innocence.10 The boundary distinguishing negligent from intentional killing is not simple to define, because somewhere in the middle between these two concepts lies what is often described as ‘recklessness’. Many judgments of the tribunals have defined the mens rea of murder or wilful (i.e., intentional) killing as involving the intent ‘to cause death or serious bodily injury which, as it is reasonable to assume, he had to understand was likely to lead to death’.11 Another speaks of an accused having an ‘awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct’.12 The Blasˇkic´ Trial Chamber attempted to explain the distinctions as follows: ‘The mens rea constituting all the violations of Article 2 of the Statute includes both guilty intent and recklessness which may be likened to serious criminal negligence.’13 In addition to the mental elements associated with specific punishable acts are those that accompany the category of international crime. Several judgments have used the term ‘specific intent’ or dolus specialis to describe the very high level of intent required of persons charged with the crime of genocide, which is derived from the plain words of the provision. The perpetrator must carry out the act – killing, causing serious bodily harm, etc. – with the intent to destroy the targeted group.14 It is not enough to

8 9 10 11 12 13 14

Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 151. Also, ICTR Statute, art. 6(3), SCSL Statute, art. 6(3). Superior or command responsibility is discussed below at pp. 314–324. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 153. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 251. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 152. This is discussed in detail above at pp. 164–169.

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intend to kill members of a group, the mens rea of killing must be enhanced with a genuinely genocidal mens rea. Similarly, with respect to crimes against humanity, the oVender must have some knowledge of the context within which the crime takes place.15 Although it is axiomatic that the oVender must commit the crime with intent, that is, with the mens rea particular to the oVence, rarely is there any direct evidence of this element of the crime. In eVect, there is an evidentiary presumption that persons who commit acts or omissions do so intentionally, absent indications to the contrary. Thus, it is for the accused person to demonstrate that he or she did not actually intend to commit the act in question. As a general rule, this takes the form of an excuse, such as insanity, intoxication or duress. Motive is another aspect of the state of mind of the oVender that is distinct from intent, but not entirely irrelevant to the question of guilt or innocence. Most criminal justice systems do not consider motive to be an element of criminal liability. It is a factor to be taken into account in assessing the gravity of the oVence and the specific circumstances of the individual, principally at the time of sentencing. In Tadic´, the Appeals Chamber referred to the ‘inscrutability of motives in criminal law’.16 In another ruling, the ICTY Appeals Chamber said that ‘[s]hared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise’.17 Motive may also be significant as evidence of guilt or innocence, in that it may be unreasonable to conclude that a person intended to commit a crime if he or she did not have any reason to do so. To every rule there are exceptions, however, and motive is most certainly relevant to the issue of guilt or innocence with respect to two types of international crime. The first is the crime against humanity of persecution, where the text of all of the relevant provisions says the impugned acts must be committed ‘on political, racial and religious grounds’. The tribunals have referred to this as the ‘discriminatory intent’, but it is probably more accurate to regard it as the motive.18 The second is genocide, where the seemingly enigmatic words ‘as such’ at the end of the introductory paragraph of the definition indicate motive, as the travaux pre´paratoires of the 1948 Convention demonstrate.19 The principal diYculty that arises with respect to the actus reus or material element is the question of omission. It was the inability to reach a satisfactory 15

16 17 18 19

Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 102, 410; Tadic´ (IT-94-1A), Judgment, 15 July 1999, para. 271; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 99–100. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 269. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 106. Ibid., para. 463. Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 49.

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codification of crimes of omission that led the drafters of the Rome Statute to omit (!) any provision on the material element. As a result, commentators debate whether and to what extent the Rome Statute may apply to omission as well as acts. There is much authority in the case law of the ad hoc tribunals for the proposition that the actus reus of a crime may consist in an omission, but only to the extent that there is a ‘duty to act’.20 Other judgments speak of ‘a culpable omission in violation of criminal law’.21

Participation Paragraph 1 of the article common to all three statutes dealing with criminal participation refers to ‘[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime . . . shall be individually responsible for the crime’. Explaining the rationale for the provision, the Secretary-General’s Report to the Security Council states ‘that all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia are individually responsible for such violations’.22 The ICTY Appeals Chamber has given article 7(1) a very broad interpretation: An interpretation of the Statute based on its object and purpose leads to the conclusion that the Statute intends to extend the jurisdiction of the International Tribunal to all those ‘responsible for serious violations of international humanitarian law’ committed in the former Yugoslavia (Article 1). As is apparent from the wording of both Article 7(1) and the provisions setting forth the crimes over which the International Tribunal has jurisdiction (Articles 2 to 5), such responsibility for serious violations of international humanitarian law is not limited merely to those who actually carry out the actus reus of the enumerated crimes but appears to extend also to other oVenders (see in particular Article 2, which refers to committing or ordering to be committed grave breaches of the Geneva Conventions and Article 4 which sets forth various types of oVences in relation to genocide, including conspiracy, incitement, attempt and complicity) . . . it is fair to conclude that the Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning,

20

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Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 41; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 123. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 601; Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 390; Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 62; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 383. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 54.

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preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable.23

The Appeals Chamber noted that such an interpretation was compelled by the nature of the crimes being addressed by the Tribunal. These generally result not from the criminal propensity of single individuals but are manifestations of collective criminality, carried out by groups of individuals acting in pursuance of a common criminal design. While some members of the group physically perpetrate the criminal act, the participation and contribution of the other members of the group is often vital in facilitating its commission. ‘It follows that the moral gravity of such participation is often no less – or indeed no diVerent – from that of those actually carrying out the acts in question’, concluded the Appeals Chamber.24 Buried in the paragraph is the word ‘committed’, which is perhaps an attempt to muddy the traditional distinction between primary and secondary participation in crime. The person who ‘commits’ the crime is usually described as the ‘primary’ perpetrator, while he or she who plans, instigates, orders, or aids and abets in the planning, preparation or execution is a ‘secondary’ perpetrator. ‘Secondary’ perpetration is also sometimes described as ‘complicity’ or ‘accessory liability’.25 A good reason not to insist too much on the distinction between primary and secondary participation in the case of international crimes is that so-called ‘secondary’ oVenders, that is, those who plan, instigate, or order atrocities, are arguably far more evil than those who ‘merely’ perpetrate the foul deeds. Most people would not have diYculty with the proposition that an Eichmann is a more serious criminal than an ordinary concentration camp guard, and would object to the suggestion that the guard is in some way the ‘primary’ oVender whereas Eichmann is categorised as ‘secondary’. But the tribunals do recognise a degree of hierarchy here, in that where an individual is found to have both committed and planned to commit an oVence, that person will be convicted of commission and not planning.26 To this extent, planning, as well as instigation, ordering and aiding and abetting, are treated as forms of ‘secondary’ participation. 23 24 25 26

Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 189–190 (emphasis in the original). Ibid., para. 191. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 386.

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Commission A finding of direct commission ‘requires the direct personal or physical participation of the accused in the actual acts which constitute a crime under the International Tribunal’s Statute with the requisite knowledge’.27 There may be several ‘primary’ perpetrators of the same act, to the extent that the mental and physical elements are established with respect to each and every one of them.28 But individual perpetrators may have specific arguments to raise in defence, so that where several persons commit a criminal act collectively, if one of the participants is judged insane there will be no finding of guilt with respect to that person. One ICTY Trial Chamber defined ‘committing’ as follows: ‘that the accused participated, physically or otherwise directly or indirectly, in the material elements of the crime charged through positive acts or, based on a duty to act, omissions, whether individually or jointly with others. The accused himself need not have participated in all aspects of the alleged criminal conduct.’29 The general distinctions in the common provisions of the three statutes concerning persons who plan, instigate, commit, etc. are completed, in the case of the ICTY and ICTR statutes, with more specific language in the provision dealing with genocide. The preliminary paragraph or chapeau of the genocide provision common to both statutes refers to ‘committing genocide’ and to ‘committing any of the other acts enumerated in paragraph 3’. Paragraph 3 of the genocide text distinguishes ‘genocide’ from ‘complicity in genocide’. The term ‘genocide’ is no more than an alternative formulation for the term ‘commission’. The overlapping provisions have posed no problems of interpretation in this respect.

Planning A person who ‘planned’ as well as one who ‘aided and abetted in the planning [or] preparation’ of a crime is criminally responsible. Planning implies that ‘one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases’.30 An individual may be convicted

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Ibid., para. 376. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 390. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 439. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 279; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 601; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 480; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 37; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 119; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 30.

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of planning alone.31 Alternatively, there will be no conviction for planning if the oVender is found to have actually committed the crime.32 Judgments of the ICTR have held that the planning must be ‘substantial’, for example, ‘such as formulating a criminal plan or endorsing a plan proposed by another’, although there seems to be no good reason or justification for this, and no authority is oVered.33 There have been no convictions for the stand-alone crime of planning a crime within the jurisdiction of the tribunals. The statutes do not say this as explicitly as they might, but conviction for planning a crime must involve proof that the crime itself actually took place. Planning does not seem to exist as an inchoate or incomplete crime, capable of being committed merely upon evidence that a crime within the jurisdiction of the tribunals was contemplated and designed.34 An exception is genocide, for which ‘conspiracy’ to commit genocide is specifically provided. The travaux pre´paratoires of the 1948 Genocide Convention indicate that conspiracy to commit genocide may be committed even if no genocide actually takes place.35 In practice, this has not posed a problem for any of the tribunals, whose indictments have always concerned crimes that were actually committed.

Instigating Instigating a crime means ‘prompting another to commit an oVence’.36 The words ‘provoke’ and ‘incite’ have sometimes been used, suggesting that they are synonymous with ‘instigate’.37 A crime is instigated if ‘the conduct of the accused was a clear contributing factor to the conduct’ of the person who actually committed the crime.38 Instigating is not an inchoate oVence, and cannot be committed if someone was not actually instigated to commit a

31

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33

34 35 36

37

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Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 386; Bagilishema (ICTR95-1A-T), Judgment, 7 June 2001, para. 30. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 386; Stakic´ (IT-97-24T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 104; Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 443. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 380; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 30. Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 30. See the discussion of conspiracy to commit genocide, above at pp. 179–181. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 601; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 280. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 474–483; Akayesu (ICTR-96-4T), Judgment, 2 September 1998, para. 209; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 60. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 252; Naletilic´ et al. (IT98-34-T), Judgment, 31 March 2003, para. 60.

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crime.39 Unlike ‘direct and public incitement to commit genocide’, which is specifically provided for in the genocide provisions of the ICTY and ICTR statutes, the act of ‘instigation’ when generally applied to all crimes need not be direct or public.40 It is not necessary to show that the crime would not have occurred had it not been for the involvement of the accused, though.41 However, case law requires proof of a ‘causal relationship between the instigation and the crime itself ’, and the contribution of the accused must in fact have had an eVect on the commission of the crime.42 In Akayesu, for example, an ICTR Trial Chamber concluded that the accused had instigated rape, because he was present while rapes were being conducted by others, he was ‘laughing and happy to be watching and afterwards told the Interahamwe to take her away and said ‘‘you should first of all make sure that you sleep with this girl’’’.43 Another case illustrates the basis of a conviction for instigating: Barayagwiza was one of the principal founders of CDR [political party that depicted the Tutsi population as the enemy] and played a leading role in its formation and development. He was a decision-maker for the party. The CDR had a youth wing, called the Impuzamugambi, which undertook acts of violence, often together with the Interahamwe . . . against the Tutsi population. The killing of Tutsi civilians was promoted by the CDR, as evidenced by the chanting of ‘tubatsembatsembe’ or ‘let’s exterminate them’ by Barayagwiza himself and by CDR members in his presence at public meetings and demonstrations. The reference to ‘them’ was understood to mean the Tutsi population. Barayagwiza supervised roadblocks manned by the Impuzamugambi, established to stop and kill Tutsi. The Chamber notes the direct involvement of Barayagwiza in the expression of genocidal intent and in genocidal acts undertaken by members of the CDR and its Impuzamugambi. Barayagwiza was at the organizational helm. He was also on site at the meetings, demonstrations and roadblocks that created an infrastructure for and caused the killing of Tutsi civilians. [T]he Chamber finds . . . Barayagwiza guilty of instigating acts of genocide committed by CDR members and Impuzamugambi, pursuant to Article 6(1).44

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Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 210. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 474–483; Semanza (ICTR-97-20T), Judgment and Sentence, 15 May 2003, para. 381. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 252; Naletilic´ et al. (IT98-34-T), Judgment, 31 March 2003, para. 60. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 387; Blasˇkic´ (IT-95-14T), Judgment, 3 March 2000, paras. 278, 280. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 180. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, paras. 954, 975.

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Instigation can take the form of an omission as well as an act.45 Mere presence when an atrocity is being committed may amount to instigation, if the accused is a figure in authority who does nothing to discourage or halt the attack.46 According to an ICTR Trial Chamber, in Musema, the nature of the authority wielded by an individual aVects the assessment of that individual’s role in planning, instigating, ordering, committing or otherwise aiding and abetting the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the Statute. In particular, the presence of an authority figure at an event could amount to acquiescence in the event or support thereof, and, in the perception of the perpetrators, legitimise the said event.47

Musema himself was not even an oYcial, but merely a prominent local citizen and director of the tea factory. The Trial Chamber noted that he was ‘personally present at the attack sites’ and that he ‘nevertheless failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation’.48 In Tadic´, an ICTY Trial Chamber found presence to amount to a form of instigation or encouragement even absent proof of some form of position of authority: [W]hen an accused is present and participates in the beating of one person and remains with the group when it moves on to beat another person, his presence would have an encouraging eVect, even if he does not physically take part in this second beating, and he should be viewed as participating in this second beating as well. This is assuming that the accused has not actively withdrawn from the group or spoken out against the conduct of the group.49

Ordering ‘Ordering’ entails a person in a position of authority using that position to convince another to commit an oVence.50 It is closely related to ‘instigating’.51 The case law is divided on whether or not there must be a superior–subordinate 45

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Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 387; Blasˇkic´ (IT-95-14T), Judgment, 3 March 2000, para. 280. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 678, referring to Schonfeld et al., (1948) 11 LRTWC 64 (British Military Court), at pp. 69–70. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 865. Ibid., para. 894; also paras. 899, 905, 914, 924. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 690. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 601; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 483. Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 332.

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relationship, or whether it is suYcient to demonstrate that the accused possessed the authority to order.52 Ordering the commission of an oVence is closely related to command or superior responsibility, except that in the case of command or superior responsibility there is no need to prove that an actual order was given or that authority was exercised.53 It has been held that a person convicted of actually perpetrating the crime should not also be convicted of ordering it to be committed.54 An order may be explicit or implicit, and its existence can be proven through circumstantial evidence.55 It need not be given directly to the person who carries out the act, because ‘[w]hat is important is the commander’s mens rea, not that of the subordinate’.56 But because ordering is a form of participation rather than an inchoate oVence, there should be some sort of causal relationship between the act and the order. In other words, it cannot be enough to show that an order was given and that another person committed an act consistent with that order, unless there is also evidence of some connection between the two. The oVender must be aware of the substantial likelihood that a crime will be committed in the execution of that order. As the Appeals Chamber has stated, ‘[o]rdering with such awareness has to be regarded as accepting that crime’.57

Aiding and abetting ‘Aiding and abetting’ is the final form of participation listed in the common article on this subject in the three statutes. The terms are a rather classic common law formulation of the concept of complicity. ‘Aiding’ generally refers to some form of physical assistance in the commission of the crime, but of a ‘secondary’ nature, while ‘abetting’ suggests encouragement or another manifestation of moral suasion. Like many common law terms, ‘abetting’ is actually drawn from the old Norman French word abeˆter, meaning to incite or encourage. Obviously, ‘abetting’ has considerable overlaps with other concepts of participation spelled out in the statutes, namely ‘inciting’ and ‘ordering’, as well as ‘direct and public incitement to commit genocide’. According to an ICTY Trial Chamber, ‘[t]he concept of direct individual criminal responsibility and personal culpability for assisting, aiding and

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Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 483. Contra: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 388. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 223–224. See the discussion of superior responsibility, below at pp. 314–325. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 445. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 281. Ibid., para. 282. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 42.

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abetting, or participating in, in contrast to the direct commission of, a criminal endeavour or act . . . has a basis in customary international law’.58 The authorities suggest that the contribution of the accomplice must meet a qualitative and quantitative threshold. The ICTY Prosecutor has argued that ‘any assistance, even as little as being involved in the operation of one of the camps’, constitutes suYcient participation to meet the terms of complicity. ‘[T]he most marginal act of assistance’ can constitute complicity, pleaded the Prosecutor.59 But the tribunals have viewed the matter otherwise, saying that criminal participation must have a direct and substantial eVect on the commission of the oVence.60 Endorsing the views of the International Law Commission, an ICTY Trial Chamber has said that while the latter provided no definition of ‘substantially’, the case law requires ‘a contribution that in fact has an eVect on the commission of the crime’.61 The Trial Chamber suggested that participation is substantial if ‘the criminal act most probably would not have occurred in the same way had not someone acted in the role that the accused in fact assumed’.62 In Kvocˇka, the ICTY Appeals Chamber said it considered that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the eVect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons.63 58 59 60

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Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 666. Ibid., para. 671. Ibid., paras. 691, 692. Also: Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 326; Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 223, 234; Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, para. 61; Kayishema et al. (ICTR-951-A), Judgment (Reasons), 1 June 2001, paras. 186, 199; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 601; Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 70; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 43; Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 787; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 33; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 379. The International Law Commission required that accomplices participate ‘directly and substantially’ in the commission of the crime. In addition, the commentary to the draft Code noted that ‘the accomplice must provide the kind of assistance which contributes directly and substantially to the commission of the crime, for example by providing the means which enable the perpetrator to commit the crime. Thus, the form of participation of an accomplice must entail assistance which facilitates the commission of a crime in some significant way’: ‘Report of the International Law Commission on the Work of its Forty-eighth Session, 6 May–26 July 1996’, UN Doc. A/51/10, p. 24. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 688. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 90.

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But ‘assistance need not constitute an indispensable element, that is, a conditio sine qua non for the acts of the principal’.64 An isolated case says there is no requirement for proof that the conduct of the aider and abettor had a causal eVect on the act of the principal perpetrator,65 but this seems hard to reconcile with the requirement of a ‘substantial eVect’ which is found in several of the decisions. Interestingly, the Rome Statute does not provide any indication as to whether there is some quantitative degree of aiding and abetting required to constitute the actus reus of complicity.66 The absence of words like ‘substantial’ in the Rome Statute, and the failure to follow the International Law Commission draft, may imply that the Diplomatic Conference meant to reject the higher threshold of the recent case law of The Hague. Aiding and abetting requires proof that another person has committed the underlying or predicate crime.67 However, the other person need not be charged or convicted for the liability of the accomplice to be established. In some cases, prosecution may be quite impossible, because the principal oVender is dead or has disappeared, or because the principal oVender is unfit to stand trial, or is too young, or is immune from process. As the ICTR has noted, ‘[a]s far as the Chamber is aware, all criminal systems provide that an accomplice may also be tried, even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, guilt could not be proven’.68 Like ‘instigating’, the crime of ‘aiding and abetting’ may be committed by omission as well as by act.69 Mere presence at the scene of a crime is not enough to establish guilt, unless it can be shown that this had a significant and encouraging eVect on the principal oVender.70 On the other hand, the aider 64

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Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 209; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 33. But see Bagilishema (ICTR-95-1AT), Separate and Dissenting Opinon of Judge Mehmet Gu¨ney, 7 June 2001. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 285. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 25(3)(c). Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 561; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 527, 530; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 171, 172; Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 638. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 530. Also: Musema (ICTR96-13-T), Judgment and Sentence, 27 January 2000, para. 174. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 70. In a recent decision, however, the Appeals Chamber decided to ‘leave . . . open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting’ (Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 47). Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 70; Aleksovski (IT-95-14/1T), Judgment, 25 June 1999, paras. 64–65; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 284.

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and abettor need not be physically present when the underlying crime is committed, and that a ‘relevant act of assistance may be geographically and temporally unconnected to the actual commission of the oVence’.71 According to the ICTY Appeals Chamber, assistance may occur not only before or during the commission of the crime itself, but also after.72 It is rather bold to extend almost automatically the concept of aiding and abetting to ‘complicity after the fact’. National legal systems generally govern this concept with distinct rules and separate provisions. The International Law Commission debated whether or not to supply an explicit recognition of complicity after the fact in the Code of Crimes,73 but did not include any such provision. The issue has arisen only rarely. In Blagojevic´, the Prosecutor argued that the reburial of victims of the Srebrenica massacre constituted complicity (aiding and abetting) after the crime had been committed. The ICTY Trial Chamber said that ‘[i]t is required for ex post facto aiding and abetting that at the time of the planning, preparation or execution of the crime, a prior agreement exists between the principal and the person who subsequently aids and abets in the commission of the crime’.74 Probably the most important diYculty of interpretation resulting from the overlapping provisions of the general article on criminal participation and some of the more specific references concerns ‘complicity in genocide’, set out in paragraph 3(e) of the genocide provisions in the ICTY and ICTR statutes. Aside from ‘committing’, all of the other terms describing participation in article 7(1) of the ICTY Statute and article 6(1) of the ICTR Statute fit within the general concept of ‘complicity’. But some ICTR Trial Chambers have claimed there is a distinction between ‘aiding and abetting’ in genocide and ‘complicity’, which is in the genocide provision alone. The ICTR said that there are three forms of ‘complicity’ in ‘civil law systems’: complicity by instigation, complicity by aiding and abetting, and complicity

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Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 43. Also Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 125; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 484; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 33; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 200. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 48. Also: Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 285; Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, para. 62. Other judgments speak of assistance ‘before or during’ and make no reference to after. See, e.g., Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 385. ‘Eighth Report on the Draft Code of Crimes against the Peace and Security of Mankind, by Mr Doudou Thiam, Special Rapporteur’, UN Doc. A/CN.4/430 and Add.1, paras. 28– 38, pp. 31–32; ‘Report of the International Law Commission on the Work of its Fortyseventh Session, 2 May–21 July 1995’, UN Doc. A/50/10, para. 50. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 731.

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by procuring.75 It added that in Rwandan law there are two additional forms of complicity, namely, incitement through speeches and harbouring or aiding a criminal. Given the absence of a definition of complicity in the ICTR Statute, an ICTR Trial Chamber said it would follow the approach of the Rwandan Penal Code.76 The reasoning is all a bit contrived, and it seems quite illogical to conclude that the Security Council meant to create two competing versions of complicity within the same Statute. The argument that article 4(3) (e) is a kind of lex specialis that trumps article 6(1) is similarly unviable, because article 6(1) specifically states that it applies to article 4. As one ICTY Trial Chamber warned, ‘the provisions of the Statute do not form a coherent closed system of norms. In contrast to what may normally be assumed in the context of national codification of substantive criminal law norms, the norms laid down in Articles 2 to 5 must be interpreted against their own specific historical and contextual background. It follows that the Trial Chamber needs to exercise great caution in applying any systematic interpretation or a contrario reasoning that might normally follow from the interpretation of national codification of law.’77 The Appeals Chamber now appears to have settled the debate, holding that there is no distinction between complicity in genocide and aiding and abetting genocide.78 The nature of the mens rea should diVer somewhat depending upon whether the participation involves aiding or whether it involves abetting. In the case of aiding, the accomplice will often be responsible for a neutral or ambiguous act – for example, procuring insecticide, which might be used to exterminate pests in a labour camp, but which also might be used for gas chambers in an extermination camp.79 In such cases, the Prosecutor will have diYculty convincing judges that the accomplice intended the consequences 75

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It proposes more detailed definitions of some of these terms: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 536. Thus, ‘complicity by procuring means, such as weapons, instruments or any other means, used to commit genocide, with the accomplice knowing that such means would be used for such a purpose; complicity by knowingly aiding or abetting a perpetrator of a genocide in the planning or enabling acts thereof; complicity by instigation, for which a person is liable who, though not directly participating in the crime of genocide crime, gave instructions to commit genocide, through gifts, promises, threats, abuse of authority or power, machinations or culpable artifice, or who directly incited to commit genocide’. The Rwandan Penal Code was adopted in 1977, but is modelled on the nineteenthcentury codes of France and Belgium. See: William A. Schabas and Martin Imbleau, Introduction to Rwandan Law, Cowansville, Quebec: Editions Yvon Blais, 1998. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 413. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 500. The example, of course, is drawn from the famous ‘Zyklon B Case’, involving the suppliers to the Auschwitz camp: United Kingdom v. Tesch et al., (1947) 1 LRTWC 93 (British Military Court).

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of his or her acts, because two or more hypotheses may exist. Other evidence of mens rea, generally the knowledge by the accomplice of the acts being carried out by the principal perpetrator, will be necessary in order to establish guilt. The Appeals Chamber has stated: ‘[A]n individual who aids and abets other individuals committing a specific intent oVence may be held responsible if he assists the commission of the crime knowing the intent behind the crime.’80 In the case of abetting, proof of the mens rea should be much easier to establish, as it will appear almost inherently within the evidence of encouragement, ordering, inciting or moral suasion. The act of abetting is carried out by words or other manifestations of the opinions of the abettor, and these should be enough to betray the guilty mind of the accomplice. When Akayesu stood at the door of the cultural centre in Taba and told the interahamwe ‘[n]ever ask me again what a Tutsi woman tastes like’,81 he provided a revealing and incontrovertible insight into his own guilty mind. The case law is replete with references to the idea that the aider and abettor (and the ‘accomplice’, in the case of genocide) need not ‘share’ the mens rea of the principal perpetrator.82 It has led to the questionable conclusion that a person may be convicted of being an accomplice to genocide even though that person lacks the intent to commit genocide.83 But if the aider or abettor has knowledge that the principal perpetrator intends to commit genocide, the aider and abettor has the guilty mind of a ge´nocidaire. On this point, the judgments seem to confuse motive and intent, although the diVerences of opinion among judges may be explained by diVering approaches. The manufacturer who provides Zyklon B to the operators of a camp knowing that they are using it to exterminate members of a national, ethnic, racial or religious group, intends to commit genocide, even if his or her motive is merely to make a profit on sales of insecticide. Some judgments have 80

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Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 500; Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 142; Tadic´ (IT-941-A), Judgment, 15 July 1999, para. 229. Also: Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 71; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 286; Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 245, 249; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 32. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 150. Ibid., para. 538; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 388; Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 499; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 162; Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 245; Vasiljevic´ (IT-9832-T), Judgment, 29 November 2002, para. 71. Similarly, with respect to persecution, Krnojelac (IT-97-25-A), Judgment, 17 September 2003, paras. 51–52; Blagojevic´ (IT-0260-T), Judgment, 17 January 2005, para. 727. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 500.

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attempted to explain the distinction in another way, stating that when the accomplice ‘shares’ the intent of the principal perpetrator, he or she becomes a ‘co-perpetrator’.84 But this does not assist in establishing the criminal liability of someone who has not actually perpetrated a criminal act. The ‘accomplice’ who actually commits a criminal act has graduated to the category of ‘co-perpetrator’, but has not done so before. Some of the judgments suggest that the aider and abettor need only have ‘accepted that such would be a possible and foreseeable consequence of his conduct’.85 This, too, is an imprecise formulation of the law. The aider need have knowledge of the intent of the principal perpetrator, and that the assistance provided would have a substantial eVect with respect to perpetration of the criminal act. An ICTR Trial Chamber in Akeyesu stated this better: ‘[T]he forms of participation referred to in Article 6(1), cannot render their perpetrator criminally liable where he did not act knowingly, and even where he should have had such knowledge.’86 For example, the ‘approving spectator’, who through authoritative position in the community abets and encourages the behaviour of the perpetrators, ‘must know that his presence would be seen by the perpetrator of the crime as encouragement or support. The requisite mens rea may be established from the circumstances including prior like behaviour, failure to punish, or verbal encouragement’.87 Cases where the ‘accomplice’ is not proven to have genuine subjective knowledge of the intent of the principal perpetrator are dealt with under the heading of ‘joint criminal enterprise’, where only an objective knowledge test is applied.88 Is the guilt of the ‘aider and abettor’ less severe than that of the ‘coperpetrator’? In Vasiljevic´, the ICTY Appeals Chamber modified the judgment at trial and found the accused guilty as an aider and abettor rather than a coperpetrator. It said ‘aiding and abetting is a form of responsibility which generally warrants a lower sentence than is appropriate to responsibility as a co-perpetrator’. In that case, it reduced a sentence of twenty years to fifteen years because of the lesser gravity of aiding and abetting.89 Along the same lines, ‘the acts of a participant in a joint criminal enterprise are more serious than those of an aider and abettor since a participant in a joint criminal

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Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 118; Kvocˇka et al. (IT-98-30/ 1-T), Judgment, 2 November 2001, paras. 284–285. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 286; Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 255, 309, 311. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 479. Also: Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 198. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 389. See below at pp. 309–314. Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 182. Also: Kvocˇka et al. (IT98-30/1-A), Judgment, 28 February 2005, para. 204.

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enterprise shares the intent of the principal oVender whereas an aider and abettor need only be aware of that intent’.90

Joint criminal enterprise In the large interpretation of article 7(1) advanced in the Tadic´ appeal judgment, the ICTY Appeals Chamber said that ‘international criminal responsibility embraces actions perpetrated by a collectivity of persons in furtherance of a common criminal design’.91 This reasoning justified the recognition of an implied form of participation or complicity not explicitly set out in the text of the provision itself, sometimes described as ‘common purpose’ or ‘common design’, and now commonly known as ‘joint criminal enterprise’ (or simply ‘JCE’, to Tribunal insiders).92 It is distinct from aiding and abetting, in that there is no requirement that the accomplice actually have knowledge of the intent of the principal perpetrator. The accomplice must share a ‘common purpose’ of a criminal nature with the principal perpetrator, and the acts of the principal perpetrator must be a natural and foreseeable consequence of the common purpose. This judge-made concept, whose existence is explained with reference to customary international law, has provided the Prosecutor with a powerful tool to address crimes committed by groups and organisations, where proof of the individual mens rea of specific acts is not always easy to establish.93 The common article dealing with general principles does not specifically refer to joint criminal enterprise, or to the cognate concept of ‘common purpose’ complicity. Nevertheless, the Appeals Chamber has held that this is ‘implicit’ in the ICTY Statute and, moreover, that it was recognised as part of customary international law as early as 1992. The ICTY Appeals Chamber has supported this conclusion with reference to post-Second World War case law, and to article 25(3)(d) of the Rome Statute of the International Criminal Court, as well as to the provision on which it is based, article 2(3)(c) of the International Convention for the Suppression of Terrorist Bombings. 90 91 92

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Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 75. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 193. The concept was endorsed by the Appeals Chamber in Tadic´, but was actually summarily developed in an earlier Trial Chamber judgment: Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 210–216. Similarly, an ICTR Trial Chamber had written, in Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 203–205, that the members of a criminal group ‘would be responsible for the result of any acts done in furtherance of the common design where such furtherance would be probable from those acts’. Allison Marston Danner and Jenny S. Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law’, (2005) 93 California Law Review 77, at pp. 102–112, 131–146.

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‘Common purpose’ complicity is also widely accepted in national justice systems.94 In the Tadic´ appeal judgment, the ICTY Appeals Chamber noted that often ‘collective criminality’ will involve situations where all co-defendants, acting pursuant to a common design, possess the same criminal intention. There are, however, atrocities where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the eVecting of that common purpose. An example of this would be a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to eVect ‘ethnic cleansing’) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common design, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians. Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indiVerent to that risk.95

The Appeals Chamber has described this as the ‘extended’ form of joint criminal enterprise liability.96 Tadic´ found authority for three categories of joint criminal enterprise liability. The first category involves cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention.97 The second category is similar to the first category, with the common purpose being applied ‘to instances where the oVences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps’.98 In both the first and second categories, the participant must actually have the criminal intent to commit the actual crime. Only in the third category, sometimes called the ‘extended form’ of joint criminal enterprise, is it required that the act be a foreseeable consequence of eVecting the common purpose, which is an essentially objective standard of knowledge. In other words, the third category allows the conviction of

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Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 29; Milutinovic´ et al. (IT99-37-AR72), Decision on Draguljob Ojdanic´’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, paras. 19–20. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 204. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 465. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 196. Ibid., para. 202.

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an individual who did not actually intend the crime to be committed or have actual knowledge that his or her accomplices would commit it. Recognition of ‘joint criminal enterprise’ prompted a dramatic alteration in the approach of the Prosecutor. Existing indictments were amended in order to incorporate the new theory. It has seemed particularly helpful in prosecuting leaders for a broad range of acts committed by participants with whom there is, in practice, no real ‘agreement’ to commit a crime, although here the case law is unresolved.99 The ICTR has moved rather more slowly with respect to the joint criminal enterprise theory of liability. Indeed, one Trial Chamber refused to convict on the basis of joint criminal enterprise,100 while another denied an amendment that specifically alleged joint criminal enterprise.101 In some cases, the Prosecutor has not made joint criminal enterprise a live issue at trial (and has therefore failed in attempts to invoke joint criminal enterprise on appeal).102 Inevitably, on appeal, the Appeals Chamber said: ‘Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute.’103 From the outset, the SCSL Prosecutor has invoked the joint criminal enterprise theory as a basis of criminal responsibility.104 The common purpose itself must be criminal in nature. There can obviously be no criminal liability imposed upon an individual for the acts of members of a group with which he or she is associated if the purpose itself is innocent. The Appeals Chamber has specified that the common criminal purpose must involve perpetration of a crime within the jurisdiction of the Tribunal, rather than simply any serious crime.105 This language is consistent with the formulation of joint criminal enterprise in the Rome Statute. The 99

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Brdanin (IT-99-36-T), Judgment, 1 September 2004, paras. 354–355. See: Thomas Blumenstock, ‘The Judgment of the International Criminal Tribunal for the Former Yugoslavia in the Brdanin Case’, (2005) 18 Leiden Journal of International Law 65, at pp. 70–73. Gacumbitsi (ICTR-2001-64-T), Judgment, 17 June 2004, para. 289. Karemera et al. (ICTR-98-44-T), Decision Denying Leave to File an Amended Indictment, 8 October 2003. Reversed: Karemera et al. (ICTR-98-44-AR73), Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October Denying Leave to File an Amended Indictment, 19 December 2003. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, paras. 467–484. Ibid., para. 468. Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, paras. 33–34; Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, paras. 36–37. Also: Taylor (SCSL-03-01-I), Indictment, 3 March 2003, paras. 23–24. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 227.ii.

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common purpose in Tadic´ was ‘a policy to commit inhumane acts against the non-Serb civilian population of the territory in the attempt to achieve the creation of a Greater Serbia’,106 namely ‘to rid the Prijedor region of the nonSerb population, by committing inhumane acts’.107 In another case, dealing with the Omarska concentration camp, an ICTY Trial Chamber said that ‘[t]he joint criminal enterprise pervading the camp was the intent to persecute and subjugate non-Serb detainees’.108 In the Limaj case, whose defendants are associated with the Kosovo Liberation Army, the alleged joint criminal enterprise ‘was to target Serb civilians and perceived Albanian collaborators for intimidation, imprisonment, violence, and murder in violation of Articles 3 and 5 of the Statute of the Tribunal’.109 Milosˇevic´ is charged with participation in a joint criminal enterprise aimed at ‘the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province of Kosovo in an eVort to ensure continued Serbian control over the province’.110 The SCSL indictments charge participation in a joint criminal enterprise, but the common purpose is not a crime within the jurisdiction of the Court. Two of the consolidated indictments allege a joint criminal enterprise that included ‘gaining and exercising control over the population of Sierra Leone in order to prevent or minimize resistance to their geographic control, and to use members of the population to provide support to the members of the joint criminal enterprise’. The objective was ‘to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas’.111 The third consolidated indictment speaks of a ‘plan, purpose or design’ but does not employ the expression ‘joint criminal enterprise’, presumably because the Prosecutor does not consider the objective of defeating the rebel groups and gaining and exercising control over the territory of Sierra Leone to be a ‘criminal enterprise’.112 The suggestion seems rather close to a just war theory, by which rebels are inherently part of a joint criminal enterprise whereas those who defend entrenched authority are not. The Court has not yet had occasion to pronounce itself on the suYciency of the indictments with respect to joint criminal enterprise. Joint criminal enterprise liability requires a ‘plurality’ of persons (that is, two or more persons), although they need not be organised in a military, political or administrative structure, combined with evidence of the existence

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107 Ibid., para. 230. Ibid., para. 231. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 320. Limaj et al. (IT-03-66-PT), Second Amended Indictment, 6 November 2003, para. 6. Milosˇevic´ et al. (IT-99-37-PT), Second Amended Indictment, 16 October 2001, para. 16. Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, paras. 33–34; Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, paras. 36–37. Also: Taylor (SCSL-03-01-I), Indictment, 3 March 2003, paras. 23–24. Norman et al. (SCSL-03-14-I), Indictment, 4 February 2004, para. 19.

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of a common plan, design or purpose which amounts to or involves the commission of a crime. To the extent that the accused contributes significantly113 or substantially114 to the plan, design or purpose, with knowledge of the plan, design or purpose,115 even as an accomplice and without personally committing a prohibited act,116 then he or she can be found guilty of all crimes committed as a ‘foreseeable’ or ‘predictable’ consequence. The arrangement or understanding that constitutes the common design or purpose need not be express; it can be unspoken, and may be inferred from the circumstances.117 Where the joint criminal enterprise requires proof of some additional element, such as the discriminatory intent or motive component of the crime against humanity of persecution, this too must be established with respect to the accused and not just the principal perpetrator.118 A few decisions at the Trial Chamber level have held that it is simply impossible to reconcile the concept of joint criminal enterprise liability with the specific intent of genocide,119 but the Appeals Chamber has overturned these findings.120 Nevertheless, joint criminal enterprise does involve a diluted form of mens rea and is arguably an exception to the general rule requiring proof of intent and knowledge. The Appeals Chamber has conceded that some national criminal justice systems have rejected or restrained the concept of joint criminal enterprise for precisely this reason.121 Unlike aiding and abetting, where a ‘substantial’ contribution to the crime committed by the principal perpetrator is required,122 joint criminal enterprise imposes no such requirement. The ICTY Appeals Chamber has said there may be cases where this is part of the actus reus, but that they constitute the exception. Moreover, ‘[i]n practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose’.123

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Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 309, 311; Simic´ et al. (IT-95-9-T), Judgment, 17 October 2003, para. 28. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 289. Ibid., para. 312. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 67. Ibid., para. 66. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 288. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 530; Brdanin (IT-99-36-T), Decision on Motion for Acquittal Pursuant to Rule 98bis, 28 November 2003, para. 57. Brdanin (IT-99-36-A), Decision on Interlocutory Appeal, 19 March 2004; Rwamakubo (ICTR-98-44-AR72.4), Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 265, fn. 288, referring to the Supreme Court of Canada in R v. Logan, [1990] 2 SCR 731 and R v. Rodney [1990] 2 SCR 687. See above at pp. 302–305. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 97.

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There has been disagreement about whether it is really appropriate to describe joint criminal enterprise liability as a form of secondary participation or complicity rather than as co-perpetration. In Krstic´, an ICTY Trial Chamber held that the relevant portions of the Tadic´ appeal judgment setting out the principles of joint criminal enterprise liability were obiter dicta: [T]his Trial Chamber sees no basis for refusing to accord the status of a coperpetrator to a member of a joint genocidal enterprise whose participation is of an extremely significant nature and at the leadership level . . . It seems clear that ‘accomplice liability’ denotes a secondary form of participation which stands in contrast to the responsibility of the direct or principal perpetrators. The Trial Chamber is of the view that this distinction coincides with that between ‘genocide’ and ‘complicity in genocide’ in Article 4(3). The question comes down to whether . . . a participant in the criminal enterprise may be most accurately characterised as a direct or principal perpetrator or as a secondary figure in the traditional role of an accomplice.124

Another ICTY Trial Chamber rejected this distinction, and endorsed the approach of the Appeals Chamber.125 The matter has since been settled by the Appeals Chamber, which held unequivocally that joint criminal enterprise liability is to be regarded as a form of ‘commission’ rather than as a form of accomplice liability.126 Some judges seem more comfortable with characterising joint criminal enterprise as a form of commission, or co-perpetration, as it ‘avoids the misleading impression that a new crime not foreseen in the Statute of this Tribunal has been introduced through the backdoor’.127

Superior responsibility Superior responsibility is set out in a distinct paragraph of the common general principles provision in the three statutes. The fact that any act within the jurisdiction of the tribunals ‘was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof ’.128

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Krstic´ (IT-98-33-T), Judgment, 2 August 2001, paras. 642–643. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 75–77. Milutinovic´ et al. (IT-99-37-AR72), Decision on Draguljob Ojdanic´’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 20; Krnojelac (IT-9725-T), Judgment, 15 March 2002, para. 73. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 441 (reference omitted). ICTY Statute, art. 7(3); ICTR Statute, art. 6(3); SCSL Statute, art. 6(3). The version in the ICTY Statute uses only the masculine pronouns.

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There are three elements of liability on the basis of superior responsibility: a superior–subordinate relationship; knowledge of the superior (‘knew or had reason to know’) that his or her subordinate had committed or was about to commit the crime; and failure of the superior to prevent the commission of the crime or to punish the perpetrators.129 The notion that military commanders are criminally liable for the acts of their subordinates, even where it cannot be proven that they had knowledge of these acts, was established in controversial rulings in post-Second World War trials.130 The concept of command responsibility was later recognised as a positive legal norm in the case of prosecutions for grave breaches of Additional Protocol I to the Geneva Conventions.131 In addition to its recognition in the statutes of the three ad hoc tribunals, superior responsibility liability is also incorporated into the Rome Statute of the International Criminal Court.132 In national law, while vicarious liability is well accepted at the level of private law (e.g., the responsibility of parents for acts of their minor children), it is a rare occurrence indeed in national criminal legislation. Superior responsibility, as defined in the statutes of the ad hoc tribunals, is presented as a form of participation by a superior in an act committed by another person, a subordinate. To this extent it resembles complicity, be it in the form of aiding and abetting or joint criminal enterprise. Unlike aiding and abetting, however, there is no requirement that the superior knew of the acts of the principal perpetrator. Unlike joint criminal enterprise, there is no requirement of a plan or common purpose, let alone knowledge of such a plan by the superior. Although these observations might suggest it is easier to obtain a conviction under superior responsibility, the requirement of a superior–subordinate relationship, something that has no place in complicity liability, should not be overlooked. In the early years of the tribunals, superior responsibility was presented as the Prosecutor’s silver bullet,133 but in practice 129

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Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 401; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 294; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 346; Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 457. United States of America v. Yamashita, (1948) 4 LRTWC 1, pp. 36–37; In re Yamashita, 327 US 1 (1945); Canada v. Meyer, (1948) 4 LRTWC 98 (Canadian Military Court). Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, art. 86(2). Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 28. It was a source of endless fascination for commentators, generating an enormous literature: Ilias Bantekas, ‘The Contemporary Law of Superior Responsibility’, (1999) 93 American Journal of International Law 573; Sonja Boelaert-Suominen, ‘Prosecuting Superiors for Crimes Committed by Subordinates: A Discussion of the First Significant Case Law Since the Second World War’, (2001) 41 Virginia Journal of International Law 747; Ann B. Ching, ‘Evolution of the Command Responsibility Doctrine in Light of the ˇ elebic´i (Prosecutor v. Delalic´, Case No. IT-96-21 (ICTY Nov. 16, 1998)) Decision of C the International Criminal Tribunal for the Former Yugoslavia’, (1999) 25 North

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it has had little in the way of concrete results. Although there have been several convictions on the basis of superior responsibility by both the ICTY and the ICTR, all of these, with one exception, have involved oVenders who were also convicted as either principal perpetrators or accomplices.134 One ICTY Trial Chamber has even described the superior responsibility inquiry as ‘a waste of judicial resources’ in cases where liability as a principal perpetrator or accomplice has already been established.135 In most cases, evidence that a superior ‘had reason to know’ of the acts of the principal perpetrator has been superfluous, given the existence of evidence that the commander actually knew, in which case guilt is established as a full-blown accomplice or co-perpetrator. Otherwise, the joint criminal enterprise theory oVers many

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Carolina Journal of International Law and Commercial Regulation 167; Christopher N. Crowe, ‘Command Responsibility in the Former Yugoslavia: The Chances for Successful Prosecution’, (1994) 29 University of Richmond Law Review 191; Mirjan Damaska, ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law 455; Kirsten M. F. Keith, ‘The Mens Rea of Superior Responsibility as Developed by ICTY Jurisprudence’, (2001)14 Leiden Journal of International Law 617; Howard S. Levie, ‘Command Responsibility’, (1997–98) 8 Journal of Legal Studies 1; Matthew Lippman, ‘Humanitarian Law: The Uncertain Contours of Command Responsibility’, (2001) 9 Tulsa Journal of Comparative and International Law 1; Matthew Lippman, ‘The Evolution and Scope of Command Responsibility’, (2000) 13 Leiden Journal of International Law 145; A. D. Mitchell, ‘Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes’, (2000) 22 Sydney Law Review 381; Daryl A. Mundis, ‘Crimes of the Commander: Superior Responsibility under Article 7(3) of the ICTY Statute’, in Gideon Boas and William A. Schabas, eds., International Criminal Developments in the Case Law of the ICTY, The Hague: Martinus NijhoV, 2003, pp. 239–276; Danesh Sarooshi, ‘Command Responsibility and the Blasˇkic´ Case’, (2001) 50 International and Comparative Law Quarterly 452; Olivia Q. SwaakGoldman, ‘International Criminal Tribunal for the Former Yugoslavia – Command Responsibility – Multiple Defendants – Rape constituting Torture as Grave Breach of 1949 Geneva Conventions and Violation of Laws or Customs of War – Characterization of Conflict in Bosnia and Herzegovina’, (1999) 93 American Journal of International Law 514; Jamie A. Williamson, ‘Command Responsibility in the Case Law of the International Criminal Tribunal for Rwanda’, (2002) 13 Criminal Law Forum 365; Alexander Zahar, ‘Command Responsibility of Civilian Superiors for Genocide’, (2001) 14 Leiden Journal of International Law 591. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001 (with respect to Kordic´; Cˇerkez was acquitted of charges based on art. 7(3)); Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998 (with respect to Mucic´; Delalic´ and Delic´ were acquitted of charges based on art. 7(3)); Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 495 (subsequently acquitted on appeal with respect to art. 7(3)); Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000; Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001 (the four defendants charged under art. 7(3) were all acquitted, although convicted on the basis of art. 7(1)); Krnojelac (IT-97-25-T), Judgment, 15 March 2002. The ICTR cases almost invariably reflect a confusion between liability based on article 6(1) and 6(3), and impose the multiple findings of guilt that the ICTY Appeals Chamber has subsequently declared to be an error of law. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 466.

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of the same advantages to the Prosecutor but without the need to establish the superior–subordinate relationship. The exception is Strugar, in which the accused, a Lieutenant-General in the Yugoslav People’s Army (JNA), was charged with respect to a military campaign in and around Dubrovnik, in Croatia, in late 1991. The Prosecutor contended that there was suYcient circumstantial evidence to prove that General Strugar had actually ordered the commission of war crimes,136 but the Trial Chamber did not concur.137 The evidence showed that General Strugar had ordered an attack on Srd, apparently a military target, but not on the neighbouring Old Town of Dubrovnik. Nevertheless, it was clearly established that JNA artillery ‘came to fire on Dubrovnik, including the Old Town, without regard to military targets, and did so deliberately, indiscriminately and extensively over a prolonged time’.138 The Trial Chamber did not even consider that there was a ‘substantial likelihood’ that Strugar could expect his troops to shell the Old Town, closing the door on liability on the basis of a joint criminal enterprise. This assessment also ruled out the possibility that he ‘had reason to know’ that his troops might bombard the Old Town. However, as the attack unfolded, General Strugar learned of a protest from the European Commission Monitoring Mission about the shelling of the Old Town. According to the Trial Chamber, the risk that this was occurring was so real, and the implications were so serious, that the events concerning General Kadijevic´ ought to have sounded alarm bells to the Accused, such that at the least he saw the urgent need for reliable additional information, i.e. for investigation, to better assess the situation to determine whether the JNA artillery were in fact shelling Dubrovnik, especially the Old Town, and doing so without justification, i.e. so as to constitute criminal conduct.139

It should have been ‘starkly obvious’ to General Strugar that there was a need to make ‘an immediate and direct order to those commanding and leading the attacking forces, especially the artillery [about] the special status of the Old Town and the existing prohibitions on shelling it, and of the limitations or prohibition, if any, on shelling the Old Town’.140 Moreover, Strugar subsequently took no measures to ensure that the perpetrators were disciplined, although this was within his authority. Strugar represents a classic if exceedingly rare case of the eVective application of superior responsibility. Whether superior responsibility applied to non-international armed conflict breached the principle of legality has been argued before the ICTY.141

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137 Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 335. Ibid., para. 338. 139 140 Ibid., para. 345. Ibid., para. 418. Ibid., para. 423. There is ample authority for the proposition that superior responsibility in the context of international armed conflict is consistent with customary international law. See:

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There were some solid points in favour of the challenge, including the lack of a superior responsibility provision in Additional Protocol II corresponding to the one in Additional Protocol I and the relative absence of this form of liability in national criminal law. But the Appeals Chamber dismissed the motion.142 The inclusion of superior responsibility within the ICTR and SCSL statutes, as well as the Rome Statute of the International Criminal Court, testifies to its general acceptance by States and its solid claim to status as a norm of customary international law. The knowledge requirement is satisfied when it is proven that the superior either knew or had reason to know of the conduct of the principal perpetrator. Where the superior had real knowledge, it will often be more appropriate to deal with the case as one of full complicity or even co-perpetration. As one Trial Chamber noted, [I]n cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates’ crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes, the type of criminal responsibility incurred may be better characterised by Article 7(1). Where the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7(1).143

With respect to the more diYcult case, where it is conceded that convincing evidence of the superior’s knowledge is lacking, but that he or she nevertheless ‘had reason to know’, the ICTY Appeals Chamber has said that this condition should be interpreted with reference to article 86 of Additional Protocol I, where the standard is described in slightly diVerent words: ‘having information enabling them to conclude’. Thus, the Prosecutor must establish that the superior ‘had in his possession information of a nature, which at the least, would put him on notice of the risk of such oVences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his

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Kordic´ et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction Portions of the Amended Indictment Alleging ‘Failure to Punish’ Liability, 2 March 1999; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 209; Blasˇkic (IT-95-14-T), Judgment, 3 March 2000, para. 290; Krajisnik (IT00-39 & 40-PT), Judgment on Motion Challenging Jurisdiction – With Reasons, 22 September 2000, para. 24. The case law records one hesitant voice: Krajisnik (IT-00-39 & 40-PT), Separate Opinion of Judge Bennouna, 22 September 2000, para. 24. Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 371.

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subordinates’.144 The superior does not necessarily have a duty to seek out such information. According to the ICTY Appeals Chamber, ‘responsibility can be imposed for deliberately refraining from finding out but not for negligently failing to find out’.145 In making these determinations about what the superior knew or had reason to know, various criteria will be considered by the tribunals: the number, type and scope of illegal acts; the time during which they occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; their widespread occurrence; the tactical tempo of operations; the modus operandi of similar illegal acts; the oYcers and staV involved and the location of the commander at that time.146 The more distant the superior, in a physical sense, the more indicia will be required in order to establish knowledge.147 It is not necessary for the Prosecutor to establish a causal link between a commander’s failure to prevent subordinates’ crimes and the occurrence of the crimes.148 In some respects, superior responsibility takes the form of an autonomous oVence. In eVect, the culpable conduct of a person convicted on this basis, to the extent that the superior ‘had reason to know’ that the subordinate would commit or had committed genocide, crimes against humanity or war crimes and failed to act appropriately, is perhaps better characterised as a form of criminal negligence.149 Indeed, in incorporating superior responsibility into their national legal systems, this is what countries like Canada and Germany have done. They have acknowledged the conundrum of convicting a person for genocide, which requires the very specific intent to destroy a group, or of the crime against humanity of persecution, which requires evidence of a discriminatory intent or motive, based only on evidence that an individual ‘had reason to know’ of prohibited conduct. But the ad hoc tribunals have been very resistant to any suggestion that superior responsibility is merely an oVence of negligence. The ICTR Appeals Chamber has warned that ‘[r]eferences to ‘‘negligence’’ in the context of superior responsibility are likely to lead to confusion of thought’.150 144

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Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 241. Also: Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 383; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 46; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 405. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 406 (emphasis in original). Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 427, 437. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 72. Ibid., para. 77. Occasionally the judgments have used the word ‘negligence’ in applying the concept of superior responsibility. See, e.g., Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 217; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 332. Bagilishema (ICTR-95-1A-A), Judgment, 3 July 2002, para. 35. Also Blasˇkic´ (IT-95-14A), Judgment, 29 July 2004, para. 63.

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Similarly, judges at the tribunals have objected to the suggestion that superior responsibility is a form of strict liability, that is, a crime whose mental element need not be established by the Prosecutor, but where a defendant may rebut the presumption of culpable intent and knowledge by ˇ elebic´i, the ICTY Appeals Chamber invoking a defence of due diligence. In C said that superior responsibility was ‘ultimately predicated upon the power of the superior to control the acts of his subordinates’. It said a duty was placed on the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates. ‘[A] failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine’, said the Appeals Chamber.151 But these words only seem to confirm the fact that the superior is being punished for failure to supervise rather than for the oVence itself. Moreover, to the extent that the superior can demonstrate that he or she actually fulfilled the duty to prevent such crimes, we are indeed in the presence of a strict liability oVence, as this concept is generally understood in criminal law. There is divergent case law as to the application of the concept of superior responsibility to the crime of genocide. The 1948 Genocide Convention refers to ‘complicity’ in genocide, but there is no evidence that the drafters of that instrument ever contemplated liability on the basis of superior responsibility. The ICTY and ICTR statutes provide, nevertheless, that the crime of genocide can be committed by means of superior responsibility. This raises the issues of retroactivity. Moreover, there is a problem with respect to the mental element. Genocide requires a ‘specific intent’152 whereas this is manifestly not contemplated by superior responsibility. One ICTY Trial Chamber said that ‘[i]t follows from Article 4 and the unique nature of genocide that the dolus specialis is required for responsibility under Article 7(3) as well. The Trial Chamber notes the legal problems and the diYculty in proving genocide by way of an omission on the part of civilian leaders.’153 Another Trial Chamber, in a subsequent ruling, disagreed: As a matter of statutory interpretation, there is in the Trial Chamber’s view no inherent reason why, having verified that it applies to genocide, Article 7(3) should apply diVerently to the crime of genocide than to any other crime in the Statute. The Appeals Chamber has observed that superior criminal responsibility requires the Prosecution to establish that a superior knew or had reason to know of the criminality of subordinates. In the

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Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 197, 239. Also: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 369; Bagilishema (ICTR-95-1AT), Judgment, 7 June 2001, para. 44. Above at pp. 164–172. Stakic´ (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 92.

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case of genocide, this implies that the superior must have known or had reason to know of his or her subordinate’s specific intent, with all the evidentiary diYculties that follow. The Appeals Chamber has held that superior criminal responsibility is a form of criminal liability that does not require proof of intent to commit a crime on the part of a superior before criminal liability can attach. It is therefore necessary to distinguish between the mens rea required for the crimes perpetrated by the subordinates and that required for the superior . . . Thus, the Trial Chamber is satisfied that the mens rea required for superiors to be held responsible for genocide pursuant to Article 7(3) is that the superiors knew or had reason to know that their subordinates (1) were about to commit or had committed genocide and (2) that the subordinates possessed the requisite specific intent.154

Only superiors who are clearly part of a chain of command, either directly or indirectly, with the actual power to control or punish the acts of subordinates may incur criminal responsibility.155 The superior–subordinate relationship is a diYcult issue in conflicts like those in the former Yugoslavia, Rwanda and Sierra Leone, ‘where previously existing formal structures have broken down and where, during an interim period, the new, possibly improvised, control and command structures may be ambiguous and ill-defined’.156 It ‘may well be in disorder and primitive’.157 Precisely for this reason, the tribunals have concluded that control may be either de facto or de jure, but a de facto superior must be found to wield powers of control over subordinates that are substantially similar to those of a de jure superior in order to be convicted on the basis of superior responsibility.158 The actual superior– subordinate relationship need not be formalised, and it is enough for there to be ‘a tacit or implicit understanding between them as to their positioning vis-a`-vis one another’, even if this is only temporary.159 The superior– subordinate relationship can apply to both civilian and military commanders.160 On this basis, there have been convictions of the manager of a tea 154 155 156 157 158

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Brdanin (IT-99-36-T), Judgment, 1 September 2004, paras. 720–721. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 416. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 248–268. Ibid., para. 193. Ibid., para. 197. Also: Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 396; Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, para. 76; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 300; Bagilishema (ICTR-95-1AT), Judgment, 7 June 2001, para. 39; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 472. Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, paras. 397, 399. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 213–215, 227–228; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998; Kambanda (ICTR97-23-S), Judgment and Sentence, 4 September 1998; Serushago (ICTR-98-39), Sentence, 5 February 1999; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December

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factory for the failure to control his employees,161 the leader of an extremist political party for the acts of its members,162 and a manager of a radio station for the hate speech conveyed by its employees.163 But an ICTY Trial Chamber acquitted a political leader ‘with tremendous influence and power in Central Bosnia’, after noting that ‘great care must be taken in assessing the evidence to determine command responsibility in respect of civilians, lest an injustice is done’. In that case, it was not satisfied that the accused Cˇerkez had eVective control over subordinates.164 The case law is consistent to the eVect that control must be ‘eVective’, and the superior genuinely in a position to both prevent and punish those he or she is alleged to be commanding.165 Evidence that the accused had ‘substantial influence’ over subordinates is not enough.166 The final element is the failure of the superior to take necessary and reasonable measures to prevent or punish the acts of the subordinates. Prevent and punish are not alternatives, and a superior cannot escape responsibility for failure to prevent simply by subsequently punishing the subordinates.167 The measures that the superior is required to take must be those that are ‘within his material possibility’.168 Concerning the duty to punish, the Appeals Chamber has held that an accused cannot be charged on the basis of superior responsibility for crimes committed by a subordinate before the accused assumed command over that subordinate.169 As one Trial Chamber explained,

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2003, para. 976. Note, in comparison, the distinct treatment of these two categories in article 28 of the Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 141. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, paras. 976–977. Ibid., paras. 970–973. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 838–841. These remarks echo those of ICTR Trial Chamber I, in the very first application of superior responsibility by the ad hoc tribunals, describing superior responsibility with respect to civilians to be ‘contentious’. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 491. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 375; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 141; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 229–231; Ntakirutimana et al. (ICTR-9610 and ICTR-96-17-T), Judgment, 21 February 2003, para. 819. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 257–266, 300. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 336; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 444; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, paras. 47–50. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 417; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 395; Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 442. Hadzˇihasanovic´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 51. This

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‘[t]his duty includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself. Civilian superiors would be under similar obligations, depending upon the eVective powers exercised and whether they include an ability to require the competent authorities to take action.’170 In Blasˇkic´, the ICTY Appeals Chamber noted that the accused had denounced the crimes and requested an investigation into them, and that this amounted to ‘measures that were reasonable within his material ability’.171 The possibility that guilt is established with respect to an oVender as both a principal perpetrator or accomplice and on the basis of superior responsibility has led to problems. Decisions have varied, with guilty verdicts for both modes of liability being entered in some cases,172 whereas in others Trial Chambers have exercised their discretion and found the accused guilty with respect to the mode of liability that better characterised his or her participation,173 which is, inevitably, commission rather than superior responsibility. According to an early ICTY Appeals Chamber judgment, Trial Chambers had various options, including entering a conviction on the basis of both forms of liability.174 By 2005, the position of the ICTY Appeals Chamber had evolved, and it was instructing the Trial Chambers that ‘[w]here the legal requirements of both forms of responsibility are met, a conviction should be entered on the basis of Article 7(1) only, and the superior position should be taken into account as an aggravating factor in sentencing’.175 Certainly simultaneous convictions on both bases can lead to absurdities, as the Blasˇkic´ Trial Chamber noted: ‘[I]t would be illogical to hold a commander criminally responsible for planning, instigating or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing

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controversial finding has been criticised as amounting to an encouragement to make frequent changes in commanders so as to avoid any duty to prosecute. This seems a somewhat far-fetched charge, and on reflection probably extends the web of liability and the likelihood of prosecution. See also: Hadzˇihasanovic´ et al. (IT-01-47-AR72), Partial Dissenting Opinion of Judge Shahabuddeen, 16 July 2003. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 446. See: Christopher Greenwood, ‘Command Responsibility and the Hadzˇihasanovic´ Decision’, (2004) 2 Journal of International Criminal Justice 598. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 420. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 830–831, 836–837 and 842–843; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 744–754; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 210. Krstic´ (IT-98-33-T), Judgment, 2 August 2001; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 173; Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 466; Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 79, 81. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 745, including fn. 1261. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 104. See also: Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 285.

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them.’176 In Krstic´, an ICTY Trial Chamber said ‘that where a commander participates in the commission of a crime through his subordinates, by ‘‘planning’’, ‘‘instigating’’ or ‘‘ordering’ the commission of the crime, any responsibility under Article 7(3) is subsumed under Article 7(1)’.177 It should be borne in mind that the impetus to develop the concept of superior responsibility was to prevent situations of impunity when it was diYcult or impossible to establish guilt based on more traditional methods of liability. The fact that superior responsibility is not generally recognised in national legal systems is a further argument for treating this as a subsidiary mode of liability. In conclusion, superior responsibility has proven to be a big disappointment. It has generated an enormous burden on prosecutions, with corollary waste of resources by defence counsel and judges. Yet there is so little to show for it. Once the ICTY had developed the theory of joint criminal enterprise, it became apparent that it was easier to obtain convictions on that basis than under the doctrine of superior responsibility. Substantial amounts of judicial energy have been devoted to elaborating theoretically awkward and unsatisfactory explanations as to the applicability of superior responsibility to civilian ‘commanders’, to internal armed conflict and to crimes of specific intent like genocide and the crime against humanity of pesecution. None of this has been of any assistance in obtaining convictions, however. In each case, the oVender was convicted on the basis of commission, aiding and abetting or joint criminal enterprise. The one exception, the conviction of General Strugar, is the most traditional of paradigms: a military commander in an international armed conflict, whose liability arises with respect to methods of warfare. If the ICTYand ICTR had devoted less attention to command responsibility, they might already have fulfilled their mandates and completed their work.

Complicity in genocide The genocide provisions of the ICTY and ICTR statutes are unique in that they include a distinct list of punishable crimes that overlaps, to some extent, with the more general codification of forms of participation set out in articles 7(1) and 6(1) of the ICTYand ICTR statutes respectively. One of these is ‘complicity in genocide’. In Semanza, an ICTR Trial Chamber said that there is no material distinction between complicity in genocide and ‘the broad definition accorded to aiding and abetting’.178 The reader is referred to the discussion of these matters elsewhere in this volume.179 176 177 178

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Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 337. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 605 (emphasis in original). Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 394. Also: Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 531. Aiding and abetting, above at pp. 302–309; genocide, above at pp. 183–184.

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Defence, excuse and justification A defence is an answer to a criminal charge. It is used to denote ‘all grounds which, for one reason or another, hinder the sanctioning of an oVence – despite the fact that the oVence has fulfilled all definitional elements of a crime’.180 Terminology varies somewhat in this area. The Rome Statute speaks of ‘[g]rounds for excluding criminal responsibility’,181 whereas the International Law Commission opted for the term ‘defences’.182 Many legal systems distinguish between two categories of defence, namely, excuses and justifications.183 Professor George Fletcher has explained that: Claims of justification concede that the definition of the oVence is satisfied, but challenge whether the act is wrongful; claims of excuse concede the act is wrongful, but seek to avoid the attribution of the act to the author. A justification speaks to the rightness of the act; an excuse, to whether the actor is accountable for a concededly wrongful act.184

The common general principles provision in the statutes of the ad hoc tribunals addresses three defences, and in both cases the provision seeks to prohibit them. These are the defences of superior orders and of oYcial status. The only texts in any of the three statutes that actually authorise a defence are the war crimes provisions of the ICTY Statute, admitting a defence of ‘military necessity’ with regard to specific grave breaches and violations of the laws or customs of war. The silence of the statutes with respect to most defences does not mean, however, that they cannot be invoked. In his report to the Security Council on the draft ICTY Statute, the Secretary-General said that ‘[t]he International Tribunal itself will have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon general principles of law recognised by all nations’.185 As one ICTY Trial Chamber noted, defences ‘form part of the general principles of criminal law which the International Tribunal must take into account in deciding the cases before it’.186 Over the

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Albin Eser, ‘ ‘‘Defences’’ in War Crime Trials’, in Yoram Dinstein and Mala Tabory, eds., War Crimes in International Law, The Hague: Kluwer Law International, 1996, pp. 251– 273, at p. 251. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 31. ‘Report of the International Law Commission on the Work of its Forty-eighth Session 6 May–26 July 1996’, UN Doc. A/51/10, pp. 73–81, art. 14. Ibid., p. 74. George P. Fletcher, Re-thinking Criminal Law, Boston: Little, Brown, 1978, p. 759. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 58. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 449.

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years, they have developed a considerable body of case law concerning defences to charges of genocide, crimes against humanity and war crimes. To some extent, defences are also dealt with in the Rules of Procedure and Evidence. For example, Rule 96 circumscribes the defence of consent with respect to sexual assault charges. The Rules of Procedure and Evidence introduce the notion of ‘special defences’.187 Common Rule 67(A) gives two examples of special defences, ‘diminished or lack of mental responsibility’. Case law has also described alibi as a special defence.188 The Rules require a defendant to notify the Prosecutor of the intention to plead a special defence, including a duty to specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence. According to an ICTY Trial Chamber, ‘a special defence is one apart from the general defence open to accused persons and is peculiar to the accused in the circumstances of a given case. Accordingly, the facts relating to a special defence raised by the accused are those peculiarly within his knowledge and should be established by him.’189 The defence of lack of mental responsibility or insanity is one such defence, and the accused who invokes it is required to rebut a presumption of sanity. Thus, with special defences, a burden of proof generally lies with the defence. Moreover, it has been held that the defence must establish its claim on a balance of probabilities standard, rather than merely that of reasonable doubt, the standard that applies to ordinary defences.190 In significant contrast to the texts applicable to the ad hoc tribunals, the Rome Statute provides a relatively detailed codification of defences, including insanity, voluntary intoxication, duress and necessity, in addition to superior orders and oYcial status. Its provisions are certainly helpful to the tribunals in identifying applicable principles. It might even be said that there is a presumption that the codification of defences in the Rome Statute corresponds to customary international law. Nevertheless, the case law of the tribunals has not always been consistent with the provisions of the Rome Statute. Several of the specific defences are discussed here in greater detail, generally with examples drawn from the case law of the tribunals, and with reference to the text of the Rome Statute, where applicable. In addition, defendants often raise ‘procedural’ or ‘jurisdictional’ defences. But these do not concern matters that fall within ‘general principles’, and they are discussed in the sections of this study dealing with procedure and jurisdiction. 187

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ICTY RPE, Rule 67(A)(i)(b); ICTR RPE, Rule 67(A)(ii)(b); SCSL RPE, Rule 67 (A)(ii)(b). Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 12. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1158. Ibid., para. 1156.

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OYcial position and head of State immunity Paragraph 2 of the provision on general principles that is common to all three statutes states: ‘The oYcial position of any accused persons, whether as Head of State or Government or as a responsible government oYcial, shall not relieve such person of criminal responsibility nor mitigate punishment.’ The text is derived from article 7 of the Nuremberg Charter: ‘The oYcial position of defendants, whether as Heads of State or responsible oYcials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.’191 A provision to much the same eVect appears in the 1948 Genocide Convention.192 The Rome Statute addresses the issue in a rather more detailed text: This Statute shall apply equally to all persons without any distinction based on oYcial capacity. In particular, oYcial capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government oYcial shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.193

Obviously, the principle also applies to persons who hold de facto authority.194 The very first conviction at the ICTR involved the man who had been head of the interim government in Rwanda during much of the time while genocide was taking place. Jean Kambanda pleaded guilty, and of course therefore abandoned any argument based on oYcial capacity. The Tribunal treated his oYcial capacity as an aggravating factor.195 The most celebrated defendant at the ICTY, Slobodan Milosˇevic´, was the president of the Federal Republic of Yugoslavia at the time he was indicted. The same indictment also charged Milan Milutinovic´ who, as President of Serbia, was its head of State.196 In pre-trial motions, Milosˇevic´ argued that the Tribunal was without jurisdiction ‘by reason of his status as former President’. On the advice of the amici curiae the Trial Chamber took it as a challenge to the validity of article 7(3) of the ICTY Statute, although the judgment suggests that this was also viewed as raising the issue of immunity. Referring to a list of historical precedents, the Trial Chamber answered: ‘There is absolutely no 191

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Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 7. Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277, para. 4. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 27. Karadzˇic´ et al. (IT-95-5-R61 and IT-95-18-R61), Deferral, 16 May 1995. Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, para. 44. Milosˇevic´ et al. (IT-99-37-PT), Indictment, 22 May 1999.

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basis for challenging the validity of Article 7, paragraph 2, which at this time reflects a rule of customary international law.’197 The SCSL has also issued an indictment against a sitting head of State. Charles Taylor was president of Liberia when, on 7 March 2003, an indictment was issued against him. Some months later, Taylor resigned, and was granted asylum by the Government of Nigeria. Although Taylor has not surrendered and appeared before the Court, he challenged the right of the Court to prosecute him. Taylor’s argument was based on his alleged immunity. The issue of immunity from prosecution must be treated as distinct from that of the defence of oYcial capacity. That this is so can be seen in article 27 of the Rome Statute, with its two separate paragraphs, the first addressing the defence of oYcial status and the second the matter of head of State immunity. The statutes of the three tribunals contain no similar provision on the issue of head of State immunity. In Taylor, the SCSL Appeals Chamber approached the matter as a question of jurisdiction, rather than as a defence. Normally, a defence would not be raised in a preliminary challenge, but rather in answer to the evidence of the prosecution, whereas when a tribunal is without jurisdiction to prosecute, the issue is properly addressed before the trial begins. The definitive statement on immunities comes from a February 2002 ruling of the International Court of Justice. In that case, it was argued that article 7(2) of the ICTY Statute and article 6(2) of the ICTR Statute supported the existence of a rule of customary law applicable before national courts, but the Court rejected the suggestion.198 At the same time, it confirmed that both a former as well as an incumbent head of State could be subject to ‘certain international criminal courts, where they have jurisdiction’, giving as examples of such tribunals the ICTY and the ICTR.199 Treated summarily in the preliminary judgment in the Milosˇevic´ case, the issue of head of State immunity received somewhat greater attention by the SCSL in the Taylor case. As in Milosˇevic´, the judgment reflects some confusion between the defence of oYcial capacity and the jurisdictional issue of immunities. Thus, after reviewing the International Court of Justice opinion concerning immunity, the SCSL Appeals Chamber concluded that there was no peremptory norm contrary to article 6(2) of the Statute, the provision dealing with the defence of oYcial capacity.200 The Court applied the

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Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras. 26–34. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, para. 58. Ibid., para. 61. Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, paras. 43–53.

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principle set out by the International Court of Justice after implicitly assuming that the expression ‘certain international criminal courts, where they have jurisdiction’ was equivalent to ‘international tribunals’ in general. In fact, there is a distinction between the SCSL and the other two ad hoc tribunals in terms of their creation. It is at least arguable that the treaty-based establishment of the SCSL means the rule denying immunity to a head of State might not apply with respect to third States. The same reasoning would apply to article 27 of the Rome Statute, which may explain why the International Court of Justice used the phrase ‘where they have jurisdiction’. In other words, if heads of State benefit from immunity before the courts of other States, can other States join together by treaty and create a court that denies such immunity? They would be doing jointly what they cannot do individually. According to such reasoning, article 6(2) of the SCSL Statute would apply to State oYcials of Sierra Leone but not to those of other States. This certainly explains why the judges of the SCSL have been so anxious to anchor their existence in the Security Council Resolution directing the Secretary-General to establish the Court, rather than in the actual treaty that creates it. Perhaps it is also significant that the International Court of Justice did not mention the Special Court for Sierra Leone alongside its reference to the ICTY and the ICTR. The SCSL was established about a month prior to the ruling of the International Court of Justice.

Superior orders ‘The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires’, states paragraph 4 of the article common to the three statutes dealing with general principles.201 The Nuremberg Charter contained a provision that was the model for paragraph 4: ‘The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.’202 Applying the text, the International Military Tribunal declared: ‘The provisions of this Article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war [has] never been recognised as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in

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ICTY Statute, art. 7(4); ICTR Statute, art. 6(4); SCSL Statute, art. 6(4). Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 8.

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mitigation of the punishment.’203 Yet despite the clear words of its Statute, the Nuremberg Tribunal appeared prepared to entertain the defence of superior orders under certain limited conditions. According to the International Military Tribunal, ‘[t]he true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible’.204 The Commission of Experts set up by the Security Council confirmed that the text applicable at Nuremberg was the position at customary law, noting ‘with satisfaction’ that article 7(4) of the ICTY Statute had adopted ‘an essentially similar approach’.205 It might now be more accurate to say that the tribunals have embraced an essentially similar approach to that of their predecessor, indicating their willingness to consider the defence of superior orders, subject to strict conditions, despite what appears as an absolute prohibition in the Statute itself.206 This limited form of the defence of superior orders is, in practice, more accurately manifested in the defence of duress, which is addressed next in this chapter. Most of the Nuremberg defendants attempted to plead that they were acting under superior orders. The Nuremberg judgment states: Many of these men have made a mockery of the soldier’s oath of obedience to military orders. When it suits their defence they say they had to obey; when confronted with Hitler’s brutal crimes, which are shown to have been within their general knowledge, they say they disobeyed. The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said.207

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France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, p. 221. Customary international law is more accurately reflected in article 33(1) of the Rome Statute of the International Criminal Court, which is based on a test articulated in the post-First World War Leipzig Trials. The defendant must have been under a legal obligation to obey the order and must not know that the order was unlawful, but more importantly, the order itself must not be manifestly unlawful. This approach was set out in a post-First World War case: Empire v. Dithmar and Boldt (Hospital Ship ‘‘Llandovery Castle’’), (1921) 2 ILR 437, 16 American Journal of International Law 708, German War Trials, Report of Proceedings before the Supreme Court in Leipzig, Cmd 1450, London: HMSO, 1921, pp. 56–57. Ibid. ‘Final Report of the Commission of Experts established pursuant to Security Council Resolution 935 (1994)’, UN Doc. S/1994/1405, para. 54. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 19. Note that the Appeals Chamber found that this paragraph was ‘not entirely clear’: Erdemovic´ (IT96-22-A), Judgment, 7 October 1997, para. 35. France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, p. 271.

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This is in stark contrast with the three United Nations ad hoc tribunals, where the defence of superior orders has been raised only rarely. Drazen Erdemovic´ claimed he was ordered to massacre Muslims at Srebrenica, but the Trial Chamber rejected this as a defence.208 That the accused was acting pursuant to superior orders has occasionally been invoked or considered with respect to sentencing.209

Duress and necessity Although duress is distinct from but related to the defence of superior orders, the two were sometimes conflated in the case law of the post-Second World War tribunals.210 A defendant who argues that he or she was ordered to commit a crime and that he or she was threatened with execution if the order was not complied with is invoking duress, and not mere obedience to superior orders. The distinction is quite clear in the Rome Statute, which has separate provisions with respect to duress and superior orders.211 Like superior orders, duress is also relevant to sentencing, and has been invoked occasionally in that context.212 In Erdemovic´, three members of the Appeals Chamber ruled that a defence of duress was not admissible with respect to crimes against humanity (and, presumably, genocide), although the question of applicability of the defence to some war crimes would appear to have been left undecided.213 According to the Appeals Chamber majority, international law . . . cannot admit duress in cases which involve the slaughter of innocent human beings on a large scale . . . [D]uress cannot aVord a complete defence to a soldier charged with crimes against humanity or war crimes in international law involving the taking of innocent lives. We do so having regard to our mandated obligation under the

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Erdemovic´ (IT-96-22-A), Sentencing Judgment, 29 November 1996, para. 20. Ibid., paras. 48–54; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1281; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 835; Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, para. 67. E.g., United States of America v. Ohlendorf et al. (‘Einsatzgruppen trial’), (1949) 4 TWC 1. Valerie Epps, ‘The Soldier’s Obligation to Die When Ordered to Shoot Civilians or Face Death Himself ’, (2003) 37 New England Law Review 987; Stephen C. Newman, ‘Duress as a Defence to War Crimes and Crimes Against Humanity – Drazen Erdemovic´’, (2000) 166 Military Law Review 158; David Turns, ‘The International Criminal Tribunal for the Former Yugoslavia: The Erdemovic´ Case’, (1998) 47 International and Comparative Law Quarterly 461; Sienho Yee, ‘The Erdemovic´ Sentencing Judgment: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia’, (1997) 26 Georgia Journal of International and Comparative Law 263. Banovic´ (IT-02-65/1-S), Sentencing Judgment, 28 October 2003, para. 63. Ibid., para. 17.

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Statute to ensure that international humanitarian law, which is concerned with the protection of humankind, is not in any way undermined.214

The dissenting opinions of Judges Cassese and Stephen found greater resonance in the international community, however, and are reflected in article 31 of the Rome Statute, which allows the defence of duress.215 The Rome Statute manifests the views of many States, and provides compelling evidence for the content of customary international law. Whether the Appeals Chamber might reconsider the issue in an appropriate case, given the rejection of the majority view in Erdemovic´ by the drafters of the Rome Statute, is a question of some interest. But in 2004, in an individual and dissenting opinion, Judge Shahabuddeen of the ICTY Appeals Chamber referred to the precedent in Erdemovic´ and reaYrmed that duress ‘may be pleaded only in mitigation’.216 Necessity is a defence with great aYnities to duress. In the case of duress, the compulsion results from threats, whereas in the case of necessity it must have other causes, generally natural in origin. The Rome Statute treats necessity and duress as if they are two sides of the same coin, and deals with them in the same provision. In Kupresˇkic´, the ICTY Appeals Chamber considered briefly the defence of necessity, but rejected its application to the facts in that case. For this reason, the Appeals Chamber found it ‘unnecessary to dwell on whether necessity constitutes a defence under international law [and] whether it is the same as the defence of duress’.217

Mental incapacity Insanity as a defence has arisen only rarely in the case law of major war crimes prosecutions. Rudolf Hess unsuccessfully invoked it at Nuremberg. Mental incapacity or insanity is admitted as a defence in most national criminal justice systems, although the approaches vary substantially. Some consider the matter to be jurisdictional in nature, in that a person who is not mentally competent is simply not properly before the court, in much the same way as a court would be without jurisdiction over a young child, or a comatose adult, or an animal. Nevertheless, as an ICTY Trial Chamber ˇ elebic´i, ‘[i]n every criminal act there is a presumption of sanity explained in C of the person alleged to have committed the oVence. Thus, every person 214

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Erdemovic´ (IT-96-22-A), 7 October 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 75; Separate and Dissenting Opinion of Judge Li, para. 12. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 31(1)(d). Vasiljevic´ (IT-98-32-A), Separate and Dissenting Opinion of Judge Shahabuddeen, 25 February 2004, para. 41. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 55.

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charged with an oVence is presumed to be of sound mind and to have been of sound mind at any relevant time until the contrary is proven.’218 The Appeals Chamber confirmed this approach: if the defendant raises the issue of lack of mental capacity, he is challenging the presumption of sanity by a plea of insanity. That is a defence in the true sense, in that the defendant bears the onus of establishing it – that, more probably than not, at the time of the oVence he was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of his act or, if he did know it, that he did not know that what he was doing was wrong.219

In other words, the accused must prove or establish the defence of diminished or lack of mental capacity, on a balance of probabilities standard of evidence. It is not suYcient to raise a reasonable doubt.220 The defence of insanity is codified in the Rome Statute, and may be invoked where ‘[t]he person suVers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law’.221 The text of article 31(1)(a) echoes the so-called M’Naghten rules derived from the common law,222 but would also seem to be generally consistent with the approach taken in Romano-Germanic and Sharia systems. Despite the silence of the statutes of the ad hoc tribunals, it seems beyond question that a similar defence is admissible.223 There are no reported cases in which a full defence of mental incapacity or insanity has been invoked. A few defendants have argued the ‘special defence’ of ‘diminished mental capacity’, but without success.224 There is an important distinction between mental incapacity, which is a full defence susceptible of leading to acquittal, where successful, and ‘diminished mental capacity’, which the ICTY Appeals Chamber has said may only be invoked as a mitigating factor in sentencing.225 This seems contradicted by Rule 67(A)(ii)(b), which 218 219 220

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Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1157. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 582. Delalic´ et al. (IT-96-21-T), Order on Esad Landzˇo’s Submission Regarding Diminished or Lack of Mental Capacity, 18 June 1998. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 31 (1)(a). M’Naghten’s Case, (1843) 10 Cl. & Fin 200, 8 ER 718. See Peter Krug, ‘The Emerging Mental Incapacity Defence in International Criminal Law: Some Initial Questions of Implementation’, (2000) 94 American Journal of International Law 317. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1186; Vasiljevic´ (IT-9832-T), Judgment, 29 November 2002; Sikirica, 13 November 2002, paras. 198–199. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 590. Also: Vasiljevic´ (IT98-32-T), Judgment, 29 November 2002, para. 282.

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speaks of ‘diminished’ mental capacity as a ‘special defence’. Diminished mental capacity might be the consequence of some form of psychological disability, such as post-traumatic stress disorder falling short of a test similar to the one set out in the Rome Statute. Borrowing the language from article 31 of the Rome Statute, an ICTY Trial Chamber said there is ‘diminished mental capacity’ when the Tribunal is satisfied that ‘an accused suVers from a diminished mental responsibility where there is an impairment to his capacity to appreciate the unlawfulness of or the nature of his conduct or to control his conduct so as to conform to the requirements of the law’.226 Many national justice systems provide for a full acquittal where an insanity defence is successful. But ordinarily, legislation will also provide for the preventive psychiatric detention of a person acquitted on this basis, to the extent that they pose a danger to themselves or others. What the ad hoc tribunals would do in the event of a successful defence of insanity is a matter for speculation, as no parallel international system of care for the criminally insane exists, nor does national legislation in the Netherlands, Tanzania or Sierra Leone authorise the detention of a person acquitted by the ad hoc tribunals on grounds of mental incapacity.

Voluntary intoxication There is some authority for voluntary intoxication as a defence to war crimes.227 Where an individual is heavily intoxicated, even voluntarily, that person may not have the specific intent required for a crime such as genocide. Depending on the circumstances, then, the defence is certainly admissible. It was formally codified in the Rome Statute of the International Criminal Court, which provides for acquittal if a person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court.228

Intoxication has only rarely been invoked in the reported cases of the ad hoc tribunals. In one judgment, an ICTY Trial Chamber said that

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Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 283. United Kingdom v. Chusaburo, (1947) 3 LRTWC 76 (British Military Court). Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 31.

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when mental capacity is diminished due to use of alcohol or drugs, account must be taken of whether the person subjected himself voluntarily or consciously to such a diminished mental state. While a state of intoxication could constitute a mitigating circumstance if it is forced or coerced, the Trial Chamber cannot accept Zigic’s contention that an intentionally procured diminished mental state could result in a mitigated sentence. Indeed, the Trial Chamber considers that, particularly in contexts where violence is the norm and weapons are carried, intentionally consuming drugs or alcohol constitutes an aggravating rather than a mitigating factor.229

ICTY Trial Chambers have refused to consider evidence of alcohol abuse as a mitigating factor with respecting to determination of sentence.230 This position is overly severe, and clearly inconsistent with the Rome Statute and previous authority. The issue that the tribunals must address when there is evidence that an individual was intoxicated is whether that individual had suYcient knowledge and intent. Intoxication, whether voluntary or otherwise, is certainly a relevant fact in determining this issue.

Self-defence Self-defence is an admissible defence before the tribunals, although it has been invoked only rarely and has never been successful. According to an ICTY Trial Chamber, ‘[t]he notion of ‘‘self-defence’’ may be broadly defined as providing a defence to a person who acts to defend or protect himself or his property (or another person or person’s property) against attack, provided that the acts constitute a reasonable, necessary and proportionate reaction to the attack’.231 In this respect, the Trial Chamber referred to article 31 of the Rome Statute, which allows a defence of self-defence or defence of another person where an accused acts ‘reasonably’ and in a manner that is ‘proportionate’ to the degree of danger.232 The Trial Chamber said that ‘[t]he principle of self-defence enshrined in this provision reflects provisions found in most national criminal codes and may be regarded as constituting a rule of customary international law’.233 The Appeals Chamber has also acknowledged the defence of 229

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Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 695 (reference omitted). Also: Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, para. 93. Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, para. 93, fn. 98; Simic´ (IT95-9/2-S), Sentencing Judgment, 17 October 2002, para. 74; Kvocˇka et al. (IT-98-30/1A), Judgment, 28 February 2005, para. 707. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 449. Self-defence is discussed at some length in Geert-Jan G. J. Knoops, Defenses in Contemporary International Criminal Law, Ardsley, NY: Transnational Publishers, 2001, pp. 82–91. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 450. Ibid., para. 451.

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self-defence, noting that it is not unrelated to issues of motive.234 According to the Appeals Chamber, ‘[t]he existence or the scope of self-defence under international law and the Statute is an issue the Accused must demonstrate. Its absence is not an element of a crime that the Prosecution must prove beyond reasonable doubt.’235 The words ‘self-defence’ have often been invoked before the tribunals, but not generally within the context of a recognised defence under criminal law. Rather, self-defence has been presented in a collective sense, justifying the use of force rather than specific atrocities. In this way, it is closer to the concept of self-defence as used in article 51 of the Charter of the United Nations, although with respect to the tribunals the argument has been put with respect to internal armed conflicts instead of as a justification for the use of force in international relations. For example, in attempts to account for her behaviour when pleading guilty to crimes against humanity, the Bosnian Serb leader Biljana Plavsˇic´ said that when internal conflict broke out within Bosnia and Herzegovina, ‘at the time she convinced herself that’ ethnic cleansing of Croats and Muslims ‘was a matter of survival and self-defence’.236 Similar references appear in the case law of the ICTR with respect to the extermination of the Tutsi,237 and they are likely to arise before the SCSL, where ‘self-defence’ has often been invoked as an explanation for the atrocities committed in reaction to the ‘rebel war’. The concept of ‘self-defence’ in such a context is really nothing more than an attempt to rationalise atrocities in the name of a ‘just war’. Humanitarian law knows no such justification. ˇ erkez, the Trial Chamber explained that self-defence in this In Kordic´ and C collective context was not admissible: Of particular relevance to this case is the last sentence of the above provision to the eVect that the involvement of a person in a ‘defensive operation’ does not ‘in itself ’ constitute a ground for excluding criminal responsibility. It is therefore clear that any argument raising self-defence must be assessed on its own facts and in the specific circumstances relating to each charge. The Trial Chamber will have regard to this condition when deciding whether the defence of self-defence applies to any of the charges. The Trial Chamber, however, would emphasise that military operations in self-defence do not provide a justification for serious violations of international humanitarian law.238

Because of the very individual dimension of self-defence as an admissible defence, and the requirement that it be in response to ‘an imminent and 234 235 236 237

238

Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 694. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 838. Plavsˇic´ (IT-00-39 & 40/1), Sentencing Judgment, 27 February 2003, para. 72. Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 145; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 883. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 452.

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unlawful use of force’, to borrow the words of the Rome Statute, it is unlikely to arise in prosecutions of the type undertaken by the ad hoc tribunals.

Mistake Mistake has not been raised as a defence in the reported cases, although there is no shortage of possibilities with respect to the crimes within the jurisdiction of the tribunals. An oVender who lacks knowledge of an essential fact does not possess the guilty mind or mens rea necessary for conviction. For example, a military recruiter charged with conscripting children under fifteen might argue a mistaken belief that the victim was older than he or she appeared. Of course, the tribunals will need to assess the credibility of such a claim in the light of the circumstances, and would be unlikely even to consider a defence of mistake of fact that did not have an air of reality to it. The Rome Statute of the International Criminal Court has a distinct provision authorising the defence of mistake of fact.239

Amnesty The SCSL Statute explicitly addresses the defence of amnesty, declaring that ‘[a]n amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution’.240 In his report to the Security Council on the draft SCSL Statute, the Secretary-General explained that ‘[w]hile recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict, the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law’. The Secretary-General recalled that his Special Representative had objected to the amnesty clause contained in article IX of the Lome´ Peace Agreement, noting in addition its ‘illegality under international law’.241 These statements were not fully accurate, as they neglected to mention that the United Nations had not, in fact, objected to an amnesty clause contained in an earlier peace agreement reached with respect to the Sierra Leone conflict, on 30 November 1996.242 239 240 241

242

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 32. SCSL Statute, art. 10. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, paras. 22–24. Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF), Abidjan, 30 November 1996, art. 14.

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Probably no such clause was really necessary in the SCSL Statute, given that the Court is not bound by the legislation of Sierra Leone or by agreements reached between the Government of Sierra Leone and third parties. The provision was included in order to dispel any doubt, although this did not prevent defendants from attempting to litigate the issue. Echoing the Secretary-General’s reference to the ‘illegality under international law’ of amnesty with respect to genocide, crimes against humanity and war crimes, the SCSL Appeals Chamber confirmed that in its view the amnesty was ‘not only incompatible with, but is in breach of an obligation of a State towards the international community as a whole’.243 This is a far-reaching statement that finds only limited support in treaty law or in State practice. The ‘obligation of a State towards the international community as a whole’ to which the Appeals Chamber refers is founded on the duty to prosecute, set out in the grave breach provisions of the Geneva Conventions as well as in the 1984 Convention Against Torture, neither of which was applicable to the SCSL proceedings. Even to the extent that States do consider there is some duty to prosecute genocide, crimes against humanity and war crimes, they always balance such a duty against a number of other considerations, including resource issues and practical matters. That is, in fact, what the United Nations has done with respect to the SCSL, providing it with a budget suYcient to prosecute about ten prominent oVenders and thereby securing impunity for many thousands of others. The acceptability of balancing the ‘duty to prosecute’ with available resources proves that the duty is not an absolute one, without limitation. Another relevant factor to be balanced with any obligation to prosecute is surely the imperatives of peacemaking. It seems reckless to suggest that in all cases international law prohibits amnesty when, in fact, such a mechanism may be the key to ending armed conflict. Here, too, the practice of the United Nations recognises this reality, despite statements to the contrary. At the time of the Lome´ peace negotiations in 1999, although the Special Representative of the Secretary-General appended a perfunctory objection to the amnesty, the United Nations was in principle supportive of the peace agreement, which was subsequently endorsed by the Security Council. If the United Nations objected so strenuously to the amnesty clause, which the negotiators considered indispensable to peace, why did the Secretary-General not call for a resumption of hostilities? It was awfully easy for the United Nations, which was not a party to the agreement but merely a ‘moral guarantor’, to formulate an objection which did not in fact imperil the result.

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Kallon (SCSL-04-15-AR72(E)) and Kamara (SCSL-04-16-AR72(E)), Decision on Challenge to Jurisdiction: Lome´ Accord Amnesty, 13 March 2004, para. 73. See also: Kondewa (SCSL-04-14-AR72(E)), Separate Opinion of Justice Robertson, 25 May 2004.

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Tu quoque The defence of tu quoque is a plea that the adversary committed similar atrocities. It sometimes takes the form of alleging that the adversary initiated the conflict.244 Obviously, certain aspects of Allied behaviour during the Second World War were not explored at Nuremberg because of a perceived vulnerability to such a plea.245 An ICTY Trial Chamber held that evidence that another party to a conflict may have committed atrocities ‘is, as such, irrelevant because it does not tend to prove or disprove any of the allegations made in the indictment against the accused’. According to the Trial Chamber, tu quoque is inapplicable to international humanitarian law, which creates obligations that are erga omnes.246 The ICTY Appeals Chamber has also addressed the issue, noting that when establishing whether there was an attack upon a particular civilian population, it is not relevant that the other side also committed atrocities against its opponent’s civilian population. The existence of an attack from one side against the other side’s civilian population would neither justify the attack by that other side against the civilian population of its opponent nor displace the conclusion that the other side’s forces were in fact targeting a civilian population as such. Each attack against the other’s civilian population would be equally illegitimate and crimes committed as part of this attack could, all other conditions being met, amount to crimes against humanity.247

Alibi Alibi – literally, ‘elsewhere’ – is a form of special defence by which an accused challenges having been present when the crime was committed. It is obviously 244

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See: Sienho Yee, ‘The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment’, (2004) 3 Chinese Journal of International Law 87. For example, submarine warfare: GeoVrey Best, War and Law Since 1945, Oxford: Clarendon Press, 1994, p. 78; Philippe Masson, ‘La guerre sous-marine’, in Annette Wieviorka, ed., Les proce`s de Nuremberg et de Tokyo, Paris: Editions Complexe, 1996, pp. 137–146; bombing of urban centres: Patrick Facon, ‘La pratique de la guerre ae´rienne et le droit des gens’, in Annette Wieviorka, ibid., pp. 115–136; the Katyn massacre: Alexandra Viatteau, ‘Comment a e´te´ traite´ la question de Katyn a` Nuremberg’, in Wieviorka, ibid., pp. 145–158. Kupresˇkic´ et al. (IT-95-16-T), Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, 17 February 1999, pp. 3–4 (emphasis in the original). Also: Gacumbitsi (ICTR-2001-64-T), Judgment, 17 June 2004, para. 165. See also: Eser, ‘ ‘‘Defences’’ in War Crime Trials’, at p. 269; United States of America v. von Leeb et al. (‘High Command trial’), (1948) 12 LRTWC 1, at p. 64 (United States Military Tribunal). Kunarac et al. (IT-96-23-A), Judgment, 12 June 2002, para. 87. AYrming Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 580.

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irrelevant to prosecution for aiding and abetting (i.e., complicity), in that presence of an accomplice is not required. Although common Rule 67 refers to ‘the defence of alibi’, the Appeals Chamber has said that: It is a common misuse of the word to describe an alibi as a ‘defence’. If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged. That is not a defence in its true sense at all. By raising that issue, the defendant does no more than require the Prosecution to eliminate the reasonable possibility that the alibi is true.248

Like the other special defences, alibi is subject to a specific procedural rule of pre-trial disclosure, an exception to the general rule that the defence can wait until the prosecution has completed its case before outlining the defences on which it intends to rely. The RPE declare that notification of a defence of alibi ‘shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi’.249 Disclosure of the defence and the evidence in support must be made ‘[a]s early as reasonably practicable and in any event prior to the commencement of the trial’. According to the Appeals Chamber, ‘the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged’.250 The notice is directed to the Prosecutor, and there is no requirement whatsoever on the defence to inform the Trial Chamber.251 Failure to observe this requirement does not totally deprive the defence of the right to invoke an alibi defence, but where good cause is not shown for failing to notify the prosecution, ‘the Trial Chamber is entitled to take into account this failure when weighing the credibility of the defence of alibi and/or any special defences presented’.252 As with other special defences, an evidentiary burden is imposed on the defence, which must indicate proof suYcient to raise a reasonable doubt. An alibi defence cannot in any way change the burden on the Prosecutor to prove that the accused actually committed the crime and, therefore, was present

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Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 581. Also: Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 463. ICTY RPE, Rule 67(A)(i)(b); ICTR RPE, Rule 67(A)(ii)(b); SCSL RPE, Rule 67(A)(ii)(b). Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 111. Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 244. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 235–239; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 106.

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when it was committed.253 For example, in Vasiljevic´, an ICTY Trial Chamber said that ‘[w]hen a ‘‘defence’’ of alibi is raised by an accused person, the accused bears no onus of establishing that alibi. The onus is on the Prosecution to eliminate any reasonable possibility that the evidence of alibi is true.’254 In an ICTR case, a Trial Chamber put this diVerently, and probably incorrectly: ‘If the alibi is reasonably possibly true, it will be successful.’255

Consent Consent as a defence may be raised with respect to some crimes, although it cannot be a defence to murder, for example. The ICTY and ICTR Rules of Procedure and Evidence speak to this directly with respect to sexual assaults: ‘consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be subjected, threatened or put in fear’.256 The SCSL RPE express this diVerently, in a text inspired by ICTY case law: consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent; consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence.257 Before the ICTY and ICTR, the Rules limit presentation of evidence of consent in sexual assault cases. It can only be introduced after its relevance and credibility is verified in an in camera hearing.258 To some extent, this is just the mirror of the definition of rape in the case law, which refers to sexual relations ‘by coercion or force or threat of force

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Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 234; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 108. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 15. See also: Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 638; Kayishema et al. (ICTR-95-1A), Judgment (Reasons), 1 June 2001, para. 107. Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 166. The likelihood that the Trial Chamber misunderstood the evidentiary standard is corroborated by the unusual organisation of its judgment, which examines the arguments of the defence before reviewing the case for the Prosecutor. ICTY RPE, Rule 96(ii); ICTR RPE, Rule 96(ii). SCSL RPE, Rule 96(i)–(iii). In Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 463, an ICTY Trial Chamber criticised the drafting of Rule 96, and the judges of the SCSL were clearly inspired by the judgment. No similar changes were made to the ICTY or ICTR Rules following Kunarac. ICTY RPE, Rule 96(iii); ICTR RPE, Rule 96(iii).

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against the victim or a third person’.259 The earliest version of the ICTY RPE simply prohibited consent as a defence to crimes of sexual assault, but it was quickly amended when the judges saw the absurdity of what was apparently an inadvertent general prohibition on consensual sexual relations. Rule 96 also contains a prohibition on the admission of evidence of prior sexual conduct of the victim, largely to avoid its use in order to discredit a claim by a victim that sexual relations were not consensual.260 The SCSL deals with this somewhat diVerently: ‘Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of sexual nature of the prior or subsequent conduct of a victim or witness.’261 These provisions largely reflect legislation introduced in recent years in many progressive criminal law jurisdictions aimed at eliminating traditional and stereotypical views of women that only compromise eVective criminal prosecutions of violent sexual oVenders. Generally, the tribunals view the existence of armed conflict as creating an inherently coercive situation.262 In practice, this leads to a presumption that there is no consent, although it can be rebutted by the defence. An ICTY Trial Chamber, in Furundzˇija, said that ‘any form of captivity vitiates consent’.263 In Kunarac, a Trial Chamber reviewed the approaches of various jurisdictions to the definition of rape, and to the significance of lack of consent as an element of the crime, something that is a particular feature of common law systems: In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist. A clear demonstration that such factors negate true consent is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where factors such as use of force, the unconsciousness or inability to resist of the victim, or misrepresentation by the perpetrator.264

But the Kunarac Trial Chamber disagreed with considering lack of consent to be an element of the crime of rape. It said that the reference in Rule 96 to consent as a defence was inappropriate, because it suggested a shifting of the

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Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 185. ICTY RPE, Rule 96(iv); ICTR RPE, Rule 96(iv). The Rule prohibits the admission of such evidence altogether, and not only in defence, something that is implicit in the ICTY Rule but quite explicit in the ICTR Rule. SCSL RPE, Rule 96(iv). Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 495. See also: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 688; Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 178. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 271. Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 458.

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burden of proof to the accused. In fact, said the Trial Chamber, lack of consent was an element of the crime that the Prosecutor was required to establish.265 Consent may also arise as a defence with respect to the crime against humanity of enslavement. For there to be enslavement, the consent or free will of the victim must be absent. As with sexual assault, this will often be the result of a coercive environment, detention or captivity, the fear of violence, deception or false promises, abuse of power, vulnerability of the victim, and psychological oppression or socio-economic conditions. Judge Shahabuddeen of the ICTY Appeals Chamber discussed this matter at some length in Krnojelac: Consent is a matter of will. Milch shows that the use of a conventional labour contract can be a fictitious method of disguising the absence of real consent to work. In the trial of the major war criminals at Nuremberg, the International Military Tribunal pointed out that even the fact that workers might theoretically be allowed to transfer their savings to their own country does not necessarily show consent. The issue whether there is consent might arise in various settings. The Kunarac Trial Chamber correctly held that in certain circumstances even the fact that a woman initiated sex does not necessarily imply consent. The circumstances of a particular case have to be considered to determine whether it was at all possible for consent to be given in that case.266

In that case, the Appeals Chamber considered that non-Serb detainees in a camp known as KP Dom were subjected to a coercive prison regime and that they were not in a position to provide genuine consent. As a result, the Trial Chamber’s finding that the victims had consented to some extent was overturned.267 Similarly, consent can be a defence to charges of deportation, forcible transfer or displacement. Displacement must take place under coercion,268 although the fact that persons who were displaced may have wished and indeed even requested to be removed does not necessarily mean that they had exercised a genuine choice.269 As one ICTY Trial Chamber has noted, ‘[t]he trier of fact must consequently consider the prevailing situation and atmosphere, as well as all relevant circumstances, including in particular the victims’ vulnerability, when assessing whether the displaced victims had a genuine choice to remain or leave and thus whether the resultant displacement was unlawful’.270 265 266

267 268 269 270

Ibid., para. 463. Krnojelac (IT-97-25-A), Separate Opinion of Judge Shahabuddeen, 17 September 2003, para. 8. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 233 Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 543. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 229. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 596.

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Reprisal Reprisal is a controversial defence. It amounts to an argument that crimes are justifiable as a proportionate response to criminal acts committed by the other party. In a sense, it is the most ancient means of enforcement of law. The purpose of a reprisal is to compel the adversary to comply with legal norms. Humanitarian law instruments prohibit reprisals in most circumstances. Thus, the third Geneva Convention forbids reprisals against prisoners of war.271 A similar provision concerning civilians and other protected persons appears in Additional Protocol I.272 As an ICTY Trial Chamber explained in Kupresˇkic´, reprisals against civilians in a combat zone are also prohibited, by article 51(6) of Additional Protocol I.273 That text outlaws ‘attacks against the civilian population or civilians by way of reprisals’. Another ICTY Trial Chamber said this ‘implies that the prohibition against reprisals cannot be waived on the grounds of military necessity’.274 Thus, although severely limited, it is not inconceivable that reprisals might be exercised against other combatants. For example, if one side in a conflict were to employ prohibited weapons, the other side might do the same, acting in reprisal in order to compel a return to legality. The Rome Statute does not refer to any defence of reprisal, although the issue arose occasionally during the drafting.275 In Kupresˇkic´, an ICTY Trial Chamber said that reprisals usually attract ‘universal revulsion’ because they are arbitrary, and are generally not directed against the person responsible for the violation of humanitarian law that provoked the reprisal. The Trial Chamber said it could not be denied that reprisals against civilians are inherently a barbarous means of seeking compliance with international law.276 According to the Trial Chamber, ‘[i]t is diYcult to deny that a slow but profound transformation of humanitarian law under the pervasive influence of human rights has occurred. As a result,

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Geneva Convention of August 12, 1949 Relative to the Protection of Prisoners of War, (1950) 75 UNTS 135, art. 13. Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, art. 20. Additional Protocol I deals only with international armed conflict. In Martic´ (IT-95-11), Oral Ruling in Hearing on Rule 61, 8 March 1996, Transcript, pp. 137–140, an ICTY Trial Chamber ruled that reprisals against civilians are prohibited in all conflicts, be they international or internal. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 527. Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 44, fn. 77. ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’, UN Doc. A/50/22, Annex II, pp. 59–60. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 527.

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belligerent reprisals against civilians and fundamental rights of human beings are absolutely inconsistent legal concepts.’277 The views expressed in Kupresˇkic´ are controversial, however, and have been criticised by scholars.278 Moreover, the United Kingdom Manual of the Law of Armed Conflict says ‘the court’s reasoning [in Kupresˇkic´] is unconvincing and the assertion that there is a prohibition in customary law flies in the face of most of the state practice that exists. The UK does not accept the position as stated in this judgment.’279

Military necessity Article 2(d) of the ICTY Statute specifically contemplates a ‘justification’ of military necessity with respect to the grave breach of ‘extensive destruction and appropriation of property’.280 Article 3(b) of the ICTY Statute makes a similar reference in the case of ‘wanton destruction of cities, towns or villages, or devastation not justified by military necessity’. Although it is not referred to in the text of article 3(d) of the ICTY Statute, under certain circumstances military necessity may also be a defence to a charge of destruction of cultural property.281 All of these references concern crimes against property. However, a few cases have suggested that military necessity might also be a defence to a charge of targeting civilians. In Blasˇkic´, an ICTY Trial Chamber said that ‘[t]argeting civilians or civilian property is an oVence when not justified by military necessity’.282 The Trial Chamber concluded, for example, that ‘[b]y advocating the vigorous use of heavy weapons to seize villages inhabited mainly by civilians, General Blasˇkic´ gave orders which had consequences out of all proportion to military necessity and knew that many civilians would inevitably be killed’.283 Similarly, another ICTY Trial Chamber wrote that 277 278

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281 282

Ibid., para. 529. Theodor Meron, ‘The Humanization of Humanitarian Law’, (2000) 94 American Journal of International Law 239, at p. 250; Frits Kalshoven, ‘Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal’, in L. C. Vohrah et al., eds., Man’s Inhumanity to Man: Essays in Honour of Antonio Cassese, The Hague: Kluwer Law International, 2003, pp. 481–510; Christopher Greenwood, ‘Belligerent Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, in Horst Fischer, Claus Kress and Sascha Rolf Lu¨der, eds., International and National Prosecution of Crimes Under International Law, Current Developments, Berlin: Arno Spitz, 2001, pp. 539–557. United Kingdom Ministry of Defence, The Manual of Law of Armed Conflict, Oxford: Oxford University Press, 2004, p. 421, fn. 62. Generally, see: Burrus M. Carnahan, ‘Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity,’ (1998) 92 American Journal of International Law 213. Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 328. 283 Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 180. Ibid., para. 651.

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‘prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects.’284 But in Galic´, the case dealing with terror shelling of Sarajevo, an ICTY Trial Chamber criticised these statements, declaring that it did not subscribe to the view that conduct prohibited by article 51(2) of Additional Protocol I, which declares that ‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack’, allowed a defence of military necessity. According to the Trial Chamber, article 51(2) states in clear language that civilians and the civilian population as such should not be the object of attack. It does not mention any exceptions. In particular, it does not contemplate derogating from this rule by invoking military necessity.285

ˇ erkez cases, the In subsequent appeals of both the Blasˇkic´ and Kordic´ and C Appeals Chamber, acting essentially on its own initiative and without this being part of the grounds of appeal, insisted upon correcting the Trial Chambers with respect to the defence of military necessity. In Blasˇkic´, the Appeals Chamber declared ‘that there is an absolute prohibition on the targeting of civilians in customary international law’.286 Its comments were ˇ erkez: more elaborate in Kordic´ and C The Appeals Chamber clarifies that the prohibition against attacking civilians and civilian objects would not be a crime when justified by military necessity. The prohibition against attacking civilians stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants, between civilian objects and military objectives and accordingly to direct military operations only against military objectives.287

The Appeals Chamber referred to the ‘principle of distinction’ which is enunciated in article 48 of Additional Protocol I, noting that the International Court of Justice, in the Advisory Opinion on Nuclear Weapons, described the

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Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 328. Also: Rajic´ (IT-9512-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, paras. 54–57. See the discussion of these cases, and of the defence of military necessity generally, in Knut Do¨rmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court, Sources and Commentary, Cambridge: Cambridge University Press, 2002, p. 149. Galic´ (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 44. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 109. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 54.

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principle of distinction, along with the principle of protection of the civilian population, as ‘the cardinal principles contained in the texts constituting the fabric of humanitarian law’ and stated that ‘States must never make civilians the object of attack’.288 The Appeals Chamber cited the International Court of Justice: ‘These fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.’289 An ICTY Trial Chamber subsequently declared that the Appeals Chamber had ‘overturned’ the Blasˇkic´ Trial Chamber with respect to military necessity.290 Military necessity has also been referred to by an ICTY Trial Chamber as a possible defence to charges of crimes against humanity. It is well established that persecutions may encompass property crimes. The Trial Chamber accepted that attacks on civilian property could be justifiable under certain circumstances, within the context of crimes against humanity, supporting its opinion with reference to the recognition of military necessity as a defence to the war crime of destruction of civilian property.291 Similarly, it noted that forcible transfer or displacement of a civilian population, which is recognised as a crime against humanity in the case law of the ICTY, could be justified on grounds of ‘overriding, i.e. imperative, military reasons’.292 288

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Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General Assembly for an Advisory Opinion), [1996] ICJ Reports 226, para. 78. The International Court of Justice further asserted that ‘these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’. Ibid. Strugar (IT-01-42), Judgment, 31 January 2005, para. 278. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 593; also para. 615. Discussed above at pp. 220–222. Ibid., para. 598.

10 Investigation and pre-trial procedure

The statutes have almost nothing to say about the procedure of the tribunals. The matter is left to the judges, who are invited to develop Rules of Procedure and Evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.1 Articles 18, 19 and 20 of the ICTY Statute, and corresponding provisions in the Statute of the ICTR, provide slightly more detail about the procedural approach. The SCSL Statute does not contain even these modest procedural provisions. Instead, the SCSL Statute imposes the Rules of Procedure and Evidence of the ICTR, subject to subsequent amendment, with the consequence that a largely similar procedure approach is imposed.2 There are stories of a legendary meeting of ICTY judges, early in 1994 just following their election, at which various views of an appropriate procedural and evidentiary model were debated. Each of the judges came from a national system and had little and often no experience with any international models or other national models. It was a confrontation driven more by ignorance of other systems than by any principled devotion to a particular approach. Professor James Crawford has spoken of ‘the tendency of each duly socialized lawyer to prefer his own criminal justice system’s values and institutions’.3 The lawyers working at the Tribunal also left their mark. As Louise Arbour has described it: You know, when you work within an institution, you give it a culture. The International Criminal Tribunal for the former Yugoslavia was originally staVed by twenty-five US attorneys who donated their time for a couple of years. Many European countries were outraged by the large number of Americans and felt that the United States had basically hijacked the institution culturally. And it had, to a large extent. It was a common-law

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ICTY Statute, art. 15; ICTR Statute, art. 14. SCSL Statute, art. 14. James Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, (1995) 89 American Journal of International Law 404.

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jurisdiction, and the way of doing business was very North American because the Americans were there from day one.4

Initial tensions soon gave way to a degree of respect and, eventually, a tolerant and generous vision of comparative criminal law. Experts continue to quarrel about just how ‘hybrid’ the system really is.5 But it is beyond question that the tribunals operate under a procedural regime that draws from the best of the world’s legal systems, and that is also, given the uniqueness of international war crimes prosecution, somewhat sui generis. There is no shortage of examples of this hybridisation. Nevertheless, it is not free from diYculty and discord. Even when the tribunals were in a relatively mature phase, in 2004, there were disputes about the incompatibilities of blending rules drawn from diVerent legal systems. For example, when Slobodan Milosˇevic´ insisted on defending himself without counsel, a right seemingly guaranteed in an absolute fashion by article 21(4)(d) of the ICTY Statute, it was contended that this was a right subject to exceptions, with the exception being derived from European practice. But European criminal procedure is not fundamentally adversarial, so it does not delegate to the defendant the control over the strategy and tactics of the case. In continental Europe, judges, and not the defendant, are masters of the issues that will be raised in the case. As a result, imposed counsel is not particularly objectionable. The same cannot be said of common law trials, however, where there is nothing to stop a stubborn and obstinate defendant who refuses to argue a specific defence, call a particular witness, or testify in his or her own defence. The merger of rules from common law and continental systems is sometimes questionable because the raison d’eˆtre of the norms is fundamentally diVerent. As a general rule, nevertheless, the experience of combining approaches from diVerent legal systems, principally those of the common law and continental Europe (variously called ‘civil law’ and ‘Romano-Germanic law’) has been fundamentally successful. The phenomenon has been occasionally discussed in judgments. In Erdemovic´, Judge Cassese of the ICTY Appeals Chamber wrote: [I]nternational criminal procedure does not originate from a uniform body of law. It substantially results from an amalgamation of two diVerent legal systems, that obtaining in common-law countries and the system prevailing in countries of civil-law (although for historical reasons, there currently exists at the international level a clear imbalance in favour of the common-law approach). It is therefore only natural that international

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Louise Arbour, ‘Crimes against Women under International Law’, (2003) 21 Berkeley Journal of International Law 196, at p. 209. See, e.g., Maximo Langer, ‘The Rise of Managerial Judging in International Criminal Law’, UCLA School of Law Research Paper No. 04–19, 18 October 2004.

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criminal proceedings do not uphold the philosophy behind one of the two national criminal systems to the exclusion of the other; nor do they result from the juxtaposition of elements of the two systems. Rather, they combine and fuse, in a fairly felicitous manner, the adversarial or accusatorial system (chiefly adopted in common-law countries) with a number of significant features of the inquisitorial approach (mostly taken in States of continental Europe and in other countries of civil-law tradition). This combination or amalgamation is unique and begets a legal logic that is qualitatively diVerent from that of each of the two national criminal systems: the philosophy behind international trials is markedly at variance with that underpinning each of those national systems. Also the Statute and Rules of the International Tribunal, in outlining the criminal proceedings before the Trial and Appeals Chambers, do not refer to a specific national criminal approach, but originally take up the accusatorial (or adversarial) system and adapt it to international proceedings, while at the same time upholding some elements of the inquisitorial system.6

Jurists have become increasingly open-minded, and some have learned not only to respect the approaches of ‘the other’ system, but even to prefer it to their own. Speaking of the parallel process at the International Criminal Court, one commentator has described how ‘the fight between common law and civil law has been replaced by an agreement on common principles and civil behaviour’.7 After all, both systems share the basic fundamental procedural guaranties, such as the presumption of innocence and the right to a fair trial, as recognised by the International Covenant on Civil and Political Rights and embodied in ICTR, ICTY and SCSL statutes.

Investigation and indictment One of the laconic provisions in the ICTY and ICTR statutes is entitled ‘investigation and preparation of indictment’. The Prosecutor is to investigate either ‘ex-oYcio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations’. The Prosecutor is then to determine whether or not there is a ‘suYcient basis’ to proceed. The Prosecutor is to assess the information received or obtained and decide whether there are suYcient grounds to proceed. The statutes authorise the Prosecutor to question suspects, victims and witnesses, to collect evidence and to conduct onsite investigations. Upon a determination that a prima facie case exists, the 6

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Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 4. Hans-Jo¨rg Behrens, ‘Investigation, Trial and Appeal in the International Criminal Court Statute (Parts V, VI, VIII)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 113, at p. 113, fn. 2.

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Prosecutor is to prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged. The indictment is to be transmitted to a judge of the Trial Chamber. The provisions in the ICTY and ICTR statutes are completed with much more detailed provisions in the Rules of Procedure and Evidence. Very similar provisions are followed with respect to the SCSL, although by virtue of the RPE rather than the Statute itself.

Identification of suspects and accused The Prosecutor has broad discretion in deciding upon cases that he or she decides to investigate. Most of this work has been conducted outside the public view, although because of the highly political nature of the cases before the three tribunals there has been no shortage of attempts to influence the choices made by the Prosecutor. By and large, the Prosecutor does not account for investigative priorities. Nevertheless, in 2000, the ICTY Prosecutor publicised her internal report counselling against an indictment with respect to war crimes imputable to NATO forces during the 1999 Kosovo campaign.8 Criticism of the Prosecutor’s exercise of discretion is a constant of the tribunals. Participants in the conflict continually complain that they are being singled out, while their opponents are left untouched. With respect to the former Yugoslavia, all three of the major ethnic groups have been targets of investigation, although the bulk of the indictments have concerned Serbs. Critics of the ICTY Prosecutor have alleged that Serb President Slobodan Milosˇevic´ was given de facto immunity in return for his cooperation in 8

‘Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report to the Prosecutor’, The Hague, 13 June 2000, PR/ P. I. S./510-e. See: Paolo Benvenuti, ‘The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia’, (2001) 12 European Journal of International Law 503; Michael Bothe, ‘The Protection of the Civilian Population and the NATO Bombing in Yugoslavia: Comments on a Report to the Prosecutor of the ICTY’, (2001) 12 European Journal of International Law 531; Anthony J. Colangelo, ‘Manipulating International Criminal Procedure: The Decision of the ICTY OYce of the Independent Prosecutor not to Investigate NATO Bombing in the Former Yugoslavia’, (2003) 97 Northwestern University Law Review 1393; William J. Fenrick, ‘Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia’, (2001) 12 European Journal of International Law 489; A. Laursen, ‘NATO, the War Over Kosovo, and the ICTY Investigation’, (2002) 17 American University International Law Review 765; Michael Mandel, ‘Our Case Against NATO and the Lessons to be Learned from it’, (2001) 25 Fordham International Law Journal 95; N. Ronzitti, ‘Is the Non Liquet of the Final Report by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia Acceptable?’, (2000) 82 International Review of the Red Cross 1017; K. Voon, ‘Pointing the Finger: Civilian Casualties of NATO Bombing in the Kosovo Conflict’, (2001) 16 American University International Law Review 1083; Robert Cryer, Prosecuting International Crimes, Selectivity and the International Criminal Law Regime, Cambridge: Cambridge University Press, 2005, at pp. 213–220.

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reaching the peace agreement at Dayton.9 In Rwanda, the Prosecutor has regularly declared that investigations have focused on Tutsi perpetrators of atrocity as well as the Hutu extremists who were responsible for genocide, although there have been no public indictments of the former. The SCSL has appeared to be the most balanced, in that its initial indictees represent more or less equally the various combatant factions in the civil war. But a balanced approach, while ostensibly fair and equitable, only angers those who contend that the conflict was a struggle between right and wrong, and that some sort of value judgment about the participants in the conflict should guide the exercise of prosecutorial discretion. Moreover, there have been complaints that the Prosecutors have sometimes been influenced by political considerations, despite their much-vaunted independence. The best assurance that the process is relatively fair and equitable is the credibility of the individuals who hold the oYce, and here all three tribunals have been particularly blessed with Prosecutors with great credibility and integrity. Prosecutor Richard Goldstone has admitted that the initial ICTY prosecution was influenced by political consideration. According to Goldstone, Dragan Nikolic´ was not ‘an appropriate first person for an indictment by the first international war crimes tribunal’. However, governments, the United Nations and international NGOs were impatient for prosecutions to begin, and as a result ‘we had to get out an indictment quickly’.10 There was also financial pressure. The first President of the Tribunal said he and his colleagues expected trials at the ICTY to begin in June or July 1994, even before Goldstone’s appointment. The United Nations cut the budget of the Tribunal from $33 million to $22 million after it concluded that trials would not begin before mid-1995.11 In fact, they did not start until 1996. Nikolic´ was not the only ‘target of opportunity’. Some months after his indictment, another Serb combatant, who was at a relatively low level in the hierarchy of atrocity, was arrested in Germany.12 Dusˇko Tadic´ quickly became the star defendant. In contrast with Nikolic´, who was not even arrested until April 2000,13 Tadic´ was already safely in custody with cooperative German 9

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M. Cherif Bassiouni, ‘Combating Impunity for International Crimes’, (2000) 71 University of Colorado Law Review 409, at p. 419. Richard J. Goldstone, ‘Prosecuting Rape as a War Crime’, (2002) 34 Case Western Reserve Journal of International Law 277, at p. 281. Paul Lewis, ‘US Aide Sees Nations Hindering Balkan Tribunal’, New York Times, 18 January 1994, p. 10. Anna Tomforde, ‘German Police Hold Serb for War Crimes, Munich Arrest Follows Investigation by Television Crew’, Guardian, 15 February 1994, p. 11. Nikolic´ eventually pleaded guilty to the crime against humanity of persecution, and was sentence to twenty-three years in prison. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003. The sentence was reduced to twenty years by the Appeals Chamber. Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005.

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authorities. Though insignificant in terms of his role in the overall scheme of things, his name is now as familiar to international case law as that of Eichmann or Goering. The ICTR and SCSL were more fortunate, in that ‘high value’ indictees presented themselves relatively early in their work. The provisions applicable to the ICTY and ICTR require that the Prosecutor make an initial determination that there is suYcient evidence (a prima facie case) to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal.14 The SCSL RPE do not set out the prima facie standard, and require only that ‘the allegations in the Prosecution’s case summary would, if proven, amount to the crime or crimes as particularised in the indictment’.15 According to Judge R. Sidhwa, of the ICTY, in an early ICTY case, reasonable grounds point to such facts and circumstances as would justify a reasonable or ordinarily prudent man to believe that a suspect has committed a crime. To constitute reasonable grounds, facts must be such which are within the possession of the Prosecutor which raise a clear suspicion of the suspect being guilty of the crime . . . It is suYcient that the Prosecutor has acted with caution, impartiality and diligence as a reasonably prudent prosecutor would under the circumstances to ascertain the truth of his suspicions. It is not necessary that he has double checked every possible piece of evidence, or investigated the crime personally, or instituted an enquiry into any special matter . . . The evidence . . . need not be overly convincing or conclusive; it should be adequate or satisfactory to warrant the belief that the suspect has committed the crime. The expression ‘suYcient evidence’ is thus not synonymous with ‘conclusive evidence’ or ‘evidence beyond reasonable doubt’.16

In Momir Nikolic´, an ICTY Trial Chamber said: ‘It is important to recall that under the Statute of the Tribunal and the Rules, the Prosecutor has the sole power to investigate alleged crimes which fall within the jurisdiction of the Tribunal and to prepare an indictment. This power extends to the sole competence to determine the crime or crimes with which an accused is charged.’17 Judge Wald linked the issue to judicial independence, insisting that the task of selecting defendants belonged solely to the Prosecutor. ‘To recognise a parallel power in judges to accept or reject cases on extra-legal grounds invites challenges to their impartiality as exclusively definers and interpreters of the law’, she wrote.18 14

15 16 17 18

ICTY Statute, art. 18(4); ICTY RPE, Rule 49(A); ICTR Statute, art. 17(4); ICTR RPE, Rule 49(A). SCSL RPE, Rule 47(E). Rajic´ (IT-95-12), Decision, 29 August 1995. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 50. Jelisic´ (IT-95-10-T), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 14.

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The SCSL Statute specifies that the Court has jurisdiction only over ‘persons who bear the greatest responsibility’ for serious violations of international humanitarian law.19 In principle, the Prosecutor’s determination would be subject to some judicial review, although it is unlikely that judges would intervene except in the clearest of cases of abusive exercise of discretion.20 Otherwise, there is no basis in the statutes for any oversight concerning the exercise of discretion by the Prosecutor in deciding whom to prosecute. However, the RPE impose some restrictions upon the exercise of prosecutorial discretion. In particular, where the Prosecutor seeks transfer of a case that is already pending before national courts in a State, certain criteria must be fulfilled before the judges will issue a deferral order.21 In the case of suspected contempt, the RPE authorise chambers to ‘direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for contempt’.22 The ‘completion strategy’ of the tribunals has resulted in additional encroachment on prosecutorial discretion.23 An indictment properly before the Tribunal may be deferred to national courts at the initiative of a Trial Chamber designated by the President, acting proprio motu.24 Furthermore, amended Rule 28(A) authorises the Bureau to undertake a preliminary screening of all indictments so as to ensure that prima facie they concentrate ‘on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal’. If the Bureau determines that the indictment does not meet this standard, the President is to return the indictment to the Registrar to communicate this finding to the Prosecutor. But the judges have no authority under the Statute to interfere in this way with the Prosecutor’s personal choice concerning indictments. For this reason, the ICTR judges declined to adopt the same amendment, a position that is

19 20

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SCSL Statute, art.1(1). Fofana (SCSL-04-14-PT), Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of the Accused Fofana, 3 March 2004. The Court considered that the term ‘persons who bear the greatest responsibility’ clearly imposes a personal jurisdiction requirement. It stated that ‘the Chamber therefore concludes that the issue of personal jurisdiction is a jurisdictional requirement, and while it does of course guide the prosecutorial strategy, it does not exclusively articulate prosecutorial discretion, as the Prosecution has submitted’. ICTY RPE, Rule 9; ICTR RPE, Rule 9; SCSL RPE, Rule 9. This is discussed in greater detail below at pp. 383–386. ICTY RPE, Rule 77(C)(i); ICTR RPE, Rule 77(B)(i). See, e.g., Kamuhanda (ICTR-9954A-A), Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005. The SCSL RPE do not authorise Chambers to direct the Prosecutor in this way. On the ‘completion strategy’, see above at pp. 40–43. ICTY RPE, Rule 11bis.

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supported by the ICTY Prosecutor.25 The ICTY judges rely apparently on a paragraph in Security Council Resolution 1534 requiring that ‘in reviewing and confirming any new indictments’ the Tribunal is ‘to ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal’.26 An argument that an indictment is invalid because the Prosecutor has not indicted other persons who are allegedly equally or more culpable is unsusˇ elebic´i, an ICTY Trial Chamber said tainable. In C it is preposterous to suggest that unless all potential indictees who are similarly situated are brought to justice, there should be no justice done in relation to a person who has been indicted and brought to trial. Furthermore, the decision of whom to indict is that of the Prosecutor alone and, once such an indictment has been confirmed, it is incumbent upon the Trial Chambers to perform their judicial function when such accused persons are brought before them.27

Conduct of investigations During the investigation phase, the Prosecutor is provided with important powers. Summarily described in the ICTY and ICTR statutes, they are set out in considerably more detail in the Rules of Procedure and Evidence. The Rules state that the Prosecutor may: summon and question suspects, victims and witnesses and record their statements, collect evidence and conduct onsite investigations; undertake such other matters as may appear necessary for completing the investigation and the preparation and conduct of the prosecution at the trial, including the taking of special measures to provide for the safety of potential witnesses and informants; seek, to that end, the assistance of any State authority concerned, as well as of any relevant international body, including the International Criminal Police Organization (INTERPOL). Moreover, the Prosecutor may also request such orders as may be necessary from a Trial Chamber or a judge.28 But aside from the case of Sierra Leone, where national implementing legislation gives the Prosecutor a certain amount of authority in conducting investigations to the extent these are carried out within Sierra Leone, by and large the three prosecutors are 25

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Daryl A. Mundis, ‘The Judicial EVects of the ‘‘Completion Strategies’’ on the Ad Hoc International Criminal Tribunals’, (2005) 99 American Journal of International Law 142, at p. 148. Larry D. Johnson, ‘Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity’, (2005) 99 American Journal of International Law 158, at p. 164. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 179. ICTY RPE, Rule 39; ICTR RPE, Rule 39; SCSL RPE, Rule 39.

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dependent upon national justice systems for legal assistance at the investigation stage. The procedure concerning summons and questioning of suspects, victims and witnesses, the collection of evidence and the conduct of on-site investigations appears to have taken place largely in a non-judicial context, and there is little trace of debates about these provisions in the case law. The Prosecutor seems to have operated with the consent of States, perhaps as a result of firm but discreet diplomatic pressure, who have either oVered visas to tribunal investigators and oYcials enabling them to operate within their borders, or provided assistance from their own police and other authorities. Early in the work of the ICTY, the Trial Chamber issued a subpoena at the request of the Prosecutor addressed to the Government of Croatia, seeking the production of documents. The Appeals Chamber ruled that while such orders could not be called by the common-law term subpoena, the Tribunal most certainly had the power to issue a binding order against a sovereign State.29 This was by virtue of article 29 of the ICTY Statute, entitled ‘Cooperation and judicial assistance’. Article 29 requires States to cooperate with the Tribunal in investigation and prosecution in a general sense, and more specifically to comply without undue delay with any request for assistance, or with an order issued by a Trial Chamber. Such orders include, but are not limited to, those for the identification and location of persons, the taking of testimony and the production of evidence, the service of documents, the arrest or detention of persons, and the surrender or the transfer of the accused. There is a similar provision in the ICTR Statute. However, there is no equivalent in the SCSL Statute, because the Court was not established pursuant to Chapter VII of the Charter of the United Nations. In practice, however, there is nothing to prevent the Prosecutors of all three tribunals from issuing requests to States and, in the event of failure to comply, complaining to the Security Council and asking for its assistance. Moreover, there is nothing to oblige the Security Council to take further measures. Aside from general statements about the duty to cooperate with the Tribunal, the Security Council has not been disposed to intervene and assist in enforcement.30 All three tribunals have issued various orders to States,31 and all three have been frustrated by the refusal to comply. 29

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Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997. 29 October 1997. E.g., UN Doc. S/RES/978 (1995), para. 1; UN Doc. S/RES/1019 (1995), para. 8; UN Doc. S/RES/1207 (1998); UN Doc. S/RES/1534 (2004), paras. 1, 2. See: Mark B. Harmon and Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three DiYculties Encountered by Prosecutors in International Criminal Proceedings’, (2004) 2 Journal of International Criminal Justice 403, at pp. 418–421. For an example resulting from a defence motion, see: Kamuhanda (ICTR-99-54A-T), Decision on Kamuhanda’s Motion for Extension of Judicial Cooperation to Certain

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This is not to suggest that there has not been a high degree of assistance by States, especially with respect to the ICTY and ICTR. Many States have adopted enabling legislation to facilitate legal assistance with the two tribunals. The Annual Reports of the tribunals testify to widespread cooperation, although few details are provided. There are many examples of assistance, including arrest and interim detention of suspects, and relatively few of noncompliance. The main culprits have been governments aligned with the combatants, notably Serbia and Croatia. Serbia waited two years after its president, Slobodan Milosˇevic´, had been indicted before finally cooperating in his arrest and transfer to The Hague. Rwanda has at times appeared uncooperative with the Tribunal as part of its ongoing quarrels over a host of issues, including the lingering threat of indictment of individuals aligned with its post-conflict government.32 In the case of one request for arrest and surrender, a United States district court ruled that it lacked jurisdiction to surrender a Rwandan citizen to the ICTR because the United States did not have an extradition treaty with the Tribunal.33 The ruling was later reversed, and the suspect surrendered. The most dramatic example of non-cooperation was Ghana’s refusal to comply with a request from the Prosecutor of the Special Court for Sierra Leone that Liberian president Charles Taylor be arrested while attending a peace negotiation in Accra. The request was pursuant to a warrant issued following an indictment approved by the Court months earlier. Ghana was under no legal duty pursuant to the Statute to cooperate with the Court. Moreover, it would almost surely have been in breach of its other international obligations had it attempted to arrest the president of a neighbouring State. The Prosecutor’s powers also include the taking of physical evidence. In this regard, an ICTR Trial Chamber invoked article 18(2) of the Statute and Rule 40(a)(ii) when the Prosecutor took possession of personal eVects seized from an accused during provisional arrest by national authorities, in the presence of investigators from the OYce of the Prosecutor. The Trial Chamber

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33

States and to the UNHCR Pursuant to Article 28 of the Statute and Resolution 955 of the Security Council, 9 May 2002. E.g., Niyitegeka (ICTR-96-14-T), Decision to Adjourn Proceedings Due to the Unavailability of Witnesses, 19 June 2002. In re Ntakirutimana, 998 F.Supp. 1038 (SD TX, 1997); Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999), cert. denied, 528 US 1135 (2000). See: John F. Murphy, ‘The Quivering Gulliver: US Views on a Permanent International Criminal Court’, (2000) 34 International Lawyer 45; Louis Klarevas, ‘The Surrender of Alleged War Criminal to International Tribunals: Examining the Constitutionality of Extradition via Congressional–Executive Agreement’, (2003) 8 UCLA Journal of International Law and Foreign AVairs 77; Kenneth J. Harris and Robert Kushen, ‘Surrender of Fugitives to the War Crimes Tribunals for Yugoslavia and Rwanda: Squaring International Legal Obligations with the US Constitution’, (1996) 7 Criminal Law Forum 561.

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said that while the Prosecutor had no express obligation to do so, an inventory of properties seized during investigation should be prepared and signed by the suspect.34

Rights of suspects The Rules use the terms ‘suspect’ and ‘accused’ at this stage in the proceedings. An individual stands accused once he or she is actually indicted.35 Prior to indictment, the individual is only a ‘suspect’. The ICTY and ICTR statutes say that the Prosecutor has the power to question ‘suspects’,36 but the RPE complete this by assuring the suspect of a right to silence as well.37 Thus, no negative inference can be drawn from the suspect’s refusal to assist the Prosecutor by responding to questions. The statutes specify that if questioned, ‘a suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have suYcient means to pay for it, as well as to necessary translation into and from a language he speaks and understands’.38 The rights are further developed in common Rule 42. These provisions go considerably further than international human rights standards, which enshrine such procedural guarantees only when a person stands ‘accused’, and not when he or she is merely a ‘suspect’. In addition, common Rule 43 provides that any questioning by the Prosecutor must be audiorecorded or video-recorded, in accordance with a detailed procedure. In one case before the ICTY, a Trial Chamber excluded interviews of a suspect conducted by the Austrian police from evidence because Austrian procedural rules did not allow for a right of a suspect to be assisted by counsel at the investigation stage. Subsequent statements to the Prosecutor were admitted when it was shown that the suspect, Zdravko Mucic´, had been clearly informed of a right to have counsel present and had voluntarily waived this right.39

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Ruggiu (ICTR 97-32-I), Decision on the Defence Motion for Restitution of Personal EVects, 7 July 1998. ICTY RPE, Rule 47(H)(ii); ICTR RPE, Rule 47(H)(ii); SCSL RPE, Rule 47(H)(ii). ICTY Statute, art. 18(2); ICTR Statute, art. 17(2). ICTY RPE, Rule 42(A)(iii); ICTR RPE, Rule 42(A)(iii); SCSL RPE, Rule 42(A)(iii). ICTY Statute, art. 18(3)(f); ICTR Statute, art. 17(3)(f); SCSL Statute, art. 17(4)(f). On the role of the interpreter in international criminal law proceedings, see: Delalic´ et al. (IT-96-21-T), Decision on the Motion ex parte by the Defence of Zdravko Mucic´ Concerning the Issue of a Subpoena to an Interpreter, 8 July 1997. Delalic´ et al. (IT-96-21-T), Decision on the Motion ex parte by the Defence of Zdravko Mucic´ Concerning the Issue of a Subpoena to an Interpreter, 8 July 1997, the Trial Chamber issued the Subpoena Decision and on 2 September 1997 it issued the Exclusion Decision; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 529, 530;

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Indictment The Appeals Chamber has described the indictment as ‘the primary accusatory instrument’.40 The indictment sets out the name and particulars of the suspect, as well as ‘a concise statement of the facts of the case and of the crime with which the suspect is charged’.41 The SCSL RPE require in addition that the indictment ‘be accompanied by a Prosecutor’s case summary briefly setting out the allegations he proposes to prove in making his case’.42 The indictment ‘must plead with suYcient detail the essential aspect of the Prosecution case’.43 Where essential aspects of the case are not part of the indictment, it suVers from a material defect. But as one ICTY Trial Chamber stated, ‘an indictment is, by its very nature, necessarily concise and succinct’.44 Moreover, as a general rule, the degree of particularity required in indictments before the International Tribunal is diVerent from, and perhaps not as high as, the particularity required in domestic criminal law jurisdictions . . . The massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes – at any rate, the degree of specificity may not be as high as that called for in domestic jurisdictions.45

The trial is an adversarial contest, and the indictment is necessary to define the scope of the debate. In Kupresˇkic´, a conviction at first instance was overturned by the Appeals Chamber because facts forming the basis of the conviction had not been stated in the indictment, or in the pre-trial brief, or in the opening statement by the Prosecutor.46 The Trial Chamber did not clarify

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Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 63; Musema (ICTR-9613-T), Judgment and Sentence, 27 January 2000, para. 95, fn. 35. Common Rule 42(B) specifies that questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived the right to counsel. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 114. ICTY RPE, Rule 47(C); ICTR RPE, Rule 47(C). Also: Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 12. See: Michael J. Keegan and Daryl A. Mundis, ‘Legal Requirements for Indictments’, in Richard May et al., eds., Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, The Hague: Kluwer Law International, 2001, pp. 123–136. SCSL RPE, Rule 47(C). Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 114. Krstic´ (IT-98-33-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 6 May 1999. Kvocˇka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, para. 17 (footnote omitted). Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, paras. 117–118.

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the significance of these facts during the trial, leaving the accused in a situation where the ‘right to prepare their defence was seriously infringed’. This ‘rendered unfair’ the trial and conviction.47 Similarly, the ICTR Appeals Chamber reversed several findings of guilt where the omission of important facts that were not pleaded in the indictment was not ‘cured’ before or during the trial.48 In Akayesu, an ICTR Trial Chamber refused to convict on the basis of superior responsibility, although the evidence showed that there was a superior–subordinate relationship between the accused and the interahamwe militia responsible for various atrocities. The indictment did not specify that such a relationship existed, however. The indictment had been amended so as to allege responsibility under article 6(3) of the Statute, but ‘in fairness to the accused’ the Trial Chamber refused to make the inference from this amendment that a superior– subordinate relationship was implicitly alleged.49 Along the same lines, the ˇ elebic´i Trial Chamber said: ‘[T]he Trial Chamber restricts itself to addressing C the specific allegations in the Indictment and therefore will not consider the other acts of wilfully causing great suVering or serious injury to body or health, and cruel treatment, for which evidence was led during trial, but which are not specifically alleged in the Indictment.’50 An ICTY Trial Chamber entered acquittals with respect to grave breaches of the Geneva Conventions because the Prosecutor had ‘failed to plead adequately the existence of an international armed conflict, which is one of the requisite jurisdictional elements for a charge based on Article 2 of the Statute’.51 An ICTR Trial Chamber considered that an indictment alleging that the accused ‘held a large number of meetings among themselves, or with others’ was vague and inadequate to support a count of conspiracy to commit genocide.52 Several judgments have insisted that the Prosecutor is required to set out the relevant material facts, but not the evidence by which such facts will be proven.53 The degree of specificity will vary depending on the nature of the case against the accused. According to the ICTR Appeals Chamber, ‘the Prosecution’s obligation to provide particulars in the indictment is at its 47 48

49 50 51 52

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Ibid., para. 122. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 59. Also, paras. 71, 79, 81, 85, 88, 91, 112, 115. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 691. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1020, 1041–1045. Simic´ et al. (IT-95-9-T), Judgment, 17 October 2003, paras. 104–120. Bagambiki et al. (ICTR-97-36-I), Decision on the Defence Motion on Defects in the Form of the Indictment, 24 September 1998, para. 11 and dispositive; Bagambiki et al. (ICTR-97-36-I), Decision on the Defence Motion for the Separation of Crimes and Trials, 30 September 1998. Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 147; Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 131.

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highest when it seeks to prove that the accused killed or harmed a specific individual’.54 If the indictment alleges that an accused personally carried out the acts underlying the crime in question, then it must identify the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed ‘with the greatest precision’.55 Many crimes of the type prosecuted by the tribunals involve atrocity on a mass scale, where it is impractical to insist upon a high degree of specificity.56 But because the identity of the victims is valuable information for preparation of the defence case, if the Prosecutor can name them she or he should do so.57 The amended Milosˇevic´ indictment concerning Kosovo, for example, lists nearly 600 individual victims, indicating their sex, the locality where they were killed and, in some cases, approximate age.58 The Milosˇevic´ indictment concerning Bosnia, however, describes the victims more generally, as ‘5 nonSerbs’, ‘48 Bosnian Muslim and/or Bosnian Croat men, women and children’, ‘4 Bosnian Muslim civilians near the market place’, etc.59 The Erdemovic´ indictment referred to the victims as ‘hundreds of Bosnian Muslim male civilians’.60 The Prosecutor may not omit material aspects of its main allegations in the Indictment so as to provide flexibility in moulding the case at trial, depending on how the evidence unfolds.61 The Appeals Chamber has warned that ‘the practice of failing to allege known material facts in an indictment is unacceptable and that it is only in exceptional cases that such a failure can be remedied’.62 Obviously, the Prosecutor may not be in a position to furnish certain details at the stage of issuance of the indictment. When these emerge subsequently, perhaps during the trial itself, the ICTY Appeals Chamber has insisted that ‘in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed’.63 The ICTY Appeals Chamber has stressed ‘that the Prosecution is expected to know its case before it goes to trial. It is

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57 58 59 60 61

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Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 74. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 213. Kvocˇka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999. Ibid., para. 90. Milosˇevic´ et al. (IT-99-37-PT), Second Amended Indictment, 16 October 2001. Milosˇevic´ (IT-01-51-I), Indictment, 22 November 2001. Erdemovic´ (IT-96-22), Indictment, 22 May 1996, para. 12. Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, paras. 301–303; Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, paras. 24–125, 469, 470. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 159. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 92.

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not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.’64 The Appeals Chamber has not excluded the possibility that ‘in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.’65 Nor is it suYcient for the Prosecutor to argue that lacunae in the indictment are cured by the provision of information to the defence, for example in the form of witness statements, as part of the pre-trial disclosure process.66 The ICTY Appeals Chamber has held that the indictment must also clarify the basis of liability on which the Prosecutor intends to build his or her case.67 As a minimum, the Prosecutor must specify not only whether the individual is charged on the basis of actual perpetration (ICTY Statute, art. 7(1), ICTR Statute, art. 6(1), SCSL Statute, art. 6(1)) or superior responsibility (ICTY Statute, art. 7(3), ICTR Statute, art. 6(3), SCSL Statute, art. 6(3)), but in the case of actual perpetration the indictment must specify the forms of liability, both explicit (planning, instigation, ordering, commission, aiding and abetting) and implicit (joint criminal enterprise). If ‘commission’ is alleged, the indictment must clarify whether this term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The ICTY Appeals Chamber has said that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment – for instance in a pre-trial brief – the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged.68

Recent appellate decisions have put this more unequivocally: ‘[T]he indictment should clearly indicate which form of joint criminal enterprise is being alleged.’69 The Appeals Chamber will not, however, overturn a conviction

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65 Ibid. Ibid., para. 114. Brdanin et al. (IT-99-36-PT), Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 62. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 138. Ibid., para. 138. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 28.

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based on a mode of liability that was not set out in the indictment, to the extent that the trial record shows that the accused was given timely, clear and consistent information, detailing the factual basis of the charges, thereby compensating for the indictment’s failure to give proper notice of the Prosecutor’s intent to rely on joint criminal enterprise liability.70

Issuance of the indictment The indictment is submitted by the Prosecutor to the Registrar, who organises the subsequent proceedings. At the ICTY, since the requirement that indictments concern only ‘senior leaders’ was imposed, in 2004, the Registrar is to consult with the President, who then refers the indictment to the Bureau in order to determine whether the indictment meets this condition. If the Bureau takes the view that the indictment meets this standard, the President designates a judge for the confirmation procedure. In the alternative, the President returns the indictment to the Registrar to communicate this finding to the Prosecutor.71 At the ICTY and ICTR, the Reviewing (or Confirming72) Judge is to examine each of the counts in the indictment in order to determine if a prima facie case exists against the suspect.73 At the SCSL, the judge is to approve the indictment if satisfied that the indictment charges the suspect with a crime or crimes within the jurisdiction of the Special Court, and that the allegations in the Prosecution’s case summary would, if proven, amount to the crime or crimes as particularised in the indictment.74 Although described diVerently, these tests are probably relatively identical in practice. The procedure before the Reviewing Judge takes place ex parte, that is, the defence is not entitled to be present or to make representations.75 The Judge may confirm or dismiss the counts in the indictment.76 For example, in an ICTR case, the Reviewing Judge authorised counts with respect to the crime against humanity of murder, but refused to endorse the indictment with respect to charges of genocide.77 Dismissal of a count in an 70 71 72 73 74 75

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Ibid., para. 54. ICTY RPE, Rule 28(A) (amended 6 April 2004). ICTR RPE, Rule 61(B). ICTY RPE, Rule 47(E); ICTR RPE, Rule 47(E). SCSL RPE, Rule 47(E). Kordic´ et al. (IT-95-14/2-PT), Order Concerning Documents to be Transmitted by the Defence to the Judge Reviewing the Proposed Amended Indictment, 26 August 1998; Meakic´, Sikirica (IT-95-4-PT, IT-95-8-PT), Order on the Prosecutor’s Requests for the Assignment of a Confirming Judge, 26 August 1998; Kolundzˇija (IT-95-8-I and IT-9830-PT), Decision Rejecting Prosecutor’s Request for Leave to Amend Indictments, 6 July 1999. ICTY RPE, Rule 47(F); ICTR RPE, Rule 47(F); SCSL RPE, Rule 47(F). Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999.

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indictment does not preclude the Prosecutor from resubmitting an amended indictment including the same count.78 The ruling by the Reviewing Judge not to authorise the indictment, or specific counts, is not subject to appeal.79 The ICTY and ICTR RPE also authorise the Reviewing Judge to ask the Prosecutor to provide additional materials in support of a count, and to adjourn the review procedure to allow the Prosecutor to modify the indictment.80 When issuing the indictment, the Reviewing Judge may also ‘at the request of the Prosecutor, [make] such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required’.81 Some rather creative use has been made of this provision. When Slobodan Milosˇevic´ was first indicted, in May 1999, the Reviewing Judge issued an order freezing his assets.82 He directed all United Nations Member States to make inquiries to discover whether the accused had assets located in their territory and, if so, to adopt provisional measures to freeze such assets. Judge Hunt invoked article 19(2) of the ICTY Statute as authority for the measure, and explained: In the situation where the Federal Republic of Yugoslavia has consistently, in breach of its legal obligations, ignored the Tribunal’s orders to arrest persons who have been indicted to stand trial before the Tribunal, and who are living within its territory, and where the Tribunal has no police force of its own to execute its warrants, I accept that it is of the utmost importance that every permissible step be taken which will assist in eVecting the arrest of those who shelter in the Federal Republic of Yugoslavia or who otherwise seek to evade arrest. I agree that the orders sought should be made in this case.83

But when the SCSL Prosecutor sought a similar order freezing the assets of accused Sam Hinga Norman, Judge Bankole Thompson dismissed the application. Judge Thompson referred to Judge Hunt’s order in Milosˇevic´, but did not follow the same reasoning: 78

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ICTY RPE, Rule 47(I); SCSL RPE, Rule 47(I); SCSL RPE, Rule 47(I). The ICTY and ICTR provisions specify that this must be supported by additional evidence. Bagosora et al. (ICTR-98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste Bagosora and Twenty-eight Others, 8 June 1998, paras. 32–33. ICTY RPE, Rule 47(F); ICTR RPE, Rule 47(F). ICTY Statute, art. 19(2); ICTR Statute, art. 18(2); SCSL RPE, Rule 47(H). Pursuant to ICTY RPE and ICTR RPE Rule 61(D), a Trial Chamber, when issuing an international arrest warrant, may order a State or States to adopt provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties. Milosˇevic´ et al. (IT-99-37-I), Decision on Review of Indictment and Application for Consequential Orders, 24 May 1999, para. 29. See: Michael P. Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’, (2000) 49 DePaul Law Review 925.

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What, then, should be the applicable test? In my considered view, the proper test to be applied in determining whether or not to grant an application by the police or the Prosecution to freeze assets in the bank account of a person charged with crime pending trial is whether there is clear and convincing evidence that the targeted assets have a nexus with criminal conduct or were otherwise illegally acquired. What is ‘clear and convincing evidence’ depends on the particular facts and circumstances of each case. The targeted property must be specifically identifiable as a product of criminality or illegality. Neither probable cause nor mere suspicion or speculation will suYce.84

Judge Thompson did not insist that the nexus with criminality or illegality involve a crime within the jurisdiction of the Court, although this seems self-evident. In principle, the indictment is a public document,85 and can be readily consulted on the websites of the three tribunals. In exceptional circumstances, a judge or a Trial Chamber may ‘order the non-disclosure to the public of any documents or information until further order’, and even order that the indictment itself remain confidential, where this is ‘in the interests of justice’, or to give eVect to a provision of the Rules or to protect confidential information.86 The judge who confirms the indictment may also order that there be no public disclosure of the indictment until it is served on the accused.87 These are the famous and controversial ‘sealed indictments’. In December 1998, Russian Foreign Minister Igor Ivanov expressed ‘serious preoccupations’ about the use of secret indictments, complaining that they discouraged ‘voluntary cooperation’ with the ICTY and at the same time denied indicted persons the right to surrender themselves. One person taken into custody on this basis, Slavko Dokmanovic´, argued that his arrest was illegal because of the secret nature of the indictment. Three accused had been indicted publicly for the Vukovar hospital massacre, but the name of Dokmanovic´ had been added in a confidential amendment. He had been lured from his residence in Serbia to neighbouring Eastern Slavonia, where he was taken by surprise and arrested by United Nations forces. An ICTY Trial Chamber rejected the argument, noting that the Statute or the Rules did not require disclosure of the indictment, and that Yugoslavia’s history of non-compliance with warrants issued by the Tribunal justified such measures.88

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Norman et al. (SCSL-04-14-PT), Norman – Decision on Inter Partes Motion by Prosecution to Freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank (SL) Limited or at any other Bank in Sierra Leone, 19 April 2004, para. 13. ICTY RPE, Rule 52; ICTR RPE, Rule 52; SCSL RPE, Rule 52(D). ICTY RPE, Rule 53; ICTR RPE, Rule 53; SCSL RPE, Rule 53. ICTY RPE, Rule 53(B); ICTR RPE, Rule 53(B); SCSL RPE, Rule 53(B). Dokmanovic´ (IT-95-13a-T), 22 October 1997.

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A policy of sealing indictments until arrest of the suspect became relatively systematic in the mid-1990s at the ICTY.89 Prosecutor Louise Arbour initiated the practice in 1996 when confronted with the failure of States in the region to assist the Tribunal in apprehending suspects. She said that with sealed indictments the ICTY was able to ‘marginally improve’ its attempts at arrests.90 In 2000, Prosecutor Carla Del Ponte indictated that sealed indictments were being issued systematically.91 However, the practice was abandoned in 2002, when it became apparent that publicising indictments seemed to prompt accused persons to surrender.92 Since then, the Prosecutor will keep indictments sealed only ‘when she is not satisfied that the States responsible for the apprehension of the accused are not in a position to promptly arrest and surrender the accused to the Tribunal’.93 Liberian President Charles Taylor was the subject of a sealed indictment, whose existence was only made public by the Prosecutor himself, when he publicly called upon Ghana to arrest the accused. In fact, he may have lacked the authority to make the indictment public and, arguably, violated the confidentiality order of the Reviewing Judge.

Joinder of crimes Two or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and if the crimes in question were committed by the same accused.94 Rule 2 defines ‘transaction’ as ‘[a] number of acts or omissions whether occurring as one event or a number of events, at the same or diVerent locations and being part of a common scheme, strategy or plan’.95 In an extensive review of both international and national practice in this area, Judge Shahabuddeen of the ICTY Appeals Chamber 89

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Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) 93 American Journal of International Law 57, at p. 74. Louise Arbour, ‘The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results’, (1999) 3 Hofstra Law and Policy Symposium 37, at p. 39. But more recently, she has written that the sealed indictments policy was ‘critical’ to the operations of the ICTY at the time: Louise Arbour, ‘The Crucial Years’, (2004) 2 Journal of International Criminal Justice 396, at p. 397. ‘Comments on the Report of the Expert Group to Conduct a Review of the EVective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda’, UN Doc. A/54/850, p. 15. Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, para. 216. Since the policy change, indictments are often still kept under seal for a period of a few weeks following their issuance: e.g., Prlic´ (IT-04-74-I), Indictment, 4 March 2004; Hadzˇic´ (IT-04-75-I), Indictment, 4 June 2004. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 233. ICTY RPE, Rule 49; ICTR RPE, Rule 49; SCSL RPE, Rule 49. See also: Ntabakuze et al. (ICTR-97-34-I), Decision on the Defence Motion Requesting an Order for Separate Trials, 30 September 1998.

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noted that Rule 49 was based on the ‘same transaction’ test used in the federal justice system of the United States of America. He said that ‘[a]dditional charges must bear a reasonable relationship to the matrix of facts involved in the original charge’, recognising ‘both the convenience to each side of trying several charges together and the injustice which might enure to the accused if he was required to answer unrelated charges at the same time’. For Judge Shahabuddeen, ‘the question is whether all the counts, old and new, represent interrelated parts of a particular criminal episode’, but it is ‘not necessary for all the facts to be identical’ and that it was enough if the new charges could not ‘be alleged but for the facts which g[a]ve rise to the old’.96 In Milosˇevic´, an ICTY Trial Chamber denied the Prosecutor’s motion to unite three distinct indictments, each referring to separate conflicts in Kosovo, Croatia and Bosnia and Herzegovina. It said that the alleged nexus between the diVerent conflicts was ‘too nebulous to point to the existence of ‘‘a common scheme, strategy or plan’’ required for the ‘‘same transaction’’’.97 The ruling was overturned by the Appeals Chamber, which said that ‘[a] joint criminal enterprise to remove forcibly the majority of non-Serb population from areas which the Serb authorities wished to establish or to maintain as Serbian controlled areas by the commission of the crimes charged remains the same transaction notwithstanding the fact that it is put into eVect from time to time and over a long period of time as required’.98 The Appeals Chamber noted that ‘if evidence were to be admitted in the Kosovo trial which would be prejudicial to the accused in the Croatia and Bosnia trial, the members of the Trial Chamber as professional judges would be able to exclude that prejudicial evidence from their minds when they came to determine the issues in the Croatia and Bosnia trial’.99 To a very large extent, however, the Milosˇevic´ prosecution has proceeded in phases, almost as if there were separate indictments for the diVerent conflicts. The Statute and the Rules are silent on what is called ‘cumulative charging’. Cumulative charging consists of indictments for several diVerent crimes within the subject-matter jurisdiction of the tribunals, but with respect to the same criminal act. For example, killing may be prosecuted as genocide, crimes against humanity and war crimes, and the Prosecutor may opt to include all three of these crimes in the indictment. According to the Appeals Chamber, ‘[c]umulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine 96 97

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Kovacˇevic´ (IT-97-24-AR73), Separate Opinion of Judge Shahabuddeen, 2 July 1998. Milosˇevic´ (IT-99-37-PT, IT-01-50-PT and IT-01-51-PT), Decision on Prosecutor’s Motion for Joinder, 13 December 2001. Milosˇevic´ (IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73), Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002. Ibid.

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to a certainty which of the charges brought against an accused will be proven. The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the suYciency of the evidence.’100 This is not considered to violate the rule against double jeopardy.101 Of course, the matter is reviewed at the conviction stage, when special rules apply to multiple convictions based on the same facts.102 Cumulative charging has certainly lengthened the trials considerably. Most of the acts that have been the basis of trials at the ICTY and ICTR can be described as both crimes against humanity and war crimes. Enormous amounts of time and resources have been devoted to debates about the fine points of liability for war crimes, when a case of crimes against humanity was already made out. Similarly, often the Prosecutor has also charged alternative modes of liability, where the accused was charged as both a principal perpetrator or accomplice and as a superior, in accordance with the doctrine of superior or command responsibility. In all but one case,103 a conviction was obtained as a principal perpetrator, obviating the need for the charge of superior responsibility. But the damage to the Tribunal, in terms of the complexity of the legal debate and the corresponding lengthening of the proceedings, had already been done.

Joinder of accused Persons accused of the same or diVerent crimes committed in the course of the same transaction may be jointly charged and tried.104 If the Prosecutor chooses to proceed by separate indictment, he or she may later seek to have the cases joined for purposes of the trial.105 In determining whether an indictment should be joined, the tribunals consider whether the acts of the accused are connected to material elements of a criminal act. These criminal acts must be capable of specific determination in time and in space, and they must illustrate the existence of a common scheme, strategy or plan. They also assess whether joinder would be in the interests of justice.106 In this respect,

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Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 400. Also: Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 863–864; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1089; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 117. Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras. 8–10. See below at pp. 434–438. Strugar (IT-01-42), Judgment, 31 January 2005. ICTY RPE, Rule 48; ICTR RPE, Rule 48; SCSL RPE, Rule 48(A). ICTR RPE, Rule 48bis; SCSL RPE, Rule 48(B). See Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, p. 16. Bagosora et al. (ICTR-96-7), Decision on the Prosecutor’s Motion for Joinder, 29 June 2000, paras. 145–156.

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judges consider implications with respect to resources, costs and time,107 the requirement of transparent justice that there be consistency and fairness, the public interest in avoiding discrepancies and inconsistencies that result inevitably from separate trials,108 and whether joinder would allow for a more consistent and detailed presentation of evidence, and for better protection of the victims’ and witnesses’ physical and mental safety by reducing the number of times they must testify.109 These concerns must be balanced against the right of each individual accused to trial without delay.110 The first great war crimes trial, the Nuremberg trial of the major war criminals held by the International Military Tribunal, involved twenty-two defendants but only one indictment. The specific oVences alleged often had only the most tenuous connections with each other, but the cases were united in that they involved the leaders of the Nazi regime. Subsequent post-Second World War trials were grouped thematically, and again grouped large numbers of defendants in each case. Initially, the ICTY did not seem to have a strategic approach to the type of defendant it would prosecute, and its first important trial, of Dusˇko Tadic´, concerned an insignificant thug. Later, there were more serious attempts to link defendants in multiple prosecutions, especially at the ICTR. The RPE were amended to allow joinder in this way, all with a view to expediting the proceedings,111 although it is not at all obvious that this was the result. The SCSL took a thematic approach from the very beginning, planning two main trials, each focusing on one of the combatant groups. Although the accused were initially indicted separately, the indictments were later joined. The motions were granted in part, the Court ordering that there be three separate trials, each one involving three accused persons.112 In one of the applications for joinder of indictments, the SCSL Trial Chamber noted that the proposal for joint trial was based upon the ‘principle of collective criminal responsibility’ that it said was implicit in the terms of 107

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Kanyabashi (ICTR-96-15-A), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of the Trial Chamber, 3 June 1999, para. 31. Delalic´ et al. (IT-96-21-T), Decision on the Motion by the Defendant Delalic´ Requesting Procedures for Final Determination of the Charges Against Him, 1 July 1998, para. 35. Kayishema (ICTR-95-1-T), Decision on the Joinder of the Accused and Setting the Date for Trial, 6 November 1996, p. 3. Bagosora et al. (ICTR-96-7), Decision on the Prosecutor’s Motion for Joinder, 29 June 2000, paras. 145–156; Norman et al. (SCSL-03-08-PT, SCSL-03-011-PT, SCSL-03-12PT), Decision and Order on Prosecution Motions for Joinder, 27 January 2004, para. 18. Rule 48bis was added to the ICTR RPE at the ninth plenary, held on 30 November 2000. See: Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 73. Sesay et al. (SCSL-03-05-PT, SCSL-03-06-PT, SCSL-03-07-PT, SCSL-03-09-PT, SCSL03-10-PT, SCSL-03-13-PT), Decision and Order on Prosecution Motions for Joinder, 27 January 2004; Norman et al. (SCSL-03-08-PT, SCSL-03-011-PT, SCSL-03-12-PT), Decision and Order on Prosecution Motions for Joinder, 27 January 2004.

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article 6(1) of the Statute.113 It said that regardless of whether the accused were indicted together or not, where factual allegations in the indictment support the Prosecutor’s theory of a common transaction and where there is no material prejudice to the accused, joinder may be granted.114 After obtaining a joint indictment, circumstances may lead the Prosecutor to change his or her mind and request severance. According to common Rule 82(B), a Trial Chamber may order that persons accused jointly be tried separately ‘if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice’.115 When Rwamakuba was jointly charged before the ICTR, his initial challenge seeking severance was dismissed.116 Subsequently, the Prosecutor ‘re-evaluated its position on severance in view of the recent results of singleaccused trials, which have been completed in a more timely and eYcient manner’.117 The defence contested the motion. The Trial Chamber, after concluding that the defence had failed to show that any improper motive was behind the request for severance, accorded considerable deference to the Prosecutor’s assessment. In accordance with Rule 82, the Trial Chamber may order that persons charged jointly should be tried separately ‘if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice’.118 There is probably a presumption that joining trials will introduce economies of scale and expedite proceedings, and that this is therefore in the interests of justice.119 Moreover, ‘[n]othing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts. The only sure way of achieving such consistency is to have both accused tried before the

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Norman et al. (SCSL-03-08-PT, SCSL-03-011-PT, SCSL-03-12-PT), Decision and Order on Prosecution Motions for Joinder, 27 January 2004, para. 14. Ibid., para. 17. ICTY RPE, Rule 82(B); ICTR RPE, Rule 82(B); SCSL RPE, Rule 82(B). Rwamakuba (ICTR-98-44-T), Decision on Andre´ Rwamakuba’s Motion for Severance, 12 December 2000. Karemera et al. (ICTR-98-44-PT), Decision on Severance of Andre´ Rwamakuba and for Leave to File Amended Indictment, Articles 6, 11, 12 quarter 18 and 20 of the Statute; RPE, Rules 47, 50 and 82(B), 14 February 2005, para. 6. See: Richard May and Marieke Wierda, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, (1999) 37 Columbia Journal of Transnational Law 725, at p. 741; Murphy, ‘Progress and Jurisprudence of the ICTY’, at pp. 79–80. Kunarac et al. (IT-96-23-PT), Decision on Joinder of Trials, 9 February 2000; Kvocˇka et al. (IT-98-30-T and IT-95-4-PT), Decision on Prosecution Motion to Join Trials, 14 April 2000; Kordic´ et al. (IT-95-14/2-PT), Decision on Accused Mario Cˇerkez’s Application for Separate Trial, 7 December 1998, paras. 10–11.

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same Trial Chamber and on the same evidence.’120 In cases dealing with ‘crimes committed in the course of the same transaction’ in the Omarska camp, between 31 May 1992 and the end of that year, an ICTY Trial Chamber said a joint trial would accelerate the trial of one of the accused without prejudice to his or to the other accused’s rights of defence, avoid duplication of evidence and minimise hardship caused to witnesses. This, said the Trial Chamber, would best serve the interests of justice.121 Trial Chambers have held that although joint defendants may invoke separate and even contradictory defences, professional judges are able to consider these issues without prejudice to individual defendants.122

Amendment of the indictment The Prosecutor may amend the indictment at any stage of the proceedings. National justice systems vary considerably in their approach to amendment of indictments, but all of them permit the practice.123 At the international tribunals, permission or leave to do so is obtained from a judge until the case is assigned to a Trial Chamber, and subsequently by the assigned Trial Chamber or one of its members.124 Unlike the indictment procedure, which takes place ex parte, if the accused has already appeared before the Tribunal, the amendment can only be authorised following an inter partes hearing.125 If new charges are added, and the accused has already entered a plea, a further appearance is necessary with respect to the new charges. Often amendments deal with essentially technical issues, such as the removal of a co-accused who has died,126 or the joinder of accused persons.127 Amendments have also been

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Brdanin et al. (IT-99-36-PT), Decision on Motions by Momir Talic´ for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 31. Kvocˇka et al. (IT-98-30-T and IT-95-4-PT), Decisions on Prosecution Motion to Join Trials, 14 April 2000. Simic´ et al. (IT-95-9-PT), Decision on Defence to Sever Defendants and Counts, 15 March 1999. Also: Barayagwiza (ICTR-97-19-I), Decision on the Request of the Defence for Severance and Separate Trial, 26 September 2000; Brdanin et al. (IT-99-36-PT), Decision on Motions by Momir Talic´ for a Separate Trial and for Leave to File a Reply, 9 March 2000. An appeal of this decision was dismissed: Brdanin et al. (IT-99-36-AR72.2), Decision on Request to Appeal, 16 May 2000. For a summary attempt to compare practice in common-law and ‘civil-law’ systems, see: Kovacˇevic´ (IT-97-24-I), Decision on Prosecutor’s Request to File an Amended Indictment, 5 March 1998, paras. 10–11. ICTY RPE, Rule 50; ICTR RPE, Rule 50; SCSL RPE, Rule 50. Brdanin et al. (IT-99-36-PT), Decision on Motion to Dismiss Indictment, 5 October 1999, paras. 21–22. Mrksic´ et al. (IT-95-13/1-PT), Order Terminating Proceedings Against Slavko Dokanovic´, 15 July 1998. Kvocˇka et al.; Kolundzˇija (IT-98-30-PT and IT-95-8-PT), Decision on Prosecutor’s Motion for Joinder, 19 October 1999.

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used to withdraw counts in an indictment.128 Amendments to remove counts are often sought, and granted, in the context of guilty plea agreements.129 Amendments have been allowed even during trials. For example, the Akayesu indictment was amended in the middle of the Prosecutor’s case so as to include counts relating to sexual violence. The Prosecutor said that the amendment had been prompted by testimony of a witness at trial, which had motivated a renewal of the investigation. According to the Prosecutor, evidence previously available had not been suYcient to implicate the accused. She said that the lack of evidence might be explained by ‘the shame that accompanies acts of sexual violence as well as insensitivity in the investigation of sexual violence’. The defence retorted that the amendments were really a response to public pressure from feminist non-governmental organisations. The ICTR Trial Chamber was unimpressed with the argument, and even noted ‘the interest shown in this issue by non-governmental organizations, which it considers as indicative of public concern over the historical exclusion of rape and other forms of sexual violence from the investigation and prosecution of war crimes. The investigation and presentation of evidence relating to sexual violence is in the interest of justice.’130 The ICTR Appeals Chamber dismissed Akayesu’s challenge to the conviction with respect to the counts in the amended indictment, although it confessed ‘that had it been in the Trial Chamber’s shoes it would have probably acted otherwise’.131 In deciding whether or not to allow amendment, the principal concern of Trial Chambers should be the danger of prejudice to the accused.132 Considerations include the right to be tried without undue delay, as well as the right to be informed in detail of the nature and cause of the charges brought.133 Factors that a Trial Chamber will weigh include ‘the ameliorating eVect of the changes on the clarity and precision of the case to be met; the diligence of the Prosecution in making the amendment in a timely manner 128 129

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Jelisic´ et al. (IT-95-10-I), Amended Indictment, 12 May 1998. ICTY RPE, Rule 62ter(i); ICTR RPE, Rule 62bis(i). See, e.g., Momir Nikolic´ (IT-02-60/1T), Decision on Motion for Dismiss Charges Against Momir Nikolic´, 12 May 2003; Serushago (ICTR-98-39-T), Decision Relating to a Plea of Guilty, 14 December 1998. On guilty plea agreements, see below at pp. 423–428. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 145. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 114. Zigiranyirazo (ICTR-2001-73-I), Decision on Prosecutor’s Request for Leave to Amend the Indictment and on Defence Urgent Motion for an Order to Disclose Supporting Material in Respect of the Prosecutor’s Motion for Leave to Amend the Indictment, 15 October 2003, para. 19; Simba (ICTR-2001-76-I), Decision on Motion to Amend Indictment, 26 January 2004, para. 7; Brdanin et al. (IT-99-36), Decision on Filing Replies, 7 June 2001, para. 3. Muhimana (ICTR-1995-1B-I), Decision on Motion for Leave to Amend Indictment, 21 January 2004, para. 10; Simba (ICTR-2001-76-I), Decision on Motion to Amend Indictment, 26 January 2004, para. 8.

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that avoids creating an unfair tactical advantage; and the likely delay or other possible prejudice to the Defence, if any, caused by the amendment’.134 In authorising an amendment that added charges based on new evidence, Judge Vorah noted that the amendment avoided the filing of a second indictment, that ‘the need for the proper administration of justice and the requirement of a fair and expeditious trial’ was met and that there was no prejudice to the rights of the accused.135 In Kovacˇevic´, an ICTY Trial Chamber refused an amendment that added several new charges and a large number of new allegations. Noting that the indictment was filed nearly a year after confirmation, and seven months after arrest of the accused, the Trial Chamber said that this amounted to an entire new case and should have been made much more promptly. Invoking the right of the accused to be informed promptly of the charges against him, the Trial Chamber said: The amendment sought is not the result of the subsequent acquisition of materials unavailable at the time of confirmation of the Indictment, nor are all the added counts covered by the factual allegations in the original Indictment. The reasons given by the Prosecution do not justify the delay in bringing this request. The fact remains that the Prosecution knew the whole case against the accused long before it was made known to the accused. The Prosecution should have made every eVort to bring the whole case against the accused before the confirming Judge, so as to avoid any impression that the case against the accused was constructed subsequent to his arrest, and to adhere to the principle of equality of arms.136

When the ICTY Appeals Chamber dismissed a charge of committing genocide but convicted Krstic´ of ‘aiding and abetting’ in genocide, the Prosecutor sought to amend the indictment during another pending trial also dealing with the Srebrenica massacre. The Trial Chamber denied the Prosecution’s motion, ‘considering that the proposed amendment at that stage of the proceedings was not in the interests of justice’.137

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Karemera et al. (ICTR-98-44-PT), Decision on Severance of Andre´ Rwamakuba and for Leave to File Amended Indictment, Articles 6, 11, 12 quarter 18 and 20 of the Statute; RPE, Rules 47, 50 and 82(B), 14 February 2005, para. 35; Bizimungu (ICTR-99-50AR50), Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004, para. 16. Kunarac (IT-96-23-PT), Order Granting Leave to File an Amended Indictment and Confirming the Amended Indictment, 19 August 1998. Kovacˇevic´ (IT-97-24-I), Decision on Prosecutor’s Request to File an Amended Indictment, 5 March 1998, para. 12. Blagojevic´ (IT-02-60-T), Decision on Prosecution’s Motion for Leave to File Fourth Amended Joinder Indictment, 10 June 2004.

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In one case, an ICTY Trial Chamber actually invited amendments, when at the conclusion of a preliminary hearing held pursuant to Rule 61 the judges suggested that the Prosecutor allege counts of genocide and rape.138 According to Richard Goldstone, the lawyers working on the indictment felt there was insuYcient evidence to justify charging Nikolic´ with gender crimes. But one of the two women judges who was then sitting on the Tribunal, Elizabeth Odio Benito, publicly exhorted the Prosecutor to include gender crimes in the indictment, on the basis of witness statements. Her colleagues agreed, and the Trial Chamber declared that it felt ‘the prosecutor may be well advised to review these statements carefully with a view to ascertaining whether to charge Dragan Nikolic´ with rapes and other forms of sexual assault, either as a crime against humanity or as grave breach or war crimes’.139 One commentator has observed that ‘the propriety of a trial chamber’s doing so (at least one that will sit in judgment on the case) is unclear’.140 It took more than four years for the Prosecutor to get around to applying for an amendment in response to the suggestions of the Trial Chamber.141 The indictment of an accused who has been transferred to the Tribunal by a State may be amended to add new charges, even if surrender or transfer was not requested on this basis. There is no rule of ‘speciality’, in contrast with the situation in inter-State extradition. The principle of specialty prevents a receiving State from prosecuting an accused for charges that were not part of the extradition agreement, unless the sending State consents. This principle has been held to be inapplicable to prosecution by the international tribunals.142 It is uncertain whether this would apply to the SCSL however, to the extent that transfer of an accused would take place consensually rather than by virtue of the Security Council resolutions that dictate cooperation with the ICTY and ICTR. Conceivably, a State might agree to transfer a suspect to the SCSL on the condition that the rule of specialty be observed. There have been no cases of transfer to the SCSL by another State.

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Withdrawal of the indictment The entire indictment may also be withdrawn, with leave of the Tribunal.143 For example, this is the practice when an accused person has died. In December 2003, the SCSL Prosecutor successfully applied to withdraw indictments against two of the more celebrated accused once he was satisfied that reports of their deaths were accurate.144 No similar action has been taken with respect to a third accused who is frequently rumoured to be dead but where the evidence of this is unclear at best.145 But in an early case, an ICTY Trial Chamber refused to authorise withdrawal of an indictment of an accused who was terminally ill.146 In some cases, indictments have been withdrawn when the Prosecutor determined that there was insuYcient evidence for a conviction,147 or that the person before the Tribunal was not in fact the one charged in the indictment.148 In the case of withdrawal of an indictment prior to trial, the Trial Chamber cannot then declare an acquittal.149 It would presumably always be possible for the Prosecutor to reindict the accused, subject to any challenge that this might constitute an abuse of process. In Kupresˇkic´, the Trial Chamber authorised withdrawal of charges, but added ‘that in the future, the Prosecution will act expeditiously on matters of such fundamental importance as the liberty of the accused’.150 Some withdrawals have been based on prosecutorial strategy. Thus, in May 1998, the ICTY decided to withdraw charges against several persons not in custody because the focus had shifted to persons who were more senior in rank and 143

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ICTY RPE, Rule 51; ICTR RPE, Rule 51; SCSL RPE, Rule 51. E.g., Rusatira (ICTR-200280-I), Decisions on the Prosecutor’s Ex Parte Application for Leave to Withdraw the Indictment, 14 August 2002. Sankoh (SCSL-03-02-PT), Withdrawal of Indictment, 8 December 2003; Bokarie (SCSL03-04-PT), Withdrawal of Indictment, 8 December 2003. Koroma (SCSL-03-03-I), Indictment, 7 March 2003. Djukic (IT-96-20-PT), Transcript, 24 April 1996. Kupresˇkic´ (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of ˇ erkez (IT-94-14/ Indictment Against Marinko Katava, 19 December 1997; Kordic´ and C 2-PT), Order on Prosecutor’s Motion for Leave to Withdraw the Indictment Against ˇ erkez (IT-94-14/2-PT), Order on ProPero Skopljak, 19 December 1997; Kordic´ and C secutor’s Motion for Leave to Withdraw the Indictment Against Ivan Sˇantic´, 19 December 1997; Rusatira (ICTR-2002-80-I), Decisions on the Prosecutor’s Ex Parte Application for Leave to Withdraw the Indictment, 14 August 2002. Lajic´ (IT-95-8-T), Order for the Withdrawal of the Charges Against the Person Named Goran Lajic´ and for his Release, 17 June 1996. The order was without prejudice to the accusations against the ‘right’ Goran Lajic´. Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999, p. 7. Kupresˇkic´ (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of Indictment Against Marinko Katava, 19 December 1997.

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in responsibility.151 The Prosecutor explained: ‘[T]his decision is not based on any lack of evidence in respect of these accused. I do not consider it feasible at this time to hold multiple separate trials for related oVences committed by perpetrators who could appropriately be tried in another judicial forum, such as a State Court.’152 When the Confirming Judge authorised charges of crimes against humanity but refused to approve charges of genocide, the Prosecutor sought withdrawal of the charges because the ‘lesser’ oVence did not justify an important investment of precious resources.153 Given that the Prosecutor’s discretion to indict an individual is virtually absolute, it seems odd that he or she should even be required to seek permission to withdraw an indictment. One ruling authorising withdrawal of the charges has said as much, suggesting that permission to withdraw an indictment will be granted as of right.154 It is diYcult to conceive of what would happen if such a motion were refused. How could the Prosecutor be forced to proceed? What evidence could he or she be forced to produce?155 Withdrawal of a charge terminates the proceedings, and entails the immediate and unconditional release of the accused. After granting the Prosecutor’s request to withdraw the indictment, an ICTR Trial Chamber held that it was without authority to order that the accused be released to the custody of a State for purposes of prosecution by national authorities.156 Subsequent amendments to the RPE allow the tribunals to refer cases to national authorities.157 Under the procedure, according to the title of Rule 11 bis, it is the indictment that is referred to the national tribunal. However, the national legal systems will almost surely elect to proceed by virtue of a new indictment, issued in their own language and according to their own substantive criminal law and criminal procedure. In such a case, the indictment of

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On 5 and 8 May 1998, charges were withdrawn against Zdravko Govedarica, Goran Gruban, Predag Kostic´, Nedeljko Paspalj, Milan Pavlic´, Milutin Popovic´, Drazˇenko Predojevic´, Zˇeljko Savic´, Mirko Babic´, Nikica Janjic´ and Dragomir Sˇaponja. ‘Statement by the Prosecutor Following the Withdrawal of the Charges Against 14 Accused’, ICTY Doc. CC/PIU/314-E (8 May 1998). Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999. Ibid., p. 6. Such a situation is contemplated by the Rome Statute. If the Prosecutor decides not to proceed with a case that has been referred by a State party or by the Security Council, he may be required to justify this exercise of discretion before the Pre-Trial Chamber. The consequences of a refusal by the Pre-Trial Chamber to confirm the Prosecutor’s decision are unclear. See: Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 53(3). Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999, p. 7. ICTY RPE, Rule 11bis; ICTR RPE, Rule 11bis.

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the International Tribunal would nevertheless remain in force, although it would not be the basis of prosecution. It would seem proper that upon completion of the national proceedings to the satisfaction of the Prosecutor, she would then request withdrawal of the indictment.158

Arrest and provisional detention ‘Arrest’ is defined in the ICTY Rules of Procedure and Evidence as ‘[t]he act of taking a suspect or an accused into custody pursuant to a warrant of arrest or under Rule 40’.159 There are, accordingly, two modes of arrest. The first takes place pursuant to a warrant, which will normally be issued by the Reviewing Judge who authorises the indictment, in accordance with a provision common to the ICTY and ICTR statutes.160 The SCSL Statute says nothing about arrest, and the matter is governed exclusively by the RPE. The second mode, known as ‘provisional arrest’, involves arrest at the initiative of the Prosecutor alone, without any involvement of the judges of the Tribunal. The Prosecutor is empowered ‘to take all necessary measures to prevent the escape of a suspect or an accused’. This procedure, provided for in Rule 40 of the RPE, finds no basis in the statutes. Challenges to the legality of Rule 40 based on the argument that it goes beyond the terms of the statutes, which only contemplate arrest warrants authorised by a judge, have been dismissed.161 Although a suspect arrested pursuant to Rule 40 is not yet within the custody of the Tribunal, time spent in detention on this basis will be credited eventually, in the event of conviction.162 The RPE do not indicate the manner and method in which an arrest of a suspect is to be eVected by a cooperating State under Rule 40 and do not, for example, prescribe the suspect’s right to be promptly informed of the reasons for arrest or to be brought before a judge. As the ICTY Appeals Chamber has observed, ‘[i]t is for the requested State to decide how to implement its obligations under international law’.163 But the Appeals Chamber has also insisted that cooperating States must respect their obligations under customary 158

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Subject, of course, to the non bis in idem principle: ICTY Statute, art. 10(2); ICTR Statute, art. 9(2). ICTY RPE, Rule 2. The text of ICTR RPE, Rule 2 and SCSL RPE, Rule 2 is slightly diVerent, adding the words ‘apprehending and’ before ‘taking’. ICTY Statute, art. 19; ICTR Statute, art. 18. Barayagwiza (ICTR-97-19-I), Decision on the Extremely Urgent Motion by the Defence for Orders to Review and/or Nullify the Arrest and Provisional Detention of the Suspect, 17 November 1998, p. 6; Ntabakuze (ICTR-97-34-T), Decision on the Defence Motion for Annulment of Proceedings, Release and Return of Personal Items and Documents, 25 September 1998. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1187–1289. Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 219.

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international law, as well as applicable treaties.164 Because detention is carried out at the initiative of the Prosecutor, she has a duty of due diligence towards the accused from the outset with respect to the treatment of the suspect by the authorities of the cooperating State. Accordingly, [t]he request to the authorities of the cooperating State has to include a notification to the judiciary, or at least, by way of the Tribunal’s primacy, a clause reminding the national authorities to promptly bring the suspect before a domestic Judge in order to ensure that the apprehended person’s rights are safeguarded by a Judge of the requested State as outlined above. In addition, the Prosecution must notify the Tribunal in order to enable a Judge to furnish the cooperating State with a provisional arrest warrant and transfer order.165

The ICTY Rules were amended, in 1996,166 so as to limit the period of time during which a suspect may be detained without being indicted under the ‘provisional arrest’ provision.167 Pursuant to the amended Rule, a judge may order the transfer and provisional detention of a suspect if the Prosecutor has requested a State to arrest the suspect provisionally, in accordance with Rule 40, or if the suspect is otherwise detained by State authorities. The judge must consider that there is a ‘reliable and consistent body of material which tends to show that the suspect may have committed a crime over which the Tribunal has jurisdiction’, and that provisional detention is necessary to prevent the escape of the suspect, injury to or intimidation of a victim or witness or the destruction of evidence. Such provisional detention of a suspect can only be ordered for a period of thirty days from the date of transfer of the suspect to the seat of the Tribunal, after which it can be renewed following a hearing at which the suspect is represented. Although in principle an accused who is brought to the Tribunal must appear ‘without delay’, it may be that the Prosecutor is not yet prepared to present the indictment, and that further investigations are underway. The Rules allow the provisional detention to be extended where this is warranted by ‘special circumstances’ and ‘the needs of the investigation’. In one case, the ICTY Prosecutor invoked a ‘breakdown of structures’ between the Prosecutor’s oYces in The Hague, Arusha and Kigali which, ‘to some extent’, aVected the investigations. Judge Mse found it ‘diYcult to accept that lack of administrative coordination or communication may justify an extension of a

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suspect’s detention under the Statute and the Rules’, but he eventually agreed to a short extension of provisional detention.168 A controversial episode of application of Rule 40bis arose at the ICTR, when the Prosecutor requested that the Government of Cameroon arrest suspects who were in that country. In fact, Jean-Bosco Barayagwiza had already been arrested pursuant to requests from both Rwanda and Belgium, when Prosecutor Richard Goldstone, acting pursuant to Rule 40, asked that he be detained. Cameroon apparently complied, but a month later the Prosecutor said he was no longer interested in the suspect, who had not been indicted at that point. Several months later, when the Yaounde´ courts decided to deny Rwanda’s extradition request and release Barayagwiza, Prosecutor Louise Arbour filed a new request under Rule 40, and asked that the suspect be transferred to the Tribunal in Arusha. Through no real fault of the Prosecutor, Barayagwiza was not actually transferred for several months. When he did get to Arusha, he was detained for a period well in excess of thirty days before his situation was regularised. When Barayagwiza challenged these proceedings, he was initially successful before the Appeals Chamber, which considered the entire procedure to be fraught with abuse, but the matter was reconsidered and the remedy of release was judged to be excessive in the circumstances.169 Most arrests are eVected by the authorities of States in execution of an arrest warrant issued by a judge with respect to a suspect who has already been indicted. An arrest warrant must be signed by a judge, and include an order for the prompt transfer of the accused to the Tribunal upon the arrest of the accused. The Registrar is responsible for transmitting a certified copy of the warrant to the person or authorities to whom it is addressed, including the national authorities of a State in whose territory or under whose jurisdiction the accused resides, or was last known to be, or is believed by the Registrar to be likely to be found.170 Frequently, representatives of the OYce of the Prosecutor will be present when arrests are carried out. The ICTY and ICTR statutes require States to cooperate with the tribunals. More specifically, they are to ‘comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including . . . the arrest or detention of persons [and] the surrender or the transfer of the accused to the International Tribunal’.171 The arrest and surrender provisions of the SCSL are

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Renzaho (ICTR-97-31-DP), Decision on the Prosecutor’s Request for the Extension of the Suspect’s Detention (Rule 40bis (F) of the Rules of Procedure and Evidence), 4 November 2002, para. 7. Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999; Barayagwiza (ICTR-9719-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. ICTY RPE, Rule 55; ICTR RPE, Rule 55; SCSL RPE, Rule 55. ICTY Statute, art. 29; ICTR Statute, art. 28.

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governed by the enabling legislation in that country. The SCSL has no authority to require arrest and surrender outside of Sierra Leone, although nothing prevents a State from agreeing to cooperate with the Court. In an early case, President Cassese said: ‘The Republic of Croatia is undisputedly in breach of an international obligation incumbent on it.’ Croatia was refusing to arrest General Blasˇkic´, arguing that it did not yet have national legislation authorising cooperation with the ICTY. Judge Cassese noted abundant authority in international law holding that States cannot invoke the shortcomings of their own national law for failure to observe their international obligations.172 Security Council resolutions adopted subsequent to the creation of the tribunals have reminded States of their obligations to cooperate. Many States have been fully compliant, and have dutifully enacted national legislation to assist in the process. Occasionally, accused persons have temporarily resisted surrender to the tribunals through legal challenges before national courts,173 but there are no examples of the process being frustrated permanently in this way. Some States have been rather defiant. In the early days of the ICTR, Kenya declared its resistance to requests for cooperation, but later withdrew from such an extreme position. Several arrests were subsequently conducted within Kenya by national authorities, with the assistance of agents from the OYce of the Prosecutor. Neither Croatia nor Serbia had a good record of cooperation,174 despite undertakings they had made at Dayton.175 Subsequent political changes within both countries softened the position. Because of the significant presence of peacekeeping forces within Bosnia and Herzegovina after the Dayton Peace Agreement of November–December 1995, there have been repeated calls for the NATO Implementation Force (IFOR), subsequently renamed the NATO Stabilization Force (SFOR), to

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Blasˇkic´ (IT-95-14-IT), Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, 3 April 1996, para. 7. In re Ntakirutimana, 998 F.Supp. 1038 (SD TX, 1997); Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999), cert. denied, 528 US 1135 (2000). For a full discussion of attempts to pressure governments in the region to cooperate, see: Scharf, ‘Tools for Enforcing International Criminal Justice’. Article IX of the General Framework Agreement and Article XIII(4) of the Agreement on Human Rights required Bosnia, Croatia, and the Federal Republic of Yugoslavia to cooperate fully with and give unrestricted access to the ICTY. The requirement was extended to the Republika Srpska by Article IV of the Agreement on Civilian Implementation. Article IX(1) of the Constitution of Bosnia prohibits any person who has been indicted by and has failed to comply with an order to appear before the Tribunal from holding any appointive, elective or other public oYce in the territory of Bosnia. In addition, it requires all competent authorities in Bosnia to cooperate with and to grant unrestricted access to the Tribunal.

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carry out arrests of suspects. For some time it was contended that while IFOR and SFOR might have the authority to eVect arrests, they were under no duty to do so.176 The resistance within NATO was not only based on technical legal arguments. There was also ‘a perception that priority should be military disengagement’ and that ‘the tenuous stability which had been created could be undermined if NATO became entangled in arresting indicted war criminals’.177 In mid-1997, NATO policy underwent a change, and troops of some participating countries, notably the United Kingdom and the United States, became more active in eVecting arrests.178 Defendants have challenged their arrests as being illegal, and sought release as a remedy.179 ICTY defendant Dragan Nikolic´ alleged that he had been abducted from Serbia and Montenegro by SFOR troops, in cooperation with personnel from the OYce of the Prosecutor, and that this was a violation both of State sovereignty and of his own human rights. He claimed that the Tribunal was without jurisdiction to prosecute him as a result. The argument is not a novel one, and was unsuccessfully raised in the historic Eichmann prosecution,180 to which the ICTY Appeals Chamber referred in its ruling. The Appeals Chamber felt that the ‘legitimate expectation’ that persons accused of genocide, war crimes and crimes against humanity be brought to justice outweighed the abuse involved in illegal arrests.181 However, the Appeals Chamber did not overrule, and in fact specifically reaYrmed, its previous ruling in Barayagwiza that it could refuse to exercise its jurisdiction in cases ‘where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity’.182 The arrest of Slavko Dokmanovic´ in June 1997 was eVected when he was lured or tricked by ICTY investigators. Dokmanovic´ resided in the Federal Republic of Yugoslavia, which was not cooperating with the Tribunal at the time. In the course of eVorts to obtain compensation for loss of his personal property in Croatia, he agreed to cross the border for a meeting with the

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Discussed in Scharf, ‘Tools for Enforcing International Criminal Justice’, at pp. 975–978. Also: Mikas Kalinauskas, ‘The Use of International Military Force in Arresting War Criminals: The Lessons of the International Criminal Tribunal for the Former Yugoslavia’, (2002) 50 University of Kansas Law Review 383. Payam Akhavan, cited in Scharf, ‘Tools for Enforcing International Criminal Justice’, at p. 957. Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, para. 2. E.g., Dokmanovic´ (IT-95-13a-PT), Decision on the Motion for Release by the Accused Slavko Dokmanovic´, 22 October 1997. A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), paras. 41–52. Dragan Nikolic´ (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, para. 25. Also: Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 21–32. Ibid., para. 29.

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United Nations Transitional Administration in Eastern Slavonia (UNTAES) Transitional Administrator in Croatia. Dokmanovic´ was taken to the UNTAES base, handcuVed, informed of his rights, and flown to The Hague.183 Dokmanovic´ challenged his arrest as illegal, saying that only the authorities of the Federal Republic of Yugoslavia were empowered to arrest him, and that he had in eVect been kidnapped. The Trial Chamber dismissed the challenge, finding support in national practice for the luring of suspects in order to eVect arrest, and concluding that this was not an abuse of process.184 When an arrest warrant cannot be executed, Rule 61 provides a special procedure at which evidence may be produced and witnesses called. The accused is, of course, not present at the hearing, and may not even be represented by counsel.185 At the conclusion of the hearing, the Trial Chamber may determine that ‘there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment’. Rule 61 was adopted as a compromise intended to assuage critics from continental European justice systems who charged that the lack of an in absentia procedure would seriously hamper the work of the Tribunal. Rule 61 proceedings do, in many respects, resemble in absentia trials, which are common in some criminal justice systems, although judges have regularly denied the connection.186 The main distinction is that a Rule 61 proceeding does not pronounce a sentence. In the early years of the ICTY, several hearings were held pursuant to Rule 61, but the practice was discontinued once the Tribunal had defendants in custody and the suggestion that it could only function if it could conduct in absentia hearings no longer made any sense.187

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Murphy, ‘Progress and Jurisprudence of the ICTY’, at pp. 75–76. Dokmanovic´ (No. IT-95-13a-PT), Decision on the Motion for Release by the Accused Slavko Dokmanovic´, 22 October 1997. Leave to appeal was denied by a three-judge panel of the Appeals Chamber on 11 November 1997. Karadzˇic´ et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 4. But see Rajic´ (IT95-12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996; Rajic´ (IT-95-12-R61), Separate Opinion of Judge Sidhwa, paras. 10–16. Rajic´ (IT-95-12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996: ‘A Rule 61 proceeding is not a trial in absentia. There is no finding of guilt in this proceeding.’ Dragan Nikolic´ (IT-94-2-R61), Review of Indictment Pursuant to Rule 61, 20 October 1995: ‘The Rule 61 procedure . . . cannot be considered a trial in absentia: it does not culminate in a verdict nor does it deprive the accused of the right to contest in person the charges brought against him before the Tribunal.’ See: Faı¨za Patel King, ‘Public Disclosure in Rule 61 Proceedings Before the International Criminal Tribunal for the Former Yugoslavia’, (1997) 29 New York University Journal of International Law and Policy 523; Mark ThieroV and Edward A. Amley Jr, ‘Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the

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Reflecting on the procedure, Louise Arbour has said it was ‘detrimental’ to the work of the Prosecutor.188 Neither the ICTR nor the SCSL ever showed any interest in Rule 61 proceedings, and the concept was not reproduced in the Rome Statute of the International Criminal Court. It is now little more than an historical curiosity, although some of the rulings made in Rule 61 hearings are still occasionally cited as authority.189

Deferral In accordance with an express provision entitled ‘[c]oncurrent jurisdiction’ in their statutes, the three tribunals may ‘at any stage of the procedure’ request that national proceedings against an accused be deferred in their favour.190 The power of the tribunals to insist upon deferral of cases pending before national courts had some significance at the beginning of their operations. Both the ICTY and ICTR used deferral to obtain jurisdiction over their first suspects. It soon became relatively insignificant, however, as oVenders were either captured before national proceedings had even been considered, or they surrendered themselves to the tribunals. In addition, cases before the courts of Serbia, Bosnia and Croatia have been subject to the ‘Rules of the Road’, which eVectively gives the Prosecutor a veto over national prosecutors, thereby obviating the need for deferral proceedings. Within less than a decade, the emphasis was upon sending cases back to the national courts, not withdrawing them in favour of the international tribunals. The ICTY and ICTR have ‘primacy’ over national courts of any country, whereas the SCSL has primacy only over the courts of Sierra Leone. The SCSL provision is a bit enigmatic, because it allows the Court to request a deferral from ‘a national court’, and then specifies that the SCSL has concurrent jurisdiction with the national courts of Sierra Leone. There would seem to be nothing to stop the SCSL from seeking deferral from national courts other than those of Sierra Leone, nor is there anything to prevent those courts from complying. Why, then, state that the SCSL has concurrent jurisdiction with the courts of Sierra Leone when in fact it has concurrent jurisdiction with the courts of all countries, to the extent that such courts can exercise jurisdiction

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Former Yugoslavia and Rule 61’, (1998) 23 Yale Journal of International Law 231; Brian T. Hildreth, ‘Hunting the Hunters: The United Nations Unleashes its Latest Weapon in the Fight against Fugitive War Crimes Suspects – Rule 61’, (1998) 6 Tulane Journal of International and Comparative Law 499; Anne L. Quintal, ‘Rule 61: The ‘‘Voice of the Victims’’ Screams Out for Justice’, (1998) 36 Columbia Journal of Transnational Law 723. Arbour, ‘The Crucial Years’, at p. 399. Blagojevic´ (IT-02-60-T), Judgment, 17 January 2005, para. 646, fn. 2072, para. 667, fn. 2110. ICTY Statute, art. 9(2); ICTR Statute, art. 9(1); SCSL Statute, art. 8(2).

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over crimes against humanity and war crimes committed in Sierra Leone? The explanation for this apparent anomaly in the drafting probably lies with the attempt to transpose the concurrent jurisdiction provision of the ICTY and ICTR statutes to the somewhat diVerent context of the treaty-based SCSL. Probably the drafters of the SCSL Statute simply did not think through this point. The concurrent jurisdictional provisions in the statutes are completed by Rules 9 and 10 of the RPE. Rule 9 provides that in the event of investigation or criminal proceedings instituted in the courts of any State, the Prosecutor may propose to the Trial Chamber designated by the President that a formal request be made that such court defer to the competence of the Tribunal. Rule 10 sets out the procedure for a deferral application. The relevant criteria to be considered by the Prosecutor vary somewhat from Tribunal to Tribunal. According to ICTY Rule 9, the Prosecutor may make the application for deferral when the act being investigated or prosecuted is characterised as an ordinary crime, when there is a lack of impartiality or independence in the national institutions, when the investigations or proceedings are designed to shield the accused from international criminal responsibility, when the case is not diligently prosecuted, or ‘what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal’. The ICTR and SCSL Prosecutors are to consider the seriousness of the oVences, the status of the accused at the time of the alleged oVences and the general importance of the legal questions involved in the case. This is an interesting attempt by the judges to constrain the discretion of the Prosecutor in determining whom to prosecute; the statutes do not suggest that the judges have any right to oversee the choices made by the Prosecutor in this respect. In 1994, Munich police arrested Dusˇko Tadic´ after he was identified by Bosnian refugees.191 Later that year, with proceedings underway in the German courts, Prosecutor Goldstone’s application for deferral of the German proceedings was authorised by an ICTY Trial Chamber.192 Germany did not transfer the accused until the following April, after the German Parliament enacted legislation enabling cooperation with the Tribunal.193 A few days after Tadic´’s first appearance before the Tribunal in The Hague, two other deferral requests were granted. The first dealt with the leadership of the Bosnian

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Anna Tomforde, ‘German Police Hold Serb for War Crimes, Munich Arrest Follows Investigation by Television Crew’, Guardian, 15 February 1994, p. 11. Tadic´ (IT-94-1-D), Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral to the Competence of the International Tribunal in the Matter of Dusˇko Tadic´, 8 November 1994. Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 13.

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Serb forces, then still very much at war. Three individuals were identified: Radovan Karadzˇic´, Ratko Mladic´ and Mico Stanisˇic´.194 The other deferral request dealt with atrocities committed in the Lasˇva river valley and, unusually, listed no names of individuals.195 Subsequently, however, several accused were identified. Over the years, the Tribunal has prosecuted a number of persons for their involvement in the Lasˇva river valley crimes (Furundzˇija, Blasˇkic´, Kordic´, Cˇerkez, Aleksovski, the Kupresˇkic´ brothers, Josipovic´, Santic´). In May 1996, an ICTY Trial Chamber issued a deferral request to the Federal Republic of Yugoslavia (Serbia and Montenegro) with respect to Drazen Erdemovic´, who had already surrendered to the Tribunal and who was in custody in The Hague. Apparently, Yugoslavia was investigating Erdemovic´ for war crimes, and the ICTY told it to stop. Responding to the deferral request, Yugoslavia delivered the results of its investigation against Erdemovic´ to the Tribunal.196 Erdemovic´ oVered to plead guilty, and became the first oVender to be convicted by the ICTY.197 The ICTR also began its judicial proceedings with deferral motions. On 11 January 1996, Trial Chamber II authorised a deferral request filed by the Prosecutor with respect to proceedings in Belgian courts directed against Elie Ndayambaje, Joseph Kanyabashi and Alphonse Higaniro, all three of whom had been detained by the Belgian authorities.198 A deferral application has been refused on apparently only one occasion, and not for grounds listed in Rule 9. An ICTY Trial Chamber denied an application by the Prosecutor that it order Macedonia to defer not only specific ongoing investigations, but also ‘future’ investigations into cases involving unknown perpetrators. In 2003, investigations began into allegations of war crimes committed between Macedonian security forces and organised Albanian rebel groups two years earlier. The Prosecutor argued that parallel investigations by the ICTY and the Macedonian authorities might have ‘serious negative implications’ and could ‘ultimately jeopardise the success of the Prosecutor’s investigations’. She suggested that multiple interviews of witnesses by diVerent investigating parties create the risk that conflicting statements may arise and that witnesses be antagonised. Further, the seizure and analysis of physical and forensic evidence by the domestic authorities may compromise the Prosecutor’s ability to analyse the same evidence. Due to the potentially diVerent investigative procedures of the two investigating parties, the acts of the

194 196 197 198

195 Ibid., paras. 10–11. Ibid., para. 66. Third Annual Report of the ICTR, UN Doc. A/53/429 S/1998/857, paras. 28–29. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998. First Annual Report of the ICTR, UN Doc. A/51/399-S/1996/778, annex, para. 33.

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Macedonian authorities could also compromise or taint subsequent investigative eVorts by the Prosecutor.199

Dismissing the application that ‘future’ investigations be deferred, an ICTY Trial Chamber noted that the principle of concurrent jurisdiction and of the primacy of the Tribunal over national courts was not intended to preclude or prevent the exercise of jurisdiction by national courts.200 On the contrary, the Secretary General, in his Report to the Security Council on the draft Statute, had explained that the preclusion or prevention of the exercise of jurisdiction by national courts of the former Yugoslavia was never the intention of the Security Council when enshrining the principle of concurrent jurisdiction in the Statute of the Tribunal.201 The Tribunal did authorise the deferral of five war crimes cases then pending before the national courts of Macedonia. Judicial authorities in the country respected the deferral request, and forwarded relevant materials to The Hague.202

Surrender or transfer The statutes and the RPE employ the terms ‘surrender’ and ‘transfer’, rather than extradition, which is used to describe rendition of a fugitive from one sovereign State to another. It was hoped that this nomenclature might avoid quarrels with States that have constitutional provisions preventing extradition of their own nationals. The ICTY and ICTR RPE state that the obligation to cooperate with the Tribunal is to prevail over any legal impediment to the surrender or transfer of the accused to the Tribunal that may exist under the national law or extradition treaties of the State concerned.203 In fact, both Croatia and Serbia long insisted that they could not comply with requests for surrender by the Tribunal because extradition of their own citizens was prohibited by their constitutions. When amici curiae for Slobodan Milosˇevic´ challenged his rendition, arguing national prohibition on the extradition of citizens, the Trial Chamber reminded him: ‘The purpose of Rule 58 is to ensure that domestic procedures relating to the surrender and transfer of a 199

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In re The Republic of Macedonia (IT-02-55-MISC.6), Decision on the Prosecutor’s Request for Deferral and Motion for Order to the Former Yugoslav Republic of Macedonia, 4 October 2002, para. 12. Ibid., para. 49. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 64. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 247; Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 282. ICTY RPE, Rule 58; ICTY RPE, Rule 58. Reflecting its special nature as a treaty-based court, the SCSL RPE do not have a similar provision. Rule 58 of the SCSL RPE states: ‘The Special Court may invite third States to enter into agreements and or ad hoc arrangements which may facilitate arrest and transfer to the Special Court.’

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person, from a State in respect of whom a request for arrest and transfer has been made, are not used as a basis for not complying with the request.’204 On 11 April 2002, the parliament of the Federal Republic of Yugoslavia passed a law allowing extradition of indictees to the ICTY.205 Surrender of oVenders has generated enormous tension between the ICTY and some of the various successor States of the former Yugoslavia. In addition to Security Council Resolutions, there has been intense diplomatic pressure on Croatia and Serbia, often involving significant financial incentives, notably from the Government of the United States.206 The United States has also sponsored reward programmes oVering substantial sums of money in exchange for information leading to the arrest and conviction of suspects before the tribunals.207 For example, legislation enacted by the United States has made foreign aid to Serbia and Montenegro conditional on cooperation with the ICTY in the surrender and transfer of indictees, as well as assistance in their apprehension.208 The result was that on 21 May 2002, United States Secretary of State Powell confirmed that cooperation had been obtained, citing ‘new laws that have been passed in Belgrade, voluntary surrenders that have taken place, and indictments that have been issued to those who remain still outside the jurisdiction of the tribunal’.209 In 2004, responding to a request from the Commission of the European Union, the Prosecutor reported that cooperation by Croatian authorities had improved considerably and that she had ‘an overall positive assessment’. She said she was still disappointed that Croatia had not succeeded in transferring Ante Gotovina, although she agreed that she was ‘satisfied with the eVorts . . . at this stage’.210 As for Serbia and Montenegro, she described its cooperation as ‘complex, partial and variable’. She noted that the relevant authorities were not prepared 204 205 206

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Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 45. Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 227. Sean D. Murphy, ‘Contemporary Practice of the United States Relating to International Law’, (2002) 96 American Journal of International Law 706, at pp. 729–730; Allison Marston Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’, (2003) 97 American Journal of International Law 510, at p. 535. Murphy, ‘Contemporary Practice of the United States’, at p. 404. Some writers have suggested this may promote a practice of ‘bounty-hunting’: Christopher M. Supernor, ‘International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice’, (2001) 50 Air Force Law Review 215; Scharf, ‘Tools for Enforcing International Criminal Justice’. E.g., Foreign Operations, Export Financing and Related Programmes, Fiscal Year 2002, Pub. L. No. 107–115, paras. 584(a), (c), 115 Stat. 2118, 2172 (2002). United States Department of State Press Release, ‘Powell Says Belgrade Cooperating with War Crimes Tribunal’, 21 May 2002. Also: ‘US Approves Aid Resumption for Yugoslavia’, New York Times, 22 May 2002, p. A13. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 276.

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to execute arrest warrants sent by the Tribunal, and that three out of four persons accused in October 2003 were openly engaged in the political life of Serbia. At the Prosecutor’s request, on 4 May 2004, the President of the ICTY reported Serbia and Montenegro to the Security Council.211 But as recently as 2005, Prosecutor Del Ponte was denouncing Serbia for its refusal to cooperate in arresting the ICTY’s two most celebrated suspects at large, Bosnian Serb leaders Radovan Karadzˇic´ and Ratko Mladic´. A State that executes an arrest warrant is to detain the individual and promptly notify the Registrar. Arrangements for transfer of the accused to the seat of the Tribunal are to be made by the arresting State, the host country and the Registrar. The transfer of the accused to the seat of the Tribunal shall be arranged between the State authorities concerned, the authorities of the host country and the Registrar.212

Pre-trial proceedings subsequent to arrest or surrender Initial appearance and entry of plea An accused who is transferred or surrendered to one of the tribunals must appear before a Trial Chamber assigned to the case, or a judge of that Trial Chamber, ‘without delay’. The ICTR Appeals Chamber has insisted that pursuant to the RPE it ‘is unequivocal that an initial appearance is to be scheduled without delay’.213 It is at that hearing that the accused person is formally charged. The Trial Chamber or the judge must first ensure that the right of the accused to counsel has been respected. The Registrar is under an obligation to ensure that duty counsel is provided, even if the defendant has not yet selected a more permanent legal representative.214 The indictment is read to the accused in a language that he or she speaks and understands. The Tribunal informs the accused that within thirty days of the initial appearance he or she will be called upon to enter a plea of guilty or not guilty on each count but that, should the accused so request, he or she may immediately enter a plea of guilty or not guilty on one or more count.215 A recent ruling of an ICTY Trial Chamber explained the significance of the initial appearance: ‘[F]ormal charges are brought against the Accused during the initial appearance, and [it] is only at this moment that the Chamber, in accordance with art. 20(3) of the Statute, can satisfy itself that the accused understands the Indictment and that his rights, including his right to counsel

211 212 213 214 215

Ibid., para. 277. ICTY RPE, Rule 57; ICTR RPE, Rule 57; SCSL RPE, Rule 57. Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 250. Ibid., paras. 245, 248. ICTY Statute, art. 20(3); ICTR Statute, art. 19(3); SCSL RPE, Rule 61.

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as explicitly expressed in Rule 62(6), are respected.’ The Trial Chamber said that the right to understand the indictment was an ‘essential prerequisite for the accused to exercise his rights of defence, including the right to challenge the jurisdiction of the Tribunal under Rule 72 of the Rules’.216 If the accused pleads not guilty, the Tribunal instructs the Registrar to set a date for trial. If the accused fails to enter a plea at the initial or any further appearance, the Tribunal enters a plea of not guilty on the accused’s behalf.217 If the accused pleads guilty, the Trial Chamber makes sure that the guilty plea has been made voluntarily, that it is informed and unequivocal, and that the charges have a suYcient factual basis indicating the accused’s participation. If these conditions are fulfilled, the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for sentencing.218 A change of plea may occur at any stage in the proceedings. Sikirica and Dosen changed their pleas to guilty after their motions pursuant to Rule 98bis to have genocide charges dismissed were successful. With that matter resolved, they were prepared to plead guilty to crimes against humanity.219 The RPE specify that after the initial appearance, questioning of an accused may not proceed without the presence of defence counsel unless the accused has voluntarily and expressly agreed to the contrary. Any questioning is to be recorded by audio or video.220 Of course, the accused retains the right to silence, and is under no obligation to cooperate in questioning. Refusal to answer questions cannot be invoked by the Prosecutor in order to infer guilt.

Detention on remand and provisional release All three tribunals have their own detention units. When an accused is transferred to the Tribunal, he or she is held in custody subject to application for provisional release.221 There is no requirement that a judge or a chamber actually order the accused to be detained; it is an automatic consequence of the RPE.222 Provisional release may be ordered by a Trial Chamber only if ‘it is 216

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Norac (IT-04-76-I), Decision on the Prosecutor’s Motion to Oppose the Initial Appearance of Mirko Norac, 30 June 2004. ICTY RPE, Rule 62; ICTR RPE, Rule 62; SCSL RPE, Rule 61. ICTY RPE, Rule 62bis; ICTR RPE, Rule 62(B); SCSL RPE, Rule 63. Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 15. ICTY RPE, Rule 63; ICTR RPE, Rule 63; SCSL RPE, Rule 63. The RPE allow for an accused to be detained in facilities outside of the host country: ICTY RPE, Rule 64; ICTR RPE, Rule 64. The SCSL RPE do not provide for this explicitly, but nothing prevents it either. Under SCSL RPE, Rule 64, the President is authorised to ‘order special measures of detention’. Brdanin et al. (IT-99-36-PT), Decision on Motions by Momir Talic´ (1) To Dismiss the Indictment, (2) For Release, and (3) For Leave to Reply to Response of Prosecution to Motion for Release, 1 February 2000.

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satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person’. In other words, detention is presumed, and the accused has the onus to establish reasons justifying provisional release. The Trial Chamber may impose conditions, such as execution of a bail bond, and other appropriate measures to ensure presence at trial and the protection of others. Bail may be authorised even after the trial has begun.223 It is also possible to obtain provisional release at the appeals stage. For example, on 17 December 2003, the ICTY Appeals Chamber granted Miroslav Kvocˇka provisional release pending the hearing of his appeal.224 No accused persons before the ICTR or SCSL have succeeded in obtaining provisional release.225 The ICTY has been more liberal in this respect, and several indictees have been able to return to their homes in Serbia, Croatia and Bosnia and Herzegovina. Provisional release has been granted on several occasions on what might be termed humanitarian grounds. An ICTY Trial Chamber released Milan Simic´ on the basis of ‘exceptional circumstances relating to his health’.226 There are several examples of persons awaiting trial or on trial being freed for brief periods in order to attend funerals of close relatives.227 Another accused about whom there were serious doubts with respect to his fitness to stand trial was released and allowed to return home to Bosnia and Herzegovina for medical treatment.228 The ICTY Appeals Chamber has said that factors to be considered in the decision on provisional release include the seriousness of the oVence, the likelihood of a long prison term upon conviction, the circumstances of surrender, the degree of cooperation given by the authorities of the State

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Sesay et al. (SCSL-04-15-AR65), Sesay – Decision on Appeal Against Refusal of Bail, 14 December 2004, paras. 33–34. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 247. Norman et al. (SCSL-04-14-AR65), Fofana – Appeal Against Decision Refusing Bail, 11 March 2005, para. 36. Also: Daniel Journal Rearick, ‘Innocent Until Alleged Guilty: Provisional Release at the ICTR’, (2003) 44 Harvard International Law Journal 577. Simic´ et al. (IT-95-9-AR65), Decision on Milan Simic´’s Application for Provisional Release, 29 May 2000. On 18 January 2004, a duty judge granted Enver Hadzˇihasanovic´ provisional release from 18 to 20 January 2004 to attend the funeral of his brother in Bosnia and Herzegovina: see Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 87. Defendant Amir Kubura was released temporarily and allowed to return to Bosnia and Herzegovina on compassionate grounds: Hadzˇihasanovic´ et al. (IT-01-47-T), Decision Pursuant to Rule 65 Granting Amir Kubura Authorization to Attend his Mother’s Funeral, 12 March 2004. Hadzˇihasanovic´ and Kubura waived their right to be present at the trial proceedings for the duration of their release. Kovacˇevic´ (IT-01-42/2-I), Decision on Provisional Release, 2 June 2004; Kovacˇevic´ (IT01-42/2-I), Decision to Extend the Order for Provisional Release, 2 December 2004. Also: Kovacˇevic´ (IT-01-42/2-I), Order on the Prosecutor’s Request for Referral to National Authorities Under Rule 11bis, 20 January 2005.

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where the person will reside during provisional release, the existence of guarantees from the State authorities that they will ensure the presence of the accused for trial and guarantee the observance of the conditions set by a Trial Chamber, the senior position of the accused in government, the existence of national legislation concerning cooperation with the Tribunal, and the fact that an accused manifests a degree of cooperation with the Prosecutor.229 Excessive delay in the proceedings has regularly been invoked by applicants for provisional release.230 However, the ICTR Appeals Chamber has held that lengthy pre-trial detention does not amount to good cause justifying interim release.231 On the other hand, cooperation with the Prosecutor, although relevant, should not be a prior condition for provisional release.232 Voluntary surrender was also viewed as a positive factor, and one of the first accused persons to turn himself in to the ICTY, Croatian general Tihomir Blasˇkic´, was authorised to return to his home pending trial, subject to a number of conditions. In eVect, he was detained under a form of house arrest within the Netherlands.233 Judgments on provisional release have noted the complexity of the proceedings and the gravity of the oVences charged, both of which are conditions recognised in the case law of international human rights tribunals.234 In one case, an ICTR Trial Chamber said that ‘having regard to the general complexity of the proceedings and the gravity of the oVences with which the Accused is charged, the Chamber concludes that the Accused’s detention remains within acceptable limits’.235 As for the seriousness of the oVences also creating a presumption in favour of detention, one ICTY Trial Chamber said, ‘[i]t is a matter of common experience that the more serious the charge, and the greater the likely sentence if convicted, the greater the reasons for not appearing for

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Sainovic´ et al. (IT-99-37-AR65), Decision on Provisional Release, 30 October 2002. Mugenzi et al. (ICTR-99-50-I), Decision on Justin Mugenzi’s Motion for Stay of Proceedings or in the Alternative Provisional Release (Rule 65) and in Addition Severance (Rule 82(B)), 8 November 2002. Kanyabashi (ICTR-96-15-A), Decision (On Application for Leave to Appeal Filed under Rule 65(D) of the Rules of Procedure and Evidence), 13 June 2001. Also: Mugenzi et al. (ICTR-99-50-I), Decision on Justin Mugenzi’s Motion for Stay of Proceedings or in the Alternative Provisional Release (Rule 65) and in Addition Severance (Rule 82(B)), 8 November 2002; Bagosora et al. (ICTR-98-41-T), Decision on the Defence Motion for Release, 12 July 2002, para. 27. Sainovic´ et al. (IT-99-37-AR65), Decision on Provisional Release, 30 October 2002. Blasˇkic´ (IT-95-14-IT), Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, 3 April 1996. Ndayambaje (ICTR-98-42-T), Decision on the Defence Motion for the Provisional Release of the Accused, 21 October 2002. Mpambara (ICTR-2001-65-I), De´cision (Requeˆte de la De´fense aux fins de la mise en liberte´ de l’Accuse´), 22 October 2002.

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trial’.236 But judges have been unimpressed by arguments from the Prosecutor that once an accused has learned of the evidence, he or she will be tempted to threaten or otherwise interfere with witnesses, and that this justifies continued detention.237 The tribunals have often cited the diYculty that they have in executing their own arrest warrants in other countries as a justification for pre-trial detention. Their situation is obviously diVerent from that of a domestic justice system, which has better control of an accused who has been released provisionally. Given the unreliability of the Belgrade government in terms of cooperation with the ICTY, Trial Chambers were hesitant to allow release pending trial.238 They later became more liberal, especially in light of legislative changes. Going a step further, in 2002 the Appeals Chamber attached significance to guarantees from the Republika Srpska.239 The Appeals Chamber subsequently ruled that it was preferable to assess the reliability of guarantees given by an authority by looking at what would happen if the authority were obliged to arrest the individual accused, rather than by an assessment of the level of cooperation by that authority with the Tribunal generally.240 Accused persons seeking release commonly seek a guarantee from the State or entity (Republika Srpska) where they intend to reside during the proceedings that they will be returned to the Tribunal upon request, and judges have attached considerable importance to such assurances. The senior position of an accused in the hierarchy is a factor held to impact negatively on the reliability of governmental guarantees.241 The initial version of the RPE said that the accused could be released pending trial ‘only in exceptional circumstances’.242 In the early years, the ICTY was very reluctant to grant provisional release, holding, for example, that this would be authorised ‘only in very rare cases in which the condition of the accused, notably the accused’s state of health, is not compatible with any form of detention’.243 For example, release was authorised in the case of a 236

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Brdanin (IT-99-36-PT), Decision on Motion by Brdanin for Provisional Release, 18 September 2000. Ibid. Ibid. Blagojevic´ et al. (IT-02-53-AR65), Decision on Application by Dragan Jokic´ for Leave to Appeal, 18 April 2002. But see: Blagojevic´ et al. (IT-02-60-PT), Decisions on Vidoje Blagojevic´’s and Dragan Obrenovic´’s Applications for Provisional Release, 22 July 2002. Mrksic´ (IT-95-13/1-AR65), Decision on Appeal against Refusal to Grant Provisional Release, 8 October 2002. Sainovic´ et al. (IT-99-37-AR65), Decision on Provisional Release, 30 October 2002. ICTY RPE, Rule 65(B) Blasˇkic´ (IT-95-14-IT), Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, 3 April 1996. See also the subsequent decisions in Blasˇkic´ of 17 April 1996, 24 April 1996, 9 May 1996 and 20 December 1996. See also the cases refered to in Murphy, ‘Progress and Jurisprudence of the ICTY’.

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terminally ill defendant,244 and for an individual confined to a wheelchair.245 The reference to ‘exceptional circumstances’ was removed from the ICTY Rules in 1999. The Prosecutor argued that the removal of ‘exceptional circumstances’ from the Rules was inconsistent with the Statute and therefore ultra vires and consequently invalid, a contention that failed to resonate with the judges (who had adopted the amendment!).246 Understandably, the amendment prompted defence arguments that the regime had been considerably liberalised, and that provisional release was now the rule rather than the exception, a principle stated clearly in international human rights instruments.247 But several Trial Chambers rejected this reasoning, and continued to view provisional release as the exception rather than the rule, and said the amendment had changed nothing in this respect. They said that although detention remained the rule and release the exception, the accused no longer had to show ‘exceptional circumstances’.248 The ICTY Appeals Chamber dismissed an application for leave to appeal one of these rulings.249 The fact that pre-trial detention was becoming embarrassingly lengthy may have contributed to a growing unease among judges on this point. Some of the rulings recognised that the length of detention and the likelihood of prompt trial were factors to be considered in the decision on interim release.250

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Djukic´ (IT-96-20-PT), Transcript, 24 April 1996; Third Annual Report of the ICTR, UN Doc. A/53/429 S/1998/857, para. 45. Simic´ et al. (IT-95-9-AR65), Decision on Milan Simic´’s Application for Provisional Release, 29 May 2000. Simic´ et al. (IT-95-9-PT), Decision on Simo Zaric´’s Application for Provisional Release, 4 April 2000. E.g., International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 9(3). Kvocˇka et al. (IT-98-30-PT), Decision on Motion for Provisional Release of Miroslav Kvocˇka, 2 February 2000; Simic´ et al. (IT-95-9-PT), Decision on Simo Zaric´’s Application for Provisional Release, 4 April 2000; Simic´ et al. (IT-95-9-AR65), Decision on Milan Simic´’s Application for Provisional Release, 29 May 2000; Brdanin (IT-99-36-PT), Decision on Motion by Brdanin for Provisional Release, 18 September 2000; Nahimana et al. (ICTR-99-52-T), Decision on the Defence Motion for the Release or Alternatively Provisional Release of Ferdinand Nahimana et al., 13 June 2001; Krajisnik et al. (IT-00-39 and 40-PT), Decision on Momcilo Krajisnik’s Notice of Motion for Provisional Release, 8 October 2001. Subsequently, a Trial Chamber said the ‘exception-rule’ approach was not helpful in ruling on cases of provisional release: Jokic´ (IT-01-42-PT), Ademi (IT-01-46PT), Orders on Motions for Provisional Release, 20 February 2002. See: Patricia M. Wald and Jenny Martinez, ‘Provisional Release at the ICTY: AWork in Progress’, in Richard May et al., eds., Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, The Hague: Kluwer Law International, 2001, pp. 231–247, at pp. 233–234. Brdanin (IT-99-36-A), Decision on Application for Leave to Appeal, 7 September 2000. Brdanin (IT-99-36-PT), Decision on Motion by Brdanin for Provisional Release, 18 September 2000; Muhimana et al. (ICTR-95-I-B-I), De´cision (Requeˆte de la De´fense aux fins de la mise en liberte´ provisoire de l’Accuse´), 1 October 2002, para. 7.

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More liberal views soon emerged among the judges. In 2001, in a case dealing with an accused who was to be released in Bosnia and Herzegovina, where cooperation with the ICTY was better than in neighbouring Serbia, a Trial Chamber referred to European Court of Human Rights jurisprudence to the eVect that ‘[a]ny system of mandatory detention on remand is per se incompatible’ with human rights standards.251 The Trial Chamber said the guarantees oVered by Bosnia and Herzegovina, coupled with the fact that the accused had surrendered voluntarily, were enough to meet a ‘proportionality test’ that was the basis of any determination on interim release. The Trial Chamber observed that ‘there will never be a total guarantee that an accused will appear for trial and, if released, will not pose a danger to sources of evidence’.252 The Trial Chamber seemed impressed with a dissenting opinion of Judge Robinson in Krajisnik, holding that: While the Tribunal’s lack of a police force, its inability to execute its arrest warrants in States and its corresponding reliance on States for such execution may be relevant in considering an application for provisional release, on no account can that feature of the Tribunal’s regime justify either imposing a burden on the accused in respect of an application under Rule 65 or rendering more substantial such a burden, or warranting a detention of the accused for a period longer than would be justified having regard to the requirement of public interest, the presumption of innocence and the rule of respect for individual liberty.253

Judge Robinson said the Tribunal’s practice had established ‘a culture of detention that is wholly at variance with the customary norm that detention shall not be the general rule’ and stated that it was wrong ‘to justify a principle that provisional release is the exception and not the rule on the basis of the absence within the Tribunal of a police force to execute its own warrants’.254 A year later, Judge Robinson rallied his colleagues in a ruling on provisional release that noted legislative changes in the Federal Republic of Yugoslavia that suggested the level of cooperation with the ICTY was now satisfactory. The Trial Chamber took into account guarantees given by the Government of the Federal Republic of Yugoslavia and the Republic of Serbia with respect to each accused, including undertakings to ensure that the accused would report to a police station, keep a record of attendance, forward monthly reports to confirm compliance, and immediately arrest the accused in case of escape or

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Ilijkov v. Bulgaria (App. No. 33977/96), Judgment, 26 July 2001, paras. 84 and 85. Hadzˇihasanovic´ et al. (IT-01-47-PT), Decisions granting Provisional Release to Enver Hadzˇihasanovic´, Mehmed Alagic and Amir Kubura, 9 December 2001. Krajisnik et al. (IT-00-39 and 40-PT), Decision on Momcilo Krajisnik’s Notice of Motion for Provisional Release, 8 October 2001, para. 11. Ibid., para. 22.

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violation of a condition of provisional release.255 Guarantees are not a requirement for granting provisional release, but they are certainly relevant and provide Trial Chambers with ‘further assistance’.256 One of the arguments opposing provisional release at the SCSL is the rather plain inability of the country’s police force to provide any meaningful supervision of accused persons who might be released. In every single bail application, the Government of Sierra Leone has made formal submissions to the Court expressing its failings in this respect, which is explained as a question of means and resources.257 The Agreement between Sierra Leone and the United Nations obliges the Government to ‘comply without undue delay with any request for assistance by the Special Court or an order issued by the Chambers’.258 The SCSL has accepted this as a relevant consideration in its continuing refusal to grant provisional release to any of the accused.259

Fitness to stand trial No specific provision in the statutes or the rules deals with fitness to stand trial. Rule 74bis provides for an order by a Trial Chamber, either proprio motu or at the request of a party, for a medical, psychiatric or psychological examination of the accused. If the unfitness persists, and the Tribunal concludes it must permanently abandon the prospect of trying the accused within a reasonable time, there would seem to be no alternative but to order release. The classic case in international criminal law is that of Rudolf Hess, who behaved bizarrely throughout the Nuremberg Trial. Many observers, and probably the judges too, believed he was cleverly feigning a disorder, rather than genuinely non compos mentis. The International Military Tribunal concluded: ‘That Hess acts in an abnormal manner, suVers from loss of memory, and has mentally deteriorated during this trial, may be true. But there is nothing to show that he does not realise the nature of the charges against him, or is incapable of defending himself. He was ably represented at the trial by counsel, appointed for that purpose by the Tribunal.’260 255

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Sainovic´ et al. (IT-99-37-PT), Decision on Applications of Nikola Sainovic´ and Dragoljub Ojdanic´ for Provisional Release, 26 June 2002. Blagojevic´ et al. (IT-02-53-AR65), Decision on Application by Dragan Jokic´ for Leave to Appeal, 18 April 2002, paras. 7–8. Fofana (SCSL-04-14-PT), Confidential Submissions Made by the Government of the Republic of Sierra Leone under Rule 65(B) of the Rules of Procedure and Evidence, 23 February 2004. Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, art. 17. Norman et al. (SCSL-04-14-AR65), Fofana – Appeal Against Decision Refusing Bail, 11 March 2005. France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, p. 277.

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In addressing the fitness to stand trial issue, an ICTY Trial Chamber has found ‘material assistance’ in a number of the procedural rights provisions of the Statute, as well as in the reference to ‘general principles of law’ in the Report of the Secretary-General that accompanied the draft statute. The fact that trials in absentia are not permitted ‘would appear to be devoid of any substance if it related to the mere physical presence of the accused in court’.261 The Trial Chamber found evidence of general principles in the case law of a variety of national jurisdictions, as well as in pronouncements of international human rights tribunals, such as the European Court of Human Rights. According to the Trial Chamber, the inquiry with respect to fitness is not whether the accused suVered from a particular disorder, but rather whether he or she could plead to the charge, understand the nature of the charges, understand the course of the proceedings, understand the details of the evidence, instruct counsel, understand the consequences of the proceedings, and testify.262 It has been held that the burden of proof to establish unfitness to stand trial rests with the defence, who must satisfy this on a preponderance of evidence test.263 An ICTY Trial Chamber has said that the consequences of finding an accused unfit to stand trial will vary according to the circumstances. The options might be to adjourn the trial and continue when the accused has recovered, or abandon the trial altogether.264 The issue of fitness arose at the ICTY in its first conviction, of Drazen Erdemovic´, who volunteered to plead guilty when brought to The Hague as a witness. His pre-sentencing hearing was adjourned so that a panel of three experts could report on his psychological condition. The three psychological and psychiatric professionals concluded that ‘because of the severity of the post-traumatic stress disorder, [Erdemovic´] can be regarded as insuYciently able to stand trial at this moment’. The Tribunal postponed the proceedings for several months, until he was declared fit to stand trial.265 Fitness also arose in the prosecution of Vladimir Kovacˇevic´, who was indicted together with Pavle Strugar and Admiral Miodrag Jokic´ for the December 1991 attack on Dubrovnik. Kovacˇevic´ was arrested in Belgrade in 2003, but when brought to The Hague he proved to be in a state of mental disorder that prevented him from entering a plea. A medical examination by two experts determined

261

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Strugar (IT-01-42-T), Decision Re the Defence Motion to Terminate Proceedings, 26 May 2004, para. 32. Ibid., paras. 35–36. Ibid., para. 38. Similarly, see: Kovacˇevic´ (IT-01-42/2-PT), Order on the Prosecutor’s Request for Referral to National Authorities Under Rule 11bis, 20 January 2005. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 3–8.

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that he was unable to fully understand the charges raised against him, but that he might recover if adequately treated at a mental health institution in a Bosnian/Croatian/Serbian-speaking environment. Upon application from defence counsel, Kovacˇevic´ was granted provisional release and was returned to Serbia for psychiatric treatment in a mental health institution for an initial period of six months to ascertain whether, after being treated adequately, he was fit to stand trial.266 The rulings on the right of Slobodan Milosˇevic´ to defend himself also raise the issue of fitness, although they have not been presented as analogous with the question of fitness to stand trial for inability to understand the proceedings.267 But when Milosˇevic´ has been deemed unable to defend himself because of his hypertensive medical condition, this is in eVect a matter of fitness to stand trial. The Statute entitles him to act in his own defence, but he cannot because of frail health, at least at the pace of hearings that the Tribunal has been determined to follow. There can be little doubt that if he was represented by counsel but unable to attend trial for medical reasons, the trial could not go on. But the Tribunal has ruled that because he is acting in his own defence, counsel may be imposed upon him.268 The ICTY Appeals Chamber viewed it as a case where a defendant’s self-representation was ‘substantially and persistently obstructing the proper and expeditious conduct of his trial’.269 According to the Appeals Chamber: How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not suYciently robust to withstand all the rigors of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month? Must the Trial Chamber be forced to choose between setting that defendant free and allowing the case to grind to an eVective halt? In the Appeals Chamber’s view, to ask that question is to answer it.270

The Appeals Chamber found some authority in United States case law where the right of a person to act in his or her own defence had been denied because the accused had a disabling stutter or a fragile mental state.271

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Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, paras. 99–100. This subject is discussed in greater detail under ‘right to counsel’, above at pp. 523–531. Milosˇevic´ (IT-02-54-T), Order on the Modalities to be Followed by Court Assigned Counsel, 3 September 2004, pp. 2–3. Milosˇevic´ (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 13. Ibid., para. 15 (references omitted). Ibid., fn. 43.

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Disclosure of evidence A duty on the prosecution to disclose its evidence, whether it tends to establish guilt or innocence, is now recognised in many legal systems.272 The European Court of Human Rights has declared ‘that it is a requirement of fairness . . . that the prosecution authorities disclose to the defence all material evidence for or against the accused’.273 As an ICTY Trial Chamber noted, ‘the basic right of the accused to examine witnesses, read in conjunction with the right to have adequate time for the preparation of his defence, envisages more than a blind confrontation in the courtroom’.274 Existence of a reciprocal duty on the defence is less common, although in some cases, such as a defence of alibi, the credibility of the defence will depend on prompt disclosure of material facts.275 In an interlocutory decision in the Tadic´ case, Judge Stephen said the defence has ‘no disclosure obligation at all unless an alibi or a special defence is sought to be relied upon and then only to a quite limited extent’.276 The RPE require that within thirty days of the initial appearance of the accused, the Prosecutor is to provide the defence with copies of the supporting material that accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused.277 Other material that the Prosecutor will make use of, including witness statements and documents, must be made available to the defence within a time limit set by the Trial Chamber or the Pre-Trial Judge. According to an ICTY Trial Chamber, ‘the Rules support the idea that all the names of Prosecution witnesses must be disclosed at the same time in a comprehensive document which thus permits the Defence to have a clear and cohesive view of the Prosecution’s strategy and to make the appropriate preparations’.278

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Jean Pradel, Droit pe´nal compare´, Paris: Dalloz, 1995, pp. 414–420. Edwards v. United Kingdom, Series A, No. 247B, 16 December 1992. See: Anne-Marie La Rosa, ‘Re´flexions sur l’apport du Tribunal pe´nal international pour l’ex-Yougoslavie au droit a` un proce`s e´quitable’, (1997) 101 Revue ge´ne´rale de droit international public 945, at p. 974. Delalic´ et al. (IT-96-21), Decision on the Defence Motion to Compel the Discovery of Identity and Location of Witnesses, 18 March 1997. Williams v. Florida, 399 US 78 (1970). Tadic´ (IT-94-1-T), Separate Opinion of Judge Stephen on Prosecution Motion for Production of Defence Witness Statements, 27 November 1996. ICTY RPE, Rule 66(A)(i); ICTR RPE, Rule 66(A)(i). The SCSL Rules are more demanding, requiring disclosure within thirty days of statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial (SCSL RPE, Rule 66(a)(i)). Moreover, SCSL RPE 66(a)(ii) recognises that the prosecution has a continuous obligation of disclosure of all statements of additional witnesses. Blasˇkic´ (IT-95-14), Decision on the Production of Discovery Materials, 27 January 1997.

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A witness statement ‘is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime’. According to the ICTY Appeals Chamber, ‘when a witness testifies during the course of a trial before the Tribunal, the witness’s verbal assertions recorded by the Registry’s technical staV through contemporaneous transcription, are capable of constituting a witness statement’ within the meaning of Rule 66(A)(ii). ‘The testimony will constitute such a witness statement and therefore be subject to disclosure, only if the witness is intended to be called’, in accordance with the Rule, ‘to testify in subsequent proceedings in relation to the subject-matter of the testimony. In other words, the testimony is a witness statement for the subsequent proceedings.’279 Certain disclosure obligations also apply to the defence. The defence must provide notice of its intent to plead a defence of alibi. The notice must provide details of the alibi defence, such as the place the accused claims he or she was at the time of the crime, and information about the witnesses whom the defence intends to call in support of the alibi.280 Such a rule is not unusual in many national justice systems, and presents an exception to the general principle that the accused need not divulge the details of the defence until after the close of the prosecution case. The principle is rooted in the presumption of innocence. Rule 67 also requires the defence to disclose ‘any special defence’, such as ‘diminished or lack of mental responsibility’. Subsequent to this defence disclosure, the Prosecutor is to notify the defence of the names of the witnesses whom the Prosecutor intends to call in rebuttal of the alibi or special defence. The defence may request the Prosecutor to allow it to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused.281 Under the original version of the ICTY and ICTR RPE, if the defence made such an application, this generated a reciprocal obligation to provide comparable access to materials in the possession of the defence.282 The ICTY Rule was repealed in December 2003,283 and was also removed from the SCSL RPE, although it remains in the ICTR RPE.

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Blasˇkic´ (IT-95-14-A), Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000. ICTY RPE, Rule 67(A)(i)(a); ICTR RPE, Rule 67(A)(ii)(a); SCSL RPE, Rule 67(A)(ii) (a). See: Delalic´ (IT-96-21), Decision on the Motion to Compel the Disclosure of the Addresses of the Witnesses, 13 June 1997. ICTY RPE, Rule 66(B); ICTR RPE, Rule 66(A)(ii); SCSL RPE, Rule 66(A)(ii). ICTY RPE, Rule 67(C); ICTR RPE, Rule 67(C). ‘Amendment to the Rules of Procedure and Evidence’, UN Doc. IT/225.

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The general practice of the ICTY Trial Chambers has been to engage in ‘open pre-trial disclosure’.284 The Prosecutor is under a particular duty to disclose exculpatory and other relevant materials to the defence. According to Rule 68, the Prosecutor shall disclose to the defence any material known to the Prosecutor that may suggest the innocence or mitigate the guilt of the accused or aVect the credibility of Prosecution evidence.285 The Prosecutor determines what materials are to be disclosed at this stage,286 although the defence may contest this if it can make a prima facie case that the evidence is significant and that it is in the possession of the Proecutor.287 The Prosecutor’s obligation of disclosure continues throughout the trial and during appeal proceedings, and even after a final conviction.288 Failure to observe disclosure obligations has serious consequences. If the defence fails to observe its obligations to disclose special defences, the accused is still entitled to testify on the point, but loses the right to call witnesses in support.289 In addition, according to ICTY Rule 68bis, the Pre-Trial Judge or the Trial Chamber may decide proprio motu, or at the request of either party, on sanctions to be imposed on a party which fails to perform its disclosure obligations pursuant to the Rules. No equivalent provision exists in the ICTR or SCSL RPE, although the judges of those tribunals surely have an inherent authority to ensure that disclosure obligations are performed. The failure of one party to disclose evidence in a timely and adequate fashion does not relieve the other party of its disclosure obligations.290 In exceptional circumstances, the Prosecutor may obtain authorisation not to disclose the identity of a victim or witness ‘who may be in danger or at risk until such person is brought under the protection of the Tribunal’. The identity must be disclosed, however, with suYcient time prior to the trial so as to respect the right of the defence to adequate time for preparation. The

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Krajisnik et al. (IT-00-39 and 40-PT), Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65 ter, 66(B) and 67(C), 1 August 2001. ICTY RPE, Rule 68(i); ICTR RPE, Rule 68(A); SCSL RPE, Rule 68(B). Delalic´ (IT-96-21), Decision on the Motion by the Accused Zejnil Delalic´ for the Disclosure of Evidence, 26 September 1996, para. 9 Blasˇkic´ (IT-95-14), Decision on the Production of Discovery Materials, 27 January 1997; Delalic´ (IT-96-21), Decision on the Request of the Accused Hazim Delalic´ Pursuant to Rule 68 for Exculpatory Information, 24 June 1997. ICTY RPE, Rule 68(v); ICTR RPE, Rule 68(E); SCSL RPE, Rule 68(B). Blasˇkic´ (IT-9514-A), Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000. Kupresˇkic´ et al. (IT-95-16-T), Decision, 11 January 1999; Kvocˇka et al. (IT-98-30/1-T), Decision on the Defence of Alibi for the Accused Zoran Zˇigic´, 21 July 2000. Blasˇkic´ (IT-95-14-T), Decision on the Defence Motion for Sanctions for the Prosecutor’s Continuing Violation of Rule 68, 28 September 1998.

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defence needs to know the identity of a witness in order to respond properly and, possibly, raise challenges to the witness’s credibility. In some cases, however, witnesses remain unidentified, at least as far as the public is concerned, even at trial. It is not at all uncommon for witnesses not to be identified by their real names, even in the judgments of the tribunals. The video transmission of proceedings at the tribunals is delayed by several minutes so that an inadvertent identification of a protected witness by one of the lawyers, or by a judge, or by the witness himself or herself, can be remedied. Some matters are excluded from disclosure. For example, reports, memoranda or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case are not subject to disclosure or notification under those Rules. An ICTY Trial Chamber decided that the war diary prepared by General Blasˇkic´’s deputy, as well as a military log, did not fall within this exception. Blasˇkic´ said the log would allow him to oVer detailed and exhaustive evidence when testifying in his own defence, and the Trial Chamber ordered that the materials be produced.291 The Prosecutor may withhold disclosure of certain information if this is likely to prejudice further or ongoing investigations, ‘or for any other reasons may be contrary to the public interest or aVect the security interests of any State’, but in such cases it must obtain authorisation from the Trial Chamber sitting in camera.292 The Prosecutor may also be in possession of information provided on a confidential basis, for example from a sovereign State or foreign intelligence service. To the extent that the information is obtained in this way, the Prosecutor may not disclose it without the consent of the person or entity that provided it. Some of the Rules with respect to disclosure have been applied with a degree of flexibility. At the ICTR, the defence insisted that the Rule requiring disclosure of all witness identities and statements prior to commencement of trial be applied strictly, an argument with which dissenting Judge Dolenc agreed. However, Judges Williams and Ostrovsky said that suYcient time prior to trial must be informed and interpreted through the filter of the main object and purpose of Rule 69 and of the overall scheme of the Tribunal’s Statute to equally serve the rights of the accused to a fair trial, including the right to be provided information for eVective crossexamination of the witnesses against him, and the mandate of the Tribunal to provide meaningful protection for vulnerable victims and witnesses.

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Blasˇkic´ (IT-95-14-T), Order for the Production of Documents Used to Prepare for Testimony, 22 April 1999. ICTY RPE, Rule 70; ICTR RPE, Rule 70; SCSL RPE, Rule 70.

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The majority ordered the Prosecutor to disclose the information on a rolling basis no later than thirty-five days before the date of testimony of a particular witness, or when the witness comes under the protection of the Tribunal, whichever comes first.293 The issue of disclosure is bound up in the adversarial nature of the proceedings. It is somewhat unfamiliar to lawyers trained in the inquisitorial system that applies to most of continental Europe and many other parts of the world. The conflict in perspectives led to an intriguing development in the Akayesu trial. The evidence disclosed by the Prosecutor had been transmitted to the defence via the Registar, who had apparently seen fit to deliver a copy of the file to the President of the Trial Chamber, a Senegalese magistrate. When the issue became public, the Trial Chamber ordered production of all prosecution witness statements, ‘subject to the caveat that disclosure of all the written statements did not necessarily entail their admissibility as evidence’.294 This would be completely ordinary in an inquisitorial system, like the one in which Judge Kama had worked all of his professional life. There, trial judges have access to the evidentiary file prepared by an instructing magistrate prior to the trial. But this is highly irregular in an adversarial trial, where evidence is only admitted at trial, after its admissibility has been subject to contestation. One of the problems with admitting the Prosecutor’s file, as if it were the dossier of the juge d’instruction, is that a genuine instructing magistrate investigates and collects evidence that is both unfavourable to and favourable to the accused. The prosecutor in an adversarial system does not generally act under the same duty to investigate thoroughly both sides of the case. The Prosecutor’s file is therefore likely to be somewhat one-sided, and the picture of the case it may present to judges could be a distorted one.295 Subsequent to the Akayesu trial, the ICTR RPE were amended to authorise a Trial Chamber or a judge to order the Prosecutor to provide the Trial Chamber with copies of written statements of each witness whom the Prosecutor intends to call to testify.296 No similar amendment was ever made to the ICTY RPE, although this has not prevented Trial Chambers from making such orders, with the eventual approval of the Appeals Chamber. The ICTY Appeals Chamber has said that ‘[w]hether the Disclosure Materials are

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Bagosora et al. (ICTR-98-41-I), Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, 5 January 2002. Akayesu (ICTR-96-4-T), Decision by the Tribunal on its Request to the Prosecutor to Submit the Written Witness Statements, 28 January 1997. The ruling is referred to in the final judgment: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 21. Megan A. Fairlie, ‘The Marriage of Common and Continental Law and its Progeny, Due Process Deficit’, (2004) 4 International Criminal Law Review 243, at pp. 306–309. ICTR RPE, Rule 73bis(B) in fine.

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‘‘necessary’’ to the Trial Chamber in fulfilling its function under the Statute and the Rules is a matter within the discretion of the Trial Chamber’.297 It is of interest that when they revised the ICTR RPE, the judges of the Special Court for Sierra Leone eliminated the provision authorising the Trial Chamber to order production of all witness statements. Perhaps this reflects the fact that the members of the SCSL judiciary are primarily of common-law tradition, and find the measure, which is inspired by inquisitorial proceedings, to be improper. A Trial Chamber did not accept a prosecution argument that it was not required to disclose information about events because these were not covered in any witness statement. The Trial Chamber said that all relevant information that might be dealt with by a witness should be disclosed, even if it does not appear in the statements.298 On several occasions, the Trial Chambers have censured the Prosecutor for failure to respect disclosure Rules, yet have allowed the witness in question to testify, based on the theory that any prejudice can be corrected by giving the defence suYcient time to respond.299 In Furundzˇija, which involved rape and torture, trial proceedings had been concluded when the defence discovered that therapy records of the main complainant had not been disclosed. Whether the records should be disclosed at all was hotly debated, and many argued that this was prejudicial to victims of sexual assault who would, as a consequence of such disclosure, refuse to cooperate with prosecutions. But according to Prosecutor Louise Arbour, ‘[i]n my view, we had to disclose the records. We had to disclose them and then argue vigorously that they were weak, irrelevant and not admissible, but we could not undertake the responsibility to make that decision without telling the court and the defence.’300 The case, which up to that point had gone quickly and was a model for other prosecutions, had to be reopened to allow for new evidence to be admitted.301

Preliminary motions ‘Preliminary motions’ are those that challenge jurisdiction, allege defects in the form of the indictment, seek severance of counts or separate trials, and 297 298 299

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Blagojevic´ et al. (IT-02-60-AR73/AR73.2/AR73.3), Decision, 8 April 2003, para. 18. Nyiramasuhuko et al. (ICTR-98-42-T), Transcript, 21 March 2002. Bagosora et al. (ICTR-98-41-T), Decision on the Defence for Bagosora’s Motion for Postponement or Quashing of the Testimonies of Witnesses Ruggiu, XAM and ZF, 30 September 2002. Arbour, ‘Crimes against Women’, at p. 205. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998. See: William A. Schabas, ‘Furundzˇija, Commentary’, in Andre´ Klip and Goran Sluiter, eds., Annotated Leading Cases of International Criminal Tribunals, The International Criminal Tribunal for the Former Yugoslavia 1997–1999, vol. III, Antwerp: Intersentia, 2001, pp. 753–760.

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raise objections based on the refusal of a request for assignment of counsel.302 The SCSL RPE broaden the scope of ‘preliminary motions’ to include objections based on abuse of process.303 At the ICTY and ICTR, motions on jurisdiction may be appealed as of right to the Appeals Chamber. The initial version of the SCSL RPE allowed a Trial Chamber to decline to hear the motion and refer it immediately to the Appeals Chamber. Following an amendment to Rule 72, preliminary motions on jurisdiction are heard immediately by the Appeals Chamber, with no appeal from its ruling.304 The RPE distinguish between ‘preliminary motions’ and ‘other motions’, which are governed by a separate provision.305 Other motions may concern matters such as protective measures for witnesses, depositions, disclosure of evidence, taking of judicial notice and a range of other matters whose resolution prior to the trial itself is necessary or desirable. Motions other than ‘preliminary motions’ require leave or certification of the Trial Chamber in order to authorise an appeal.306 Appeals Chambers have expressed impatience when certification is granted too readily.307 It was generally agreed that in the early stages of their activities, the tribunals would need to consider a large number of motions, given the uncertainty about questions of procedure and practice. As time went on, however, there was increasing concern about ‘excessive motions’.308 The tribunals have had a very vigorous motions practice, some of it of doubtful value, and to this eVect a Rule was enacted authorising the Registrar to deny payment to counsel funded under the legal aid scheme when a motion is deemed to be frivolous or an abuse of process.309 When a defence counsel

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ICTY RPE, Rule 72(A); ICTR RPE, Rule 72(A). SCSL RPE, Rule 72(B) Norman (SCSL-03-08-PT), Decision on the Applications for a Stay of Proceedings and Denial of Right to Appeal, 4 November 2003. ICTY RPE, Rule 73. On the distinction, see: Kordic´ et al. (IT-95-14/2-PT), Decision on Defence Motion to Clarify, 15 January 1999. This is discussed in greater detail under ‘Appeal’, below at pp. 439–449. Norman et al. (SCSL-04-14-AR73), Decision on Amendment of the Consolidated Indictment, 16 May 2005, paras. 43, 87. Daryl A. Mundis, ‘Improving the Operation and Functioning of the International Criminal Tribunals’, (2000) 94 American Journal of International Law 759, at p. 763. ICTR RPE, Rule 73(D). There are many examples of this, e.g., Ntahobali et al. (ICTR98-42-T), Decision on Ntahobali’s Motion to Rule Inadmissible the Evidence of Witness TN, 1 July 2002; Nahimana et al. (ICTR-99-52-I), Decision on the Defence’s Request to have the Report and the Testimony of Expert Witness Jean Pierre Chre´tien Declared Inadmissible, 31 January 2002 (the defence contested the fact that the Prosecutor had filed documents a day later than the prescribed deadline); Semanza (ICTR-97-20-T), Decision Pursuant to Rule 73(E) in relation to the Defence Extremely Urgent Motion for Review of the Oral Decision of 14 November 2001 (‘the Motion was frivolous and baseless and that it was not supported by any relevant evidence’).

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challenged hearsay evidence as being in principle inadmissible, an ICTR Trial Chamber threatened that in the future ‘it will order, as a sanction, the nonpayment to the defence of all costs and fees associated with the preparation and filing of such frivolous motions’.310 In the case of a motion that was ‘frivolous and an abuse of process’ and that contained ‘abusive and insulting’ statements, but that was filed by a person defending himself, the Bureau noted that it could not sanction such misconduct by withholding of fees. It said that ‘one sanction the Bureau may apply to such filings is to direct the Registrar to deny filing’ and that it could require the applicant to file a new application without the oVensive language. Moreover, ‘[i]f the Applicant were to persist, the Bureau might bar the filing of the application altogether’ and ‘the Trial Chamber may well apply a similar principle’.311

Pre-trial organisation Much of the trial preparation is supervised through an institution known as the ‘Status Conference’. It is convened by the Trial Chamber or a Trial Chamber judge for the purpose of organising exchanges between the parties so as to ensure expeditious preparation for trial, to review the status of the case and to allow the accused the opportunity to raise relevant issues, including his or her mental and physical condition. The ICTY RPE require that a Status Conference be convened within 120 days of the initial appearance, and at least every 120 days subsequently. The RPE of the other two tribunals do not impose any particular delay for the Status Conference, although the SCSL RPE say it must be held ‘as necessary’.312 After preliminary motions have been disposed of, the Prosecutor must file a pre-trial brief, which summarises the evidence he or she intends to present. The brief includes any admissions by the parties, a statement of matters that are not in dispute, as well as a statement of contested matters of fact and law. The brief also provides a list of witnesses the Prosecutor intends to call, the name or pseudonym of each witness, a summary of the facts on which the witness will testify, the counts to which they correspond, and other relevant details. The Trial Chamber may refuse to hear witnesses who have not been listed in the Prosecutor’s pre-trial brief.313 The Prosecutor must estimate the length of time required for the testimony of each witness, as well as the overall length of time required for presentation of the case in chief. Finally, the

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Ntahobali et al. (ICTR-98-42-T), Decision on Ntahobali’s Motion to Rule Inadmissible the Evidence of Witness TN, 1 July 2002. Sˇesˇelj (IT-03-67-PT), Decision on Motion for Disqualification, 10 June 2003. ICTY RPE, Rule 65bis; ICTR RPE, Rule 65bis; SCSL RPE, Rule 65bis. ICTY RPE, Rule 90(G).

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Prosecutor must produce a list of exhibits, and serve copies of them on the defence.314 A ‘Pre-Trial Conference’ is held prior to the commencement of the trial. At the Pre-Trial Conference, the Trial Chamber may call upon the Prosecutor to shorten the estimated length of examination-in-chief for some witnesses. The Trial Chamber determines the number of witnesses that the Prosecutor may call, and the time available to the Prosecutor to present the evidence in chief. One of the main purposes of the exercise is to identify what amounts to a ‘reasonably representative’ sampling of relevant criminal acts.315 Without such a procedure, the Prosecutor might feel compelled to present evidence in an exhaustive manner, lengthening the trial unnecessarily. The rulings made at the Pre-Trial Conference may be revised after the trial has begun if the Trial Chamber is ‘satisfied that this is in the interests of justice’.316 The obligations on the defence at this stage are considerably more modest. Nevertheless, at the Pre-Trial Conference the Trial Chamber or a designated judge may order the defence to file a statement of admitted facts and law and a pre-trial brief addressing the factual and legal issues.317 Only when the Prosecutor’s evidence has been presented, at trial, is the defence required to make comparable submissions. The Pre-Defence Conference takes place in the middle of the trial, prior to the beginning of the case for the defence. At the Pre-Defence Conference, the pre-trial judge may ask the defence to shorten the estimated length of the examination-in-chief of its witnesses, and may set the number of witnesses the defence is entitled to call.318 The principle of ‘equality of arms’ works in both directions and, like the Prosecutor, the defence must submit witness statements suYcient to allow proper presentation of cross-examination, failing which the Prosecutor may obtain the right to interview defence witnesses prior to their testimony.319 At the ICTY, trial preparation is managed by a ‘Pre-Trial Judge’, an institution that is not recognised in the RPE of the other two tribunals. However, the RPE of the ICTR and SCSL allow the Trial Chamber to delegate many of the pre-trial issues, including the Pre-Trial Conference, to a judge of the Trial Chamber, who is named in the RPE as the ‘designated judge’. At the ICTY, the presiding judge of the Trial Chamber appoints the Pre-Trial Judge within seven days of the initial appearance of the accused. The Pre-Trial Judge coordinates communication between the parties, and ensures that everything proceeds expeditiously. Various responsibilities are assigned to the Pre-Trial 314 315 316 317 318 319

ICTY RPE, Rule 65ter(E); ICTR RPE, Rule 73bis(B); SCSL RPE, Rule 73bis(B). ICTY RPE, Rule 73bis(D). ICTY RPE, Rule 73bis(E); ICTR RPE, Rule 73bis(E); SCSL RPE, Rule 73bis(E). ICTY RPE, Rule 65ter(F); ICTR RPE, Rule 73bis(F); SCSL RPE, Rule 73bis(F). ICTY RPE, Rule 73ter; ICTR RPE, Rule 73ter; SCSL RPE, Rule 73ter. Kupresˇkic´ et al. (IT-95-16-T), Decision, 11 January 1999.

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Judge, who may be assisted in his or her work by one of the Senior Legal OYcers assigned to Chambers. The Pre-Trial Judge is to establish a work plan indicating, in general terms, the obligations that the parties are required to meet and the dates by which these obligations must be fulfilled. The Senior Legal OYcer oversees the implementation of the work plan. The Pre-Trial Judge may order the parties to meet to discuss relevant issues in preparation of the case. The Pre-Trial Judge keeps the Trial Chamber regularly informed, particularly where issues are in dispute, and he or she may refer any diViculties to the Trial Chamber.320

Referral to national courts As the work of the tribunals progressed, the RPE were amended in order to allow transfer of defendants in the custody of the international tribunals to national jurisdictions. There had been no provision for this in the first versions of the Rules, and Trial Chambers had actually refused to allow for such transfer in a case where the Prosecutor wished to withdraw an indictment, given the silence of the Statute and the Rules.321 As part of the process of devising completion strategies, both the ICTR and ICTY amended their Rules to facilitate a reduction in case load by returning cases to national tribunals.322 Referral to national courts may be made by a Trial Chamber (known as a ‘Referral Bench’) acting on its own initiative, or at the request of the Prosecutor. The Referral Bench is mandated to determine whether a case for which an indictment has been confirmed, but for which the trial has not commenced, should be forwarded to the authorities of a State for prosecution before their national courts. The referral may be ordered at the request of the Prosecutor or even proprio motu, at the initiative of the Referral Bench. Both the Prosecutor and the accused may make representations to the Referral Bench. Although not specified by amended Rule 11bis, in an early application under this provision the Prosecutor proposed that the authorities of Croatia should also be given the opportunity to be heard.323 If referral is authorised, the Prosecutor is to provide the authorities of the State with ‘the information relating to the case which the Prosecutor considers appropriate’.

320 321

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ICTY RPE, Rule 65ter. Ntuyahaga (No. ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999. ICTY RPE, Rule 11bis; ICTR RPE, Rule 11bis. Since the original amendment of Rule 11bis in the context of the completion strategy, the ICTY plenary has amended the Rule three more times, on 10 June 2004, 28 July 2004 and 11 February 2005. On the completion strategy, see above at pp. 40–43. Ademi et al. (IT-04-78-PT), Request by the Prosecutor Under Rule 11bis, 2 September 2004, para. 28.

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The Prosecutor may send observers to monitor the trials before national courts. The Prosecutor and the accused have an appeal of right from a decision to refer a case.324 At any time after a referral order has been issued and before conviction or acquittal in the national court, the Trial Chamber may rescind such an order, and ask that the accused be transferred back to the International Tribunal for trial. The Referral Bench must be satisfied that the accused will receive a fair trial in the national jurisdiction. Additionally, the ICTY RPE impose upon the Trial Chamber a duty to ensure that the death penalty will not be imposed or carried out. Although the same condition is not explicitly included in the ICTR RPE, it seems unthinkable that a United Nations Tribunal could facilitate a national prosecution that might lead to capital punishment of the oVender.325 The silence of the ICTR RPE is disturbing because, unlike Europe, where capital punishment has been eVectively abolished, many of the African States susceptible of having cases referred to them, including Rwanda itself, still retain the death penalty. ICTY Rule 11bis requires that in taking the decision, the Trial Chamber is to ‘consider the gravity of the crimes charged and the level of responsibility of the accused’. The Rule also makes specific reference to Security Council Resolution 1534, which instructs the tribunals to ensure that indictments ‘concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal’ and to refer other cases to national courts.326 ICTR Rule 11bis authorises referral to ‘any State that is willing to prosecute the accused in its own courts’. ICTY Rule 11bis uses the phrase ‘willing and adequately prepared to accept such a case’. The RPE also require that the State have jurisdiction. Implicitly, of course, the judges are suggesting that international law recognises universal jurisdiction for the core crimes within the jurisdiction of the international tribunals. An earlier version of Rule 11bis allowed referral only to the State where the crime was committed, or where the accused had been arrested. The first referral was made by the ICTY in May 2005, following a contested hearing. Radovan Stankovic´ was accused of responsibility for ‘Karaman’s house’, which was used to detain at least nine Muslim women and girls who were subjected to repeated rapes and sexual assaults. Stankovic´ was alleged to have assigned the women and girls to specific Serb soldiers to be raped and 324 325

326

ICTY RPE, Rule 11bis; ICTR RPE, Rule 11bis. There is strong support in international human rights law for a prohibition on extradition or transfer where capital punishment may be imposed. See: Charter of Fundamental Rights, OJ C 364/1, 18 December 2000, art. 19; Judge v. Canada (No. 829/1998), UN Doc. CCPR/C/78/D/829/1998, 20 October 2003. UN Doc. S/RES/1534 (2004), paras. 4–5.

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otherwise sexually assaulted. He was also charged with having personally raped at least two women on a repeated basis over a period of three months. The Referral Bench agreed with the Prosecutor that the case was appropriate for referral, given that the accused was an infantry soldier with no formal military rank or political position, falling within the category of low- to intermediate-level perpetrators. In granting the application, the Referral Bench reviewed various aspects of the justice system within Bosnia and Herzegovina, noting that the death penalty had been abolished, and that the accused would be tried before the newly established War Crimes Chamber of the State Court of Bosnia and Herzegovina.327 The ICTY Prosecutor has also initiated proceedings for referral of cases to Croatia.328

Grant of immunity In some jurisdictions, it is not at all unknown for a Prosecutor to promise immunity from prosecution to an individual in exchange for testimony against other perpetrators. The idea was considered, and rejected, at the time the ICTY Statute was being drafted. According to one of the lawyers who worked on the text, ‘[t]o explicitly provide for such a possibility in the Statute was deemed to be highly inappropriate for crimes of this magnitude and viciousness’.329 Nevertheless, on 17 May 1995, Richard Goldstone issued ‘Prosecutor’s Policy on Nolle Prosequi of Accomplices’, which set out the conditions under which an accused might be granted a form of immunity in return for testimony. The document concluded that ‘it is permissible, provided the accomplice agrees to truthfully give certain specified testimony against the suspect in a prosecution . . . for the Prosecutor not to indict the accomplice’.330 There is no evidence of the Regulation ever being applied or invoked.

327 328

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Stankovic´ (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11bis, 17 May 2005. Ademi et al. (IT-04-78-PT), Request by the Prosecutor Under Rule 11bis, 2 September 2004. Larry D. Johnson, ‘Ten Years Later: Reflections on the Drafting’, (2004) 2 Journal of International Criminal Justice 368, at p. 372. Prosecutor’s Regulation No. 1 of 1994, 17 May 1995.

11 Trial and post-trial procedure

Conduct of trials and post-trial proceedings is described in only the most general of terms in the statutes of the three international tribunals. They acknowledge the right of the accused to appeal a conviction, something enshrined in article 14(5) of the International Covenant on Civil and Political Rights. Trial Chambers are directed to ensure that trials are ‘fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses’.1 But in terms of the actual procedure to be followed, the statutes are extremely laconic. By way of explanation, the report of the Secretary-General that accompanied the draft ICTY Statute said only: ‘The hearings should be held in public unless the Trial Chamber decides otherwise in accordance with its rules of procedure and evidence. After hearing the submissions of the parties and examining the witnesses and evidence presented to it, the Trial Chamber would close the hearing and retire for private deliberations.’2 There are quite diVerent approaches to trial procedure in national justice systems. Very approximately, they are divided into two broad systems, described as ‘adversarial’ and ‘inquisitorial’. The initial Rules of Procedure and Evidence, that set out in detail the trial procedure, were based on a draft submitted by the American Bar Association that broadly reflected the adversarial approach. Years of subsequent practice before the tribunals, and regular amendments to the RPE, have resulted in an increasingly hybrid system of procedure. The tribunals have become a virtual laboratory of comparative criminal law, with important contributions resulting from the very diverse backgrounds of the judges and lawyers who practise before them, as well as the very specific and unique needs of an international criminal justice system.

1 2

ICTY Statute, art. 20; ICTR Statute, art. 19. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), paras. 103–104.

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The Rules refer to ‘the parties’, of which there are two, the Prosecutor and the defence.3 The Prosecutor is normally represented by counsel from his or her oYce, although in important cases it is not unknown for the Prosecutor to participate personally in a hearing. The term ‘defence’ refers to the accused and/or the accused’s counsel.4 Exceptionally, other ‘parties’ participate in the proceedings. It is also possible for States and organisations to intervene in proceedings when they have direct interests at stake. For example, the Republic of Croatia took proceedings before the ICTY to quash a subpoena issued against it for the production of documents. Bosnia and Herzegovina also participated in the proceedings.5 Rwanda has also intervened on occasion.6 Moreover, Rule 108bis of the ICTY RPE specifically acknowledges the right of a State that is directly aVected by a decision of a Trial Chamber to appeal the decision. The International Committee of the Red Cross participated in an ex parte and confidential hearing before the Trial Chamber concerning the privileged nature of testimony that one of its former employees was proposing to provide in a case.7 Belgium has participated in proceedings, and even initiated them, before the ICTR.8 At the SCSL, the Sierra Leone Truth and Reconciliation Commission intervened in proceedings to determine whether a detained witness could testify before it.9 The Rules also authorise the appointment of an amicus curiae (literally, ‘friend of the court’). This is explained as follows: ‘A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified

3

4 5

6 7

8

9

When the ICTR Registrar attempted to file a brief during proceedings, the Prosecutor successfully challenged this on the grounds that he was not a ‘party’ to the proceedings: Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999, p. 3. ICTY RPE, Rule 2; ICTR RPE, Rule 2; SCSL RPE, Rule 2. Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997. Barayagwiza (ICTR-97-19-AR72), Order, 8 December 1999. Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999. Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999. Belgium also intervened as amicus curiae in Bagosora (ICTR-96-7-T), Decision on the Amicus Curiae Application by the Government of the Kingdom of Belgium, 6 June 1998. Norman (SCSL-03-08-PT), Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman, 29 October 2003; Norman (SCSL-03-08-PT), Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone and Chief Samuel Hinga Norman JP Against the Decision of His Lordship, Mr Justice Bankole Thompson, Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing With Chief Samuel Hinga Norman JP, 28 November 2003.

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by the Chamber.’10 Amici have included non-governmental organisations, individual experts and even governments.

Trial Composition of the bench Trials are held before a bench of three judges. A proposal that trial proceed before a single judge, which would have had the potential to triple the number of cases heard, was rejected because the ‘credibility of international justice would be too seriously aVected’.11 The judges hear the evidence, as well as the arguments of the parties. They play a relatively passive role in the examination of witnesses, leaving this to direct questioning by the party presenting the witness and cross-examination by the other party. Some judges tend to intervene more than others, a function of their legal traditions as well as their personalities. As they may have done in pre-trial proceedings, the trial judges typically make a large number of interlocutory rulings in the course of a trial, concerning issues of both evidence and procedure. Verdicts are delivered by an absolute majority12 and, though a rare occurrence, it is possible for a person to be convicted even if one of the three judges has a ‘reasonable doubt’ about the guilt of the accused. In principle, the three judges must be present at all stages of the trial. The initial version of the ICTY RPE allowed a trial to continue where one judge was absent ‘for illness or other urgent personal reasons’ to the extent that the two remaining members of the bench were ‘satisfied that it is in the interests of justice to do so’, but not for a period exceeding three days.13 The Rule was later amended to allow a two-judge bench to proceed with a trial for a maximum of ‘five working days’.14 More dramatic is the scenario of a judge whose absence, for death, illness, resignation or failure to obtain re-election, is likely to be too long for such a temporary solution. Given the length of the trials, not to mention the age of the judges, this is more than a theoretical issue. The simplest but also the most cumbersome and awkward solution is to start the trial again (de novo). This was the approach taken at the ICTR following the sudden death of Judge Laity Kama.15 Replacing the judge and continuing the trial is a more attractive 10 11

12 13 14 15

ICTY RPE, Rule 74; ICTR RPE, Rule 74; SCSL RPE, Rule 74. ‘Report on the Operation of the International Tribunal for the Former Yugoslavia, Submitted by Judge Claude Jorda, President, on Behalf of the Judges of the Tribunal’, UN Doc. A/55/382-S/2000/865, Annex I, para. 81. ICTY RPE, Rule 98ter(C); ICTR RPE, Rule 87(A); SCSL RPE, Rule 87(A). ICTY RPE, Rule 15bis. ICTY RPE, Rule 15bis(D). Kamuhanda (ICTR-99-54-T), Minutes of Proceedings, 3 September 2001; Kajelijeli (ICTR -98-44A-T), Minutes of Proceedings, 2 July 2001.

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option for several reasons. In such a case, the original version of the ICTY RPE said that the trial could continue with a replacement judge, but only with the consent of the accused. In Blasˇkic´, a judge was replaced, with the consent of the accused as the RPE then required.16 The rule was amended, in December 2002, to allow for a trial to continue with a replacement judge even if the accused did not consent. Under the revised version, the remaining judges may decide to proceed with a substitute judge ‘if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice’ (the word ‘unanimously’ seems out of place, given that there are only two judges involved). In such a case, the new judge assigned by the President can only join the bench after certifying that he or she has familiarised himself or herself with the record of the proceedings. The Rules only allow for one such substitution in a trial. In such a proceeding, it is the two remaining judges who act on their own initiative, exercising their own discretion; there is no burden of proof on either party.17 The decision of the two judges is subject to an appeal of right.18 The amended Rule, allowing for replacement without the accused’s consent, was first invoked in late 2003 when one of the sitting judges in the ICTR’s part-heard ‘Butare trial’ was not re-elected.19 It has since been applied in several ICTY and ICTR cases. Rule 6(C) of the RPE states that an amendment to a rule ‘shall not operate to prejudice the rights of the accused in any pending case’. It has been held that the amended Rule 15bis is not a provision that operates to the prejudice of the rights of the accused. The ICTR Appeals Chamber noted that the initial version of the Rule, which required the consent of the accused, ‘though apparently absolute’ was actually ‘not proprietorial but functional. The right to consent gave protection against possible arbitrariness in the exercise of the power of the Tribunal to continue the hearing with a substitute judge; consent was only a safeguard.’20 The Chamber said that the safeguard was replaced by a ‘safeguard of equivalent value’:

16 17

18 19

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Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 20–21. Karemera et al. (ICTR-98-44-AR15bis.2), Reasons for Decision on Interlocutory Appeals Regarding Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 52. Also: Krajisnik (IT-00-39&40), Decision Pursuant to Rule 15bis(D), 16 December 2004. ICTY RPE, Rule 15bis(D). Nyiramasuhuko et al. (ICTR-98-42-A15bis), Decision in the Matter of Proceedings Under Rule 15bis(D), 24 September 2003. See: Daryl A. Mundis and Fergal Gaynor, ‘Current Developments at the ad hoc International Criminal Tribunals’, (2004) 2 Journal of International Criminal Justice 674. Nyiramasuhuko et al. (ICTR-98-42-A15bis), Decision in the Matter of Proceedings Under Rule 15bis(D), 24 September 2003, para. 17.

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The new Rule 15bis contains various safeguards: the decision by the two remaining judges is a judicial one; it is taken after hearing both sides; the two remaining judges know the case as it has so far developed; their decision must be unanimous; an appointment can only be made once. Further, there is an unqualified right of appeal by either party from the decision taken by the two remaining judges direct to a full bench of the Appeals Chamber. Finally, in cases where the Appeals Chamber aYrms the Trial Chamber’s decision or if no appeal is lodged, the newly assigned judge must certify that he has familiarised himself with the record of the proceedings; if he cannot give the required certificate of familiarisation, he cannot eventually be substituted.21

The ‘interests of justice’ standard is vague, and much discretion is left to the two judges who make the determination. In this context, shortly before resigning, Judge David Hunt warned of the danger that the Security Council’s endorsement of the ‘completion strategy’ of the Tribunal ‘should not be interpreted as an encouragement by the Security Council to either Tribunal to conduct its trials so that they would be other than fair trials’.22 In Nyiramasuhuko, the two remaining judges on the ICTR Trial Chamber juxtaposed the right of the accused to a fair trial, which may have dictated a new trial, with the right of those in custody awaiting trial, whose court dates would then be further delayed. Accused persons whose trials have not yet begun also do have a right to trial without undue delay. While about 18 accused persons (including the Butare Accused) are currently on trial, a far greater number (about 31 at the moment) are still in this Tribunal’s detention awaiting the commencement of their own trials. Any undue delay in the trial of an ongoing case will, in turn, aVect the speedy trial rights of other accused persons awaiting trial.23

In balancing the competing options, the tribunals have not deemed it useful ‘to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge . . . The stage reached in each

21 22

23

Ibid., para. 18. Nyiramasuhuko et al. (ICTR-98-42-A15bis), Dissenting Opinion of Judge Hunt, 24 September 2003, para. 17. See also his admonition that the completion strategy had inspired a trend in the Appeals Chamber to ‘reverse or ignore its previously carefully considered interpretations of the law or of the procedural rules, with a consequential destruction of the rights of the accused enshrined in the Tribunal’s Statute and in customary international law’. Milosˇevic´ (IT-02-54-AR73.4), Dissenting Opinon of Judge David Hunt, 30 September 2003, para. 20. Nyiramasuhuko et al. (ICTR-98-42-T), Decision in the Matter of Proceedings under Rule 15bis(D), 15 July 2003, para. 33(g).

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case need not always be the same.’24 In a case where a substitute judge was allowed, the two-judge panel making the Rule 15bis determination observed that just over one-third of the prosecution witnesses had been heard, and that in their view a substitute judge would have little diYculty mastering the case within a reasonable amount of time. ‘The fidelity and accessibility of the trial record in this case is so high (video-recording of proceedings, accurate transcripts, extensive reliance on printed exhibits, significant reliance on filmed and taped evidence) that the diVerence between a first-hand experience of the case so far, and a second-hand review of it, is very limited’, they said. They also remarked that the trial had been without irregularities, a factor that would weigh in favour of de novo proceedings.25 When a judge withdrew from a trial that was underway, after a motion for disqualification had been filed, the remaining two judges on the ICTR Trial Chamber, both of them ad litem judges, authorised the continuation of the case with a substitute judge.26 The decision was overturned by the Appeals Chamber, in a summary judgment, which said the two judges had erred in the exercise of their discretion.27 In its detailed reasons, the Appeals Chamber fixed on some erroneous considerations in the assessment by the two remaining judges, but seemed principally influenced by the fact that the judge who had withdrawn had been compromised by a personal relationship with a member of the prosecution team, and that this had in some way tainted the remaining two judges.28 In Bagosora et al., trial finally began after lengthy delays, but was then suspended sine die pending the completion of other trials. Because of nonre-election, an entirely new Trial Chamber had to be reassigned to the case. The Prosecutor wanted to begin the trial from the beginning, while the defence took the position that the new Trial Chamber could pick up where the previous one had left oV, relying on transcripts of the testimony that had already been heard. The ICTR acknowledged that Rule 15 did not expressly apply in such a case, but accepted defence arguments based upon the very

24 25 26

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28

Ibid., para. 27. Krajisnik (IT-00-39&40), Decision Pursuant to Rule 15bis(D), 16 December 2004. Karemera et al. (ICTR-98-44-AR15bis.2), Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 58. Karemera et al. (ICTR-98-44-AR15bis.2), Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 28 September 2004, para. 8. Karemera et al. (ICTR-98-44-AR15bis.2), Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004. Judge Shahabuddeen did not think it necessary to address the issue of apprehension of bias by the disqualified judge. Judge Schomburg dissented, and would have allowed the trial to continue.

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lengthy delays in the proceedings. The Trial Chamber attached considerable importance to the fact that it was the right of the defence to a fair and speedy trial that was at issue, and that it had waived any objection to proceeding without rehearing the witnesses. According to the Trial Chamber: The interests of judicial economy and simplicity strongly favour continuation of the trial in the circumstances before the Chamber. Attempting to commence the trial de novo would raise a host of procedural issues that have already been the subject of many rounds of argument, deliberation and decision. Trial Chamber III issued at least thirty-two written decisions in preparation for trial, none of which would necessarily be immune from challenge upon a trial de novo. Judicial economy would not be served by forcing the Parties back into the position of zealously revisiting the very same procedural issues to which significant resources have already been devoted. Neither the rights of the Accused nor the interests of justice are in any way impaired by continuing the trial on the basis of these decisions.29

A judge may be disqualified in any case in which he or she has a personal interest, or some other association, which might aVect his or her impartiality. The test is one of a ‘reasonable apprehension of bias’.30 In Furundzˇija, the ICTY Appeals Chamber said ‘there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias’. The Appeals Chamber said that aside from the case where actual bias exists, there is an unacceptable appearance of bias if a judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. As for apprehended bias, the Appeals Chamber said that the ‘reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold’.31 Judges benefit from a presumption of impartiality, which can only be rebutted on the basis of adequate and reliable evidence.32 In any such circumstance the judge concerned is to withdraw; the President assigns another judge to the case. Where either party contests, the decision to disquality the judge is to be made by the Bureau, in the case of the ICTY

29

30

31 32

Bagosora et al. (ICTR-98-41-T), Decision on Continuation or Commencement de novo of Trial, 11 June 2003. Karemera et al. (ICTR-98-44-T), Decision on Motion by Nzirorera for Disqualification of Trial Judges, 17 May 2004. Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, paras. 189–190. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 91.

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and ICTR, and by the remaining members of the Chambers to which the judge belongs, in the case of the SCSL. There have been several examples of applications for disqualification in the practice of the tribunals. The only successful one concerned President GeoVrey Robertson, of the Special Court for Sierra Leone. His independence and impartiality was questioned because of comments he had made about crimes committed by certain combatants in the Sierra Leone civil war in his celebrated book, Crimes Against Humanity, The Struggle for Global Justice. Robertson had described one of the leaders of the combatant forces, Foday Sankoh, who was actually accused before the Court until his death in August 2003, as ‘the nation’s butcher’. More generally, he had made pejorative observations about the Revolutionary United Front, several members of whom had pending cases before the Court. Robertson refused to withdraw from the case, leaving the remaining four judges of the Appeals Chamber to rule that he should not sit in specific cases. The motion to disqualify submitted by the defence was actually supported by the Prosecutor.33 According to Judge George King, who drafted the reasons, with which the other three members of the Appeals Chamber concurred: The learned justice is certainly entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.34

The Appeals Chamber concluded that Judge Robertson could continue to sit in the cases that did not involve accused members of the RUF. The ICTY Appeals Chamber dismissed as ‘frivolous’ the challenges by accused Vojislav Sˇesˇelj to Judges Schomburg, Mumba and Agius, members of the Trial Chamber assigned to his case, on grounds of nationality and religion. Sˇesˇelj said that the judges possess ‘certain personal characteristics which completely preclude them from being impartial’. He said that Germany, of which Judge Schomburg is a national, has ‘traditionally been hostile towards Serbia and the Serbian people’. Moreover, he argued that because Germany is a member of the North Atlantic Treaty Alliance whose people ‘committed aggression against Serbia’, Judge Schomburg should be disqualified. Sˇesˇelj described Judges Mumba and Agius as ‘ardent and zealous Catholics’, adding that the Roman Catholic Church had ‘contributed to the 33

34

Sesay (SCSL-04-15-AR15), Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, 13 March 2004, para. 7. Ibid., para. 15.

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destruction of Yugoslavia’. The Bureau said ‘the nationalities and religions of Judges are, and must be, irrelevant to their ability to hear the cases before them impartially’.35 In Furundzˇija, the accused challenged the impartiality of Judge Mumba because she had served as the Zambian delegate to the United Nations Commission on the Status of Women, and could be said to share its feminist legal and political agenda. He did not charge that she was actually biased, but noted that other participants in the proceedings, notably one of the prosecution lawyers and members of an amicus curiae team, had also been involved with the Commission. According to the ICTY Appeals Chamber, even if Judge Mumba shared the goals and objectives of the Commission, which were to promote and protect the human rights of women, ‘she could still sit on a case and impartially decide upon issues aVecting women’.36 The Appeals Chamber observed that the Statute encouraged judges to be qualified in the area of international human rights, noting that a judge should not be disqualified ‘because of qualifications he or she possesses which, by their very nature, play an integral role in satisfying the eligibility requirements . . . It would be an odd result if the operation of an eligibility requirement were to lead to an inference of bias.’37 A challenge to Judge Odio-Benito based on her membership on the Board of Trustees of the United Nations Voluntary Fund for the Relief of Victims of Torture met a similar fate.38 Similarly, the SCSL Appeals Chamber dismissed a challenge to Judge Winter, seeking her recusal from a motion on the legality of the crime of recruiting child soldiers. The defence argued that she had long been associated with a variety of children’s rights organisations, and more specifically had participated in a UNICEF publication relevant to the work of the SCSL that supported prosecution of the oVence of recruitment.39 When her term came to an end, in 1997, and she was not re-elected, Judge Odio-Benito was appointed Vice-President of Costa Rica. She took the oath of oYce for that position prior to completing an ongoing trial. The defence argued that having become a member of the executive branch of Costa Rica, 35 36 37 38 39

Sˇesˇelj (IT-03-67-PT), Decision on Motion for Disqualification, 10 June 2003. Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 200. Ibid., para. 205. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 697–699, 707. Norman (SCSL-04-04-14-PT), Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers, 28 May 2004. Judge Winter reacted angrily, calling for the recusal of Judge Robertson from the hearing of the motion. She charged that there had been ‘improper collaboration’ between Judge Robertson and one of the defence counsel who happened to work in the chambers of which Judge Robertson was head. See: Norman (SCSL-04-04-14-PT), Justice Winter’s Response to Motion to Recuse her from Deliberating on the Preliminary Motion on the Recruitment of Child Soldiers, para. 19.

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she had ceased to possess the criteria required for an independent judge and had acquired an association which might aVect her impartiality. The Bureau observed that her nomination as Vice-President of Costa Rica had been approved in advance by the Plenary, based on her commitment not to assume any of the functions of that oYce until the completion of her duties as a member of the Trial Chamber. The Plenary also authorised her to take the oath of oYce. Citing authority from the European Court of Human Rights, the Bureau did not consider there to be grounds for disqualification: ‘[T]he mere fact that a person who exercises judicial functions is to some extent subject, in another capacity, to executive supervision, is not by itself enough to impair judicial independence.’40 The Appeals Chamber upheld the findings.41

Presence of the accused at trial The accused has a fundamental right to be present at trial. The SecretaryGeneral’s report accompanying the draft ICTY Statute said: ‘A trial should not commence until the accused is physically present before the International Tribunal. There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence.’42 In fact, the case law of the Human Rights Committee, which is the authoritative interpreter of the Covenant, has not ruled out in absentia trials, providing that the accused has been properly informed of the proceedings and is in a position to attend.43 In Maleki v. Italy, the Committee held that a violation of this right might be remedied if the accused is entitled to a retrial in his or her presence after apprehension.44 The statutes do not expressly prohibit in absentia trials, although it has been argued that this is implicit,45 because they provide that a trial will proceed once the defendant is ‘taken into custody’46 and that one of the 40

41 42

43

44 45

46

Delalic´ et al. (IT-96-21-T), Decision of the Bureau on Motion on Judicial Independence, 4 September 1998. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 651–693. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 101. Also: Ralph Zacklin, ‘Some Major Problems in the Drafting of the ICTY Statute’, (2004) 2 Journal of International Criminal Justice 361, at pp. 364–365. Mbenge v. Zaire (No. 16/1977), UN Doc. CCPR/C/OP/2, 25 March 1983, p. 76, paras. 14.1, 21. Also ‘General Comment 13/21’, UN Doc. A/39/40, para. 11. Maleki v. Italy (No. 699/1996), UN Doc. CCPR/C/66/D/699/1996, 27 July 1999, para. 9.5. Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) 93 American Journal of International Law 57, at p. 75. ICTY Statute, art. 20(2); ICTR Statute, art. 19(2). These words do not appear in the SCSL Statute, leaving open the argument that an in absentia trial might be permitted.

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defendant’s rights is ‘to be tried in his presence’.47 Former ICTY President McDonald described the issue as ‘one of the most contentious issues’ at the first Plenary of judges.48 This was a source of tension between jurists from diVerent legal systems, there being a rather common perception that in absentia trials were prohibited under common law regimes (not exactly true; there are some important exceptions to the right to be present at trial) and generally accepted under so-called ‘civil law’ systems. At the time, President Cassese referred to the ‘Tribunal’s decision not to allow trials in absentia by creating a special procedure’, implying that in his view the ICTY was not barred from holding in absentia trials.49 Early critics of the ICTY who predicted it would be stillborn and unable to prosecute unless it undertook in absentia trials proved to be wrong.50 Even the partial substitute for in absentia trials, known as the Rule 61 procedure,51 was soon found to be of little interest once real defendants began arriving in The Hague. The other two tribunals have never been short of important defendants. As the ICTY Appeals Chamber has remarked, generally speaking, it would not be appropriate to hold in absentia proceedings against persons falling under the primary jurisdiction of the International Tribunal . . . Indeed even when the accused has clearly waived his right to be tried in his presence (Article 21, paragraph 4(d) of the Statute), it would prove extremely diYcult or even impossible for an international criminal court to determine the innocence or guilt of that accused.52

The expert group that reported in 1999 on measures susceptible of expediting proceedings at the ICTY suggested that in absentia trials be considered in the case of an accused who has voluntarily surrendered, acting on the assumption that it would be permissible to waive the right to be present. This was driven by a desire to permit provisional release. In eVect, if a defendant were

47 48

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50 51 52

The SCSL might be tempted to proceed in this way against its famous outstanding defendant, Charles Taylor, who was granted asylum in Nigeria. ICTY Statute, art. 21(4)(d); ICTR Statute, art. 20(4)(d); SCSL Statute, art. 17(4)(d). Gabrielle Kirk McDonald, ‘Trial Procedures and Practices’, in Gabrielle Kirk McDonald and Olivia Swaak-Goldman, eds., The Law and Enforcement of International OVenses – The Experiences of International and National Courts, vol. I, The Hague: Kluwer Law International, 2000, pp. 547–622, at p. 554. Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 198. See the discussion in: Mark ThieroV and Edward A. Amley, Jr, ‘Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61’, (1998) 23 Yale Journal of International Law 231, at p. 261. ThieroV and Amley, ‘Proceeding to Justice’, at p. 260. See above at pp. 382–383. Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 59.

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to waive the right to be present at trial, and thereby accept the possibility of in absentia trial in the event of failure to appear for trial, provisional release would be a more acceptable option. An amendment to the Rules was proposed by the experts, but was never acted upon by the judges, who concluded that in the event of in absentia proceedings a trial de novo would eventually be required once custody of the accused was obtained, and that the proposed procedure would actually increase the workload of the Tribunal.53 Of course, the accused may waive the right to be present at trial. Some defendants have refused to attend in court as a way of protesting rulings by the bench. For example, on the first day of trial, counsel for Jean-Bosco Barayagwiza told the ICTR Trial Chamber that their client would not be attending the trial, and that he had instructed them not to represent him, all of this ‘based on his inability to have a fair trial due to the previous decisions of the Tribunal in relation to his release’. Barayagwiza personally issued a statement ‘refusing to associate himself with a show trial’ and insisting that ‘the ICTR was manipulated by the current Rwandan government and the judges and the prosecutors were the hostage[s] of Kigali’.54 The Trial Chamber said that ‘Barayagwiza was entitled to be present during his trial and had chosen not to do so, and the trial would proceed nonetheless. The Chamber also stated that he would be free to attend whenever he changed his mind.’ Counsel were ordered to continue representing Barayagwiza.55 They attended at court until February 2001, and then informed the Trial Chamber that their mandate had been terminated. A new counsel, Giacomo BarlettaCalderera, was soon appointed for Barayagwiza, and he represented him for the duration of the trial, but Barayagwiza never attended personally.56 Several accused at the SCSL have also boycotted the proceedings. The Trial Chamber said that though in essence trial in the absence of an accused person is an extraordinary mode of trial, yet it is clearly permissible and lawful in very limited circumstances. The Chamber opines that it is a clear indication that it is not the policy of the criminal law to allow the absence of an accused person or his disruptive conduct to impede the administration of justice or frustrate the ends of justice. To allow such an eventuality to 53

54

55

56

Daryl A. Mundis, ‘Improving the Operation and Functioning of the International Criminal Tribunals’, (2000) 94 American Journal of International Law 759, at pp. 760– 762. Mercedeh Momeni, ‘Why Barayagwiza is Boycotting his Trial at the ICTR: Lessons in Balancing Due Process Rights and Politics’, (2001) 7 ILSA Journal of International and Comparative Law 315, at pp. 315–316. Barayagwiza (ICTR-97-15-T), Decision on Defence Counsel Motion to Withdraw, 2 November 2000. Similarly, Gbao (SCSL-04-15-T), Gbao – Decision on Application to Withdraw Counsel, 6 July 2004. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 83.

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prevail is tantamount to judicial abdication of the principle of legality and a capitulation to a frustration of the ends of justice without justification.57

An accused may lose his or her right to be present for misconduct in the courtroom. Rule 80(B) allows a Trial Chamber to ‘order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct’.58 With reference to this provision, the ICTY Appeals Chamber reasoned that it was also legitimate to restrict an accused person’s right to self-representation any diVerently.59 The SCSL RPE state that in the event of removal, provision should be made for the accused to follow the proceedings by video link, where possible.60 Presence at trial is related to the issue of fitness to stand trial, raising questions of both the physical and mental health of the accused. A trial should not proceed when an accused is too ill to attend. The Rules allow the Trial Chamber, either on its own initiative or at the request of a party, to order a medical, psychiatric or psychological examination of the accused.61 Judges have hinted that they have been tempted to proceed with the Milosˇevic´ trial in the absence of the accused, whose medical condition regularly results in postponements. The Prosecutor has argued that Milosˇevic´ sabotaged his medication regimen to induce periods of poor health artificially, but the Trial Chamber explicitly declined to make a finding of fact on this point.62 The Appeals Chamber suggested that intentional obstructionism of this kind, in principle, might well justify the imposition of counsel on an unwilling defendant. It did not refer to whether or not a trial might proceed in the absence of a defendant, but this would seem implicit in its decision.63 57

58

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61 62

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Gbao (SCSL-04-15-T), Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 June 2004, para. 8. Also: Norman et al. (SCSL-04-14-PT), Ruling on the Issue of Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings, 1 October 2004; Sesay et al. (SCSL-04-15-T), Ruling on the Issue of the Refusal of the Accused Sesay and Kallon to Appear for their Trial, 19 January 2005. The texts of Rule 80(B) in the three RPE diVer slightly, although their substance is the same. Milosˇevic´ (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 14. SCSL RPE, Rule 80(B). The Prosecutor has proposed that a video link be established so that the Milosˇevic´ trial can proceed in the absence of the defendant, so as to ensure that the case proceeds in his ‘eVective presence’: Milosˇevic´ (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, para. 22. ICTY RPE, Rule 74bis; ICTR RPE, Rule 74bis; SCSL RPE, Rule 74bis. Milosˇevic´ (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, para. 67. Milosˇevic´ (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 18, fn. 55.

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Public nature of proceedings In principle, proceedings before the tribunals are public.64 After a routine security screening, persons interested in observing the proceedings may watch the trial from a visitors’ gallery, which is separated from the courtroom by glass. Often there is an interesting collection of curious onlookers, touring lawyers and law students, journalists and persons who seem to have some connection with the accused.65 Some of the proceedings have even been disseminated by webcast. However, a Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of ‘public order or morality’, safety and security, non-disclosure of the identity of a victim or witness, and the protection of the interests of justice.66

Guilty plea procedure The initial version of the ICTY RPE made no provision for guilty pleas. Guilty pleas were generally associated with the controversial practice of plea bargaining that is widespread in some common law jurisdictions. Plea bargaining often involves a negotiated settlement between prosecutor and defence counsel by which the accused pleads guilty in exchange for a change in the crimes charged to lesser oVences as well as an agreement on some common proposal to the judge with respect to an appropriate sentence.67 A guilty plea does not mean that an individual can consent to be found guilty in the absence of evidence that he or she did in fact commit a crime within the jurisdiction of the Tribunal and ‘[i]t is still necessary for the Judges to find something in the elements of the case upon which to base their conviction both in law and in fact that the accused is indeed guilty of the crime’.68

64 65

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ICTY RPE, Rule 78; ICTR RPE, Rule 78; SCSL RPE, Rule 78. For an account of trial observation by an academic working on a study of the tribunals, see: David Hirsh, Law Against Genocide, Cosmopolitan Trials, London: Glasshouse Press, 2003. Blasˇkic´ (IT-95-14-T), Decision of Trial Chamber I on the Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, 12 May 1999. Michael Bohlander, ‘Plea-Bargaining before the ICTY’, in Richard May et al., eds., Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, The Hague: Kluwer Law International, 2001, pp. 151–163; Nancy Amoury Combs, ‘Copping a Plea to Genocide: The Plea Bargaining of International Crimes’, (2002) 151 University of Pennsylvania Law Review 1; Nina H. B. Jrgensen, ‘The Genocide Acquittal in the Sikirica Case Before the International Criminal Tribunal for the Former Yugoslavia and the Coming of Age of the Guilty Plea’, (2002) 15 Leiden Journal of International Law 389. Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 25. Also: Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, paras. 23–26.

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The first convictions at both the ICTY and the ICTR resulted from guilty pleas, catching the judges somewhat by surprise. At the ICTY, a young combatant, Drazan Erdemovic´, who had been summoned to The Hague to testify in a Rule 61 hearing, confessed to his participation in the Srebrenica massacre. He was quickly indicted and, on his initial appearance, oVered a guilty plea. The Trial Chamber and the Appeals Chamber both struggled with defining the appropriate procedure in such cases. The Erdemovic´ Trial Chamber was presided by Judge Claude Jorda, a French magistrate who was uncomfortable with the whole business of guilty pleas. Jorda and his two colleagues accepted the guilty plea, after confirming that both formal and substantive conditions were met. The judgment explained: The Trial Chamber would first point out that the choice of pleading guilty relates not only to the fact that the accused was conscious of having committed a crime and admitted it, but also to his right, as formally acknowledged in the procedures of the International Tribunal and as established in common law legal systems, to adopt his own defence strategy. The plea is one of the elements which constitute such a defence strategy.69

After assessing whether Erdemovic´ was sane enough to understand the nature of his plea, and after considering whether a valid justification or excuse to the charge might exist despite his acceptance of guilt, the Trial Chamber concluded that he was guilty of crimes against humanity and sentenced him to ten years’ imprisonment. Erdemovic´ was stunned at the sentence. Perhaps he was promised something significantly less by both the Prosecutor and his own counsel. On appeal, the guilty verdict was reversed because the ICTY Appeals Chamber found that Erdemovic´ had not been properly advised by his own counsel, who displayed ignorance about the law when making oral representations.70 The case was returned to the Trial Chamber, and Erdemovic´ pleaded guilty once again. This time, the Trial Chamber applied Rule 62bis, which had been adopted by the judges in the interim. It essentially codified principles set out in the ruling of the Appeals Chamber. The parties presented the Trial Chamber with a written ‘plea agreement’, whose elements included a guilty plea to war crimes, a common proposal on the appropriate sentence (seven years), and withdrawal by the Prosecutor of the count of crimes against humanity. The Trial Chamber sentenced Erdemovic´ to five years’ imprisonment. It was an important message to other accused that they might benefit from clemency if they would

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Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 13. Erdemovic´ (IT-96-22-A), Judgment, 7 October 1997.

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cooperate and plead guilty, as well as a reminder that judges were not bound by the joint submission on the length of the sentence.71 Shortly thereafter, the former prime minister of Rwanda, Jean Kambanda, also oVered to plead guilty. Following protracted negotiations during which arrangements were made for the transfer of his family to a safe haven, probably the United States, Kambanda signed a ‘plea agreement’ with the Prosecutor that amounted to little more than a detailed admission of guilt. The document stated explicitly that ‘no agreements, understandings or promises have been made between the parties with respect to sentence which, it is acknowledged, is at the discretion of the Trial Chamber’. The Prosecutor confirmed that Kambanda’s cooperation was ‘recognised by significant protection measures that have been put in place to alleviate any concerns that he may have, about the security of his family’, although no details were specified.72 The ICTR Trial Chamber was not particularly impressed with Kambanda’s guilty plea, because he failed to express any remorse or contrition. He was sentenced to life imprisonment for genocide, the maximum sentence available for what was arguably the most serious crime within the jurisdiction of the Tribunal. Although his family may have derived some benefit from the guilty plea, Kambanda subsequently seemed unimpressed with the alleged advantages of pleading guilty. To defendants awaiting trial, this sent a very contrary message to that of the proceedings in Erdemovic´. Kambanda later charged that he had been manipulated, and unsuccessfully attempted to overturn the guilty plea. He told the ICTR Appeals Chamber that he had been detained and questioned in an unoYcial place of detention (i.e., isolated from other inmates), in an ‘oppressive atmosphere that compelled him to sign the Plea Agreement’. He had been ‘forced by circumstances to sign the plea agreement, in other words there was not a situation of ‘‘free will’’ ’.73 It would seem that he was indeed strongly influenced by skilful and experience investigators, who cajoled him into signing the agreement. But the Appeals Chamber noted that he did not argue mental incompetence, which would have been grounds to overturn the plea agreement. Moreover, as a former Prime Minister he should have been used to stressful situations during which important decisions would have to be made. According to the Appeals Chamber, ‘[i]f the Appellant pleaded guilty instead of going to trial in the hope of receiving a lighter sentence, he cannot claim that the plea was involuntary merely because he received a life-term after pleading guilty to several counts of genocide and crimes against humanity’.74

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Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998. Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, paras. 48–49. Kambanda (ICTR 97-23-A), Judgment, 19 October 2000, paras. 57–58. Ibid., paras. 62–63.

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The judges subsequently enacted an amendment to the ICTR Rules setting out the procedure to be followed in the case of a guilty plea. The guilty plea must be voluntary, it must be unequivocal and it must be informed. Furthermore, there must be ‘a suYcient factual basis for the crime and the accused’s participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case’.75 Representations made by the Prosecutor do not, of course, bind the judges. Rule 62 ter, adopted in December 2001, attempts to codify what was clearly part of the existing practice between defence and Prosecutor, but reveals the ongoing suspicion that many judges had about the process. It says that the Prosecutor and the defence may agree that in exchange for a plea of guilty, the Prosecutor may apply to amend the indictment, and either make submissions with respect to sentencing that have been agreed upon or undertake not to oppose the defence’s submission. The Rule specifies that the Trial Chamber is not bound by any such agreement, an unnecessary caveat. Finally, the Trial Chamber shall require the disclosure of the plea agreement, in principle in open session. Plea bargains or agreements have become an important aspect of the prosecutorial practice at the ICTY. According to Henham and Drumbl, cases settled by plea agreements count for more than one-third of all convictions at the ICTY.76 The Prosecutor has had less success in this regard at the ICTR, and none at the SCSL, although surely not for want of trying. Kambanda’s treatment probably discouraged resort to plea bargaining by other defendants, and at the ICTR only a few defendants have availed themselves of the practice, Omar Serushago, Georges Ruggiu and Vincent Rutaganira. In Serushago, one of the six counts was withdrawn, and on pleading guilty he was sentenced to fifteen years in prison.77 Serushago unsuccessfully appealed the sentence.78 Georges Ruggiu pleaded guilty to only two of six counts, and received a sentence of twelve years,79 which he did not appeal. Rutaganira pleaded guilty in January 2005, and was sentenced to six years.80 According to the ICTY Appeals Chamber, ‘[a] plea agreement is a matter of considerable importance as it involves an admission by the accused of his guilt’. The recommendation of a range of sentences ‘reflects an agreement between the parties as to what, in their view, would constitute a fair sentence’. The Appeals Chamber has pointed out that although Trial Chambers are not

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77 78 79 80

ICTR RPE, Rule 62bis. Ralph Henham and Mark Drumbl, ‘Plea Bargaining at the International Criminal Tribunal for the Former Yugoslavia’, (2005) 16 Criminal Law Forum 49. Serushago (ICTR-98-39), Sentence, 5 February 1999. Serushago (ICTR-98-39-A), Reasons for Judgment, 6 April 2000. Ruggiu (ICTR-97-32-T), Judgment, 1 June 2000. Rutaganira (ICTR-95-1C-0022), Jugement portant condamnation, 14 March 2005.

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bound by any agreement between the parties, ‘in the specific context of a sentencing judgement following a plea agreement, the Appeals Chamber emphasizes that Trial Chambers shall give due consideration to the recommendation of the parties’.81 As a general rule, plea agreements are part of the public record, and have been posted on the websites of the tribunals. In one case, the accused agreed to ‘co-operate with and to provide truthful and complete information to the OYce of the Prosecutor whenever requested’, including meeting with the prosecution whenever necessary, testifying truthfully in the trial of his former co-accused under the same indictment, and ‘in any other trial, hearings, or other proceedings before the Tribunal as requested by the Prosecution’. He also agreed not to appeal the sentence imposed by the Trial Chamber unless the sentence was above the range recommended by the parties.82 Nearly twenty defendants at the ICTY have pleaded guilty after negotiations with the Prosecutor. Indeed, encouraging plea bargaining has seemed to be part of the Prosecutor’s completion strategy. The judges have not been as cooperative as they might have been, however. This discomfort with plea agreements expressed by some of the ICTY judges has manifested itself in frequent departures from the joint recommendations. In one case, the Prosecutor proposed a sentence of fifteen years, as part of a plea agreement, but the Trial Chamber increased this to twenty-three years,83 although this was reduced to twenty years on appeal.84 Similarly, a sentence of thirteen years was imposed on Milan Babic´ although the Prosecutor had only asked for eleven years.85 Encouraging defendants to plead guilty might have helped the Prosecutor to complete many pending cases. However, the caution of judges in cooperating with such agreements can only discourage defendants, who may prefer to try their chances at trial rather than risk an uncertain guilty plea. Some judges at the ICTY have distinguished between a pure guilty plea, which is governed by Rule 62bis of the Rules, and a plea agreement, which is subject to Rule 52 ter. It is questionable whether this is a useful distinction, because in practice few if any accused have pleaded guilty without reaching some sort of agreement. According to one ICTY Trial Chamber, concluding a prosecution with a plea agreement has negative eVects. In the plea agreement,

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Dragan Nikolic´ (IT-02-60/1-A), Judgment on Sentencing Appeal, 4 February 2005, para. 89. Momir Nikolic´ (IT-02-60-PT), Amended Plea Agreement, 7 May 2003, paras. 9, 14. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003. Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005. Babic´ (IT-03-72-S), Judgment, 29 June 2004. See: Daryl A. Mundis and Fergal Gaynor, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, (2004) 4 Journal of International Criminal Justice 1180.

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the admitted facts are set out in the agreement, and this may not reflect the entire factual and legal basis available to the Prosecutor. Victims are left with the impression of a negotiation, rather than a search for justice and truth. ‘This might create an unfortunate gap in the public and historical record of the concrete case,’ wrote a Trial Chamber, ‘although, when coupled with an accused’s substantial co-operation with the prosecution, an agreement grants more insights into previously undiscovered areas.’86

The trial itself Before the presentation of evidence by the Prosecutor, each party may make an opening statement. However, the defence can elect to make its statement after the conclusion of the Prosecutor’s presentation of evidence and before the presentation of evidence for the defence.87 These opening statements provide a summary of the case for each side, and are occasionally referred to in judgments of the tribunals. Under the ICTY RPE, after the opening statements, the accused may, if he or she so wishes, and if the Trial Chamber so decides, make a statement ‘under the control of the Trial Chamber’. The accused’s statement is not made under oath or solemn declaration, and he or she may not be examined about its contents. The Rules state that ‘[t]he Trial Chamber shall decide on the probative value, if any, of the statement’.88 The Rule was adopted in July 1999, in eVect reversing the judicial and prosecutorial policy which had previously been opposed to allowing such statements.89 Each party is entitled to call witnesses and present evidence, subject of course to the pre-trial rulings concerning witness lists and length of testimony. The Rules establish a chronology for the presentation of evidence, although they allow that this may be altered by the Trial Chamber ‘in the interests of justice’. Presentation of evidence conforms to the following sequence: evidence for the prosecution; evidence for the defence; prosecution evidence in rebuttal; defence evidence in rejoinder; evidence ordered by the Trial Chamber on its own initiative.90 Rebuttal evidence is limited to matters that have arisen out of defence evidence.91 Where, however, the

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Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 122; Deronjic´ (IT-02-61-S), Sentencing Judgment, 30 March 2004, para. 135. ICTY RPE, Rule 84; ICTR RPE, Rule 84; SCSL RPE, Rule 84. ICTY RPE, Rule 84bis. Giuliano Turone, ‘The Denial of the Accused’s Right to Make Unsworn Statements in Delalic´ ’, (2004) 2 Journal of International Criminal Justice 455. ICTY RPE, Rule 85; ICTR RPE, Rule 85; SCSL RPE, Rule 85. Delalic´ et al. (IT-96-21-T), Decision on the Prosecution’s Alternative Request to Reopen the Prosecution’s Case, 19 August 1998, para. 23.

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defence adduces evidence of a fresh matter that the prosecution could not have foreseen, such as a previously unannounced alibi defence, rebuttal evidence may be called.92 The judges may call witnesses themselves, pursuant to Rule 98. The procedure seems normal to judges from civil-law traditions; it is much more exceptional in the case of the common law, where the adversarial contest is left to the initiative of the two parties. In Stakic´, an ICTY Trial Chamber called several witnesses proprio motu under this provision, all of them members of the Prijedor Crisis StaV, in an attempt ‘to explore further’ the indicia of genocidal intent at a leadership level.93 The ICTY and ICTR initially had a distinct sentencing phase, which followed a conviction and at which evidence relevant to the appropriate penalty could be produced.94 The same approach avails in the Rome Statute of the International Criminal Court.95 This was later changed to require that evidence germane to sentencing be produced during the trial itself, and prior to the verdict.96 The combined procedure complicates things for the defence, which is required to establish its mitigating circumstances even before guilt has been determined. There have been complaints about the procedure, but they have been unsuccessful.97 The Appeals Chamber has explained that an accused can express sincere regret without admitting his or her participation in a crime.98 The SCSL judges amended the ICTR Rules that they inherited at the start of their work and returned to the old principle, requiring a separate or bifurcated hearing on sentencing.99 The accused is entitled to a right to silence, and cannot be compelled to testify by the Prosecutor. An accused may, of course, decide to appear as a witness in his or her own defence.100 If the accused so elects, the Prosecutor may cross-examine the accused. An amendment to SCSL RPE, Rule 85(C), reflects the practice in many common law jurisdictions, notably the United Kingdom and Australia, requiring that if an accused testifies in his or her case, he or she must do it first, before the defence witnesses.

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Semanza (ICTR-97-20-T), Decision on the Prosecutor’s Motion for Leave to Call Rebuttal Evidence and the Prosecutor’s Supplementary Motion for Leave to Call Rebuttal Evidence, 27 March 2002. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 551. Original ICTY RPE, Rule 100; ICTR RPE, Rule 100. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 76. ICTY RPE, Rule 85(vi); ICTR RPE, Rule 85(vi). Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 1081. Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 177. SCSL RPE, Rule 100(A). ICTY RPE, Rule 85(C); ICTR RPE, Rule 85(C); SCSL RPE, Rule 85(C).

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Motion for dismissal (Rule 98bis) At the conclusion of presentation of evidence by the Prosecutor, the accused generally presents a motion to dismiss, in accordance with Rule 98bis. The original version of ICTY Rule 98bis, adopted in July 1998, said that the Trial Chamber would enter an acquittal on one or more counts in the indictment if ‘the evidence is insuYcient to sustain a conviction’. It could do this proprio motu or on the application of the defence. The applicable test was changed slightly in December 2004, and states that an aquittal lies ‘if there is no evidence capable of supporting a conviction’. ICTR Rule 98bis is comparable to the original provision in the ICTY RPE. A procedure of this type is familiar to judges from both common law and continental systems, although in the latter the application based on insuYcient evidence to sustain a conviction is generally made after the investigating judge has completed the dossier prior to the trial itself. Since its adoption, the Rule 98bis motion has become a time-consuming part of the trial, and has often generated not only lengthy briefs from the parties but judgments of substantial length. In December 2004, in an eVort to streamline trials, the ICTY judges amended Rule 98bis so that henceforth the procedure is entirely oral. There has been much debate, and some lingering diVerences among judges, ˇ erkez, an ICTY as to the applicable test at the Rule 98bis stage. In Kordic´ and C Trial Chamber said the test to be applied was not whether there was evidence that satisfied the Trial Chamber beyond a reasonable doubt of the guilt of the accused, but rather whether there was evidence on which a reasonable Trial Chamber could base a conviction. In the view of the judges, a distinction must be made between a determination as to whether there is a case to answer and matters aVecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subjectmatter of that case. The party who has called the witness can then re-examine in order to clarify issues that were raised in the cross-examination. According to an ICTY Trial Chamber, [a]lthough the Prosecution has referred to the proceedings under this Rule as ‘no case to answer’, using the description to be found in many common law jurisdictions, the Chamber considers that the better approach is not to characterise Rule 98bis proceedings in that way, lest it be thought that the Rule must necessarily be applied in the same way as proceedings for ‘no case to answer’ in those jurisdictions. It is true that Rule 98bis proceedings, coming as they do at the end of the Prosecution’s case, bear a close resemblance to applications for no case to answer in common law jurisdictions. However, that does not necessarily mean that the regime to be applied for Rule 98bis proceedings is the same as that which is applicable in the domestic jurisdictions of those countries. Ultimately, the regime to

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be applied for Rule 98bis proceedings is to be determined on the basis of the Statute and the Rules, having in mind, in particular, its construction in the light of the context in which the Statute operates and the purpose it is intended to serve. That determination may be influenced by features of the regime in domestic jurisdictions with similar proceedings, but will not be controlled by it; and therefore a proper construction of the Rule may show a modification of some of those features in the transition from its domestic berth.101

Thus, ‘[t]he evidence shall be assumed to be reliable and credible unless convincing arguments have been raised that it is obviously unbelievable, such that no reasonable trier of fact could rely upon it’.102 Normally, this does not involve a determination of the credibility of a witness’s testimony. However, there is a distinction which has to be drawn between the credibility of a witness and the reliability of that witness’s evidence. Credibility depends upon whether the witness should be believed. Reliability assumes that the witness is speaking the truth, but depends upon whether the evidence, if accepted, proves the fact to which it is directed . . . A situation where the reliability of the evidence given by such a witness becomes of substantial importance is well illustrated in relation to the issue of identification, [because] special caution has been found to be necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification.103

The test is ‘whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict – that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis, ‘insuYcient to sustain a conviction’.104

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Kordic´ et al. (IT-95-14/2-PT), Decision on Defence Motions for Judgment of Acquittal, 6 April 2000, para. 9. These views were endorsed by the ICTY Appeals Chamber: Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 33; Galic´ (IT-98-29-T), Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic´, 3 October 2002. Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal, 2 February 2005, para. 11. Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Decision on Motion for Acquittal, 3 July 2000. Also: Kvocˇka et al. (IT-98-30/1-T), Decision on Defence Motions for Acquittal, 15 December 2000; Imanishimwe (ICTR-99-46-T), Oral Decision, 6 March 2002; Kamuhanda (ICTR-99-54A-T), Decision on Kamuhanda’s Motion for Partial Acquittal Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 20 August 2002. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Decision on Motion for Acquittal, 3 July 2000, para. 3 (emphasis in the original). These views were endorsed by the ICTY Appeals Chamber: Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 36. Also: Kamuhanda

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Although the decision at this stage is essentially about the suYciency of the evidence, it is incorrect to say that issues of applicable law are not relevant. As an ICTY Trial Chamber said, ‘[i]f there is a dispute between the parties as to whether the relevant charge includes a particular element, and if there is no evidence to prove that particular element in dispute, the existence or otherwise of that particular element becomes vital to the determination to be made under Rule 98bis ’.105 A total absence of proof of an essential element of an oVence is justification for a motion of acquittal.106

Judgment and sentence Judgment is pronounced in public, in the presence of the parties. The judges must issue a reasoned opinion in writing, either at the time the judgment is issued or shortly afterward.107 Judgments are issued in the two oYcial languages of the tribunal,108 although it is generally indicated that one version is authoritative. Judgments are also issued in ‘a language which the accused understands’.109 Although no specific form is set out in the statutes or the RPE, judgments generally follow a pattern in which there is a summary of the procedural background to the case, a presentation of the indictment itself, then a detailed review of the factual issues followed by a discussion of the legal issues. The consideration of factual issues often includes several paragraphs on the historical background to the conflict. When the issues are discussed, the case for the Prosecutor is usually set out, followed by that of the defence, followed by a section on the findings of the Tribunal. The judgment concludes with a verdict on each count in the indictment and, where this results in a conviction, the appropriate sentence. An accused is entitled to a reasoned judgment not only because this is a requirement of the Statute and the RPE, but also as a fundamental right flowing from the right to a fair trial.110 This does not mean that the Trial

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(ICTR-99-54A-T), Decision on Kamuhanda’s Motion for Partial Acquittal Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 20 August 2002. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Decision on Motion for Acquittal, 3 July 2000. Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 9. ICTY Statute, art. 23(2); ICTR Statute, art. 22(2); SCSL Statute, art. 18; ICTY RPE, Rule 98 ter (C); ICTR RPE, Rule 88(C); SCSL RPE, Rule 88(C). Tadic´ (IT-94-1-AR72), Separate Declaration of Judge J. Descheˆnes on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. ICTY RPE, Rule 98ter(D). Georgiadis v. Greece, 29 May 1997, European Court of Human Rights, Report 1997-III.

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Chamber is required to justify its findings on every single submission of the defence. Trial Chambers have some discretion in deciding which legal arguments to address. As for factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record. It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective.111

If an accused person is acquitted, he or she is to be immediately released, unless the Prosecutor informs the Trial Chamber in open court of the Prosecutor’s intention to file a notice of appeal. The Trial Chamber may then order the continued detention of the accused, pending the determination of the appeal.112 Accused persons at the ICTY and ICTR are unlikely to be nationals of the Netherlands and Tanzania, respectively, and for this reason have no legal right to remain within the country. According to the Headquarters Agreements, an accused person who is transferred to the host State of the Tribunal enjoys immunity from the national criminal jurisdiction. If the accused person is subsequently acquitted or otherwise released, the immunity continues for a period of fifteen days to provide that person with the opportunity of leaving the territory of the host State.113 It is not always a simple matter, however, for the person concerned to leave the host State. In its 2001 Annual Report, the ICTY noted that Ignace Bagilishema, who had been acquitted, was having trouble leaving Tanzania and obtaining entry into another country. ‘The Tribunal has grave concern for the plight of accused persons who are subsequently acquitted and urges the international community to open their borders to them’, the Annual Report states.114

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Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 23 (reference omitted). ICTY RPE, Rule 99. ‘Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia’, UN Doc. S/1994/848, annex, art. XX; ‘Agreement between the United Nations and the United Republic of Tanzania concerning the Headquarters of the International Tribunal for Rwanda’, UN Doc. A/51/399-S/1996/ 778, annex, art. XX(2). Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 16.

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Cumulative convictions The crimes within the jurisdictions of the tribunals are derived from diVerent sources, both customary and conventional, and when they were first defined they were never intended to be part of a coherent and comprehensive codification of serious violations of international humanitarian law. As a result, there is considerable overlap, and a distinct criminal act may well fit within the definition of genocide, crimes against humanity and war crimes. The Prosecutor has opted for a relatively exhaustive approach to indictment, so that when several crimes may be associated with a single act, many or all of them are charged against the accused. It is at the judgment stage that the tribunals must decide whether or not to enter cumulative convictions. The central concern is that cumulative convictions create ‘a very real risk of . . . prejudice’ to the accused. Such persons suVer the stigma inherent in being convicted of an additional crime for the same conduct. In a more tangible sense, there may also be consequences such as losing eligibility for early release under the law of the State enforcing the sentence.115 The ICTR Appeals Chamber, in Musema, confirmed that ‘reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under diVerent statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other’.116 An element is considered to be ‘materially distinct’ if it requires proof of a fact not required by the other oVence. In articulating the approach, the tribunals have relied heavily on the Blockburger decision of the Supreme Court of the United States.117 The ICTY Appeals Chamber has conceded that the test is ‘deceptively simple’, and that ‘[i]n practice, it is diYcult to apply in a way that is

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Delalic´ et al. (IT-96-21-A), Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, 20 February 2001, para. 23. These views were endorsed by a unanimous Appeals Chamber in Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 169. Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369–370. Also: Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 412; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 1032; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 168; Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 82; Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, paras. 387–388. Blockburger v. United States, 284 US 299, 304 (1931) (‘The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two oVenses or only one is whether each provision requires proof of an additional fact which the other does not.’).

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conceptually coherent and promotes the interests of justice’.118 Trial Chambers have treated the test with caution, and tended to view it as overly broad. In Stakic´, an ICTY Trial Chamber said: ‘While this Chamber feels bound by the decisions of the Appeals Chamber, it favours the further limitation of cumulative convictions. The guiding principle in these circumstances would be for the Chamber, in the exercise of its discretion, to convict only in relation to the crime that most closely and most comprehensively reflects the totality of the accused’s criminal conduct.’119 In Strugar, a case involving war crimes only, the accused was subject to conviction for murder, cruel treatment and attacks on civilians for the same criminal act. Murder and cruel treatment were, ‘on a theoretical basis’, considered to be materially distinct, the oVence of murder requiring proof of death, and the oVence of cruel treatment requiring proof of mental or physical suVering or injury, or constituting a serious attack on human dignity. However, because murder and cruel treatment did not contain an element in addition to the elements of attacks on civilians, and because the oVence of attacks on civilians contained an additional element, namely an attack, the Trial Chamber concluded that it was the more specific provision. It entered a conviction on the count of attacks on civilians, and dismissed the other two charges.120 Similarly, the Trial Chamber found that three other war crimes, devastation not justified by military necessity, unlawful attacks on civilian objects, and destruction or wilful damage of cultural property, also contained materially distinct elements. But because the oVence of destruction of cultural property ‘directly and comprehensively reflected’ the criminal act, ‘in the particular circumstances’ of the criminal act, the Trial Chamber dismissed the other two charges.121 In principle, cumulative convictions have been allowed for crimes against humanity and war crimes, for crimes against humanity and genocide, and for genocide and war crimes. The Appeals Chambers have consistently held that crimes against humanity are distinct from war crimes because the two categories contain distinct elements.122 War crimes, of course, require both the existence of an armed conflict and a nexus between the acts of the individual and the armed conflict. Neither crimes against humanity nor genocide require

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Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 172. Also: Semanza (ICTR97-20-T), Separate and Dissenting Opinion of Judge Pavel Dolenc, 15 May 2003, para. 13. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 870. Strugar (IT-01-42), Judgment, 31 January 2005, para. 449. Ibid., para. 454. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 388; Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 82; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 176; Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 145.

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a nexus with armed conflict, but both have other distinct elements that set them apart from war crimes. In practice, however, the distinction seems overly mechanistic. There are overarching similarities between war crimes and crimes against humanity, and even the terminology is often largely similar. It seems excessive to allow cumulative convictions for the grave breach of ‘inhuman treatment’ and the crime against humanity of ‘other inhumane acts’. Similarly, is it right to allow cumulative convictions for the grave breach of ‘unlawful confinement’ and the crime against humanity of ‘imprisonment’? With respect to cumulative convictions for genocide and crimes against humanity, there is much authority for the proposition that genocide is an aggravated form of crimes against humanity.123 But it has been held that convictions for both genocide and for crimes against humanity are permitted because they have materially distinct elements.124 In Musema, the ICTR Appeals Chamber held that convictions for genocide under article 2 and for extermination as a crime against humanity under article 3, based on the same set of facts, are permissible.125 According to the Appeals Chamber, genocide requires proof of intent to destroy, in whole or in part, a national, ethnic, racial or religious group, whereas the crime against humanity of extermination requires proof that the crime was committed as part of a widespread or systematic attack on a civilian population.126 The ICTY Appeals Chamber upheld and developed this conclusion in Krstic´, overturning the Trial Chamber that had refused to enter cumulative convictions for genocide and crimes against humanity because it considered that ‘both require that the killings be part of an extensive plan to kill a substantial part of a civilian population’.127 The Appeals Chamber said that such an ‘extensive plan’ had been held not to constitute an element of either genocide or crimes against humanity. Moreover, according to the Appeals Chamber, genocide need not be committed as part of a widespread or systematic attack, nor must genocide be limited to a ‘civilian population’.128 There is inevitable overlap in the various categories of war crimes. To the extent that meaningful distinctions may be made between the broad categories of genocide, crimes against humanity and war crimes, this is not nearly as 123

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For the various authorities, see: William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge University Press, 2000, at p. 11. Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369–370; Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 864; Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1090. Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369–370. Ibid., para. 366. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, paras. 219–227; Kayishema et al. (ICTR95-1-T), Judgment and Sentence, 21 May 1999, paras. 577–578, 590. Krstic´ (IT-98-33-A), Judgment, 19 April 2004, paras. 219–227.

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evident within the diVerent categories of war crimes, even if they are defined in separate provisions that reflect diVerent sources. It is noteworthy that under the Rome Statute of the International Criminal Court, grave breaches of the Geneva Conventions, violations of the laws or customs of war, and serious violations of common article 3 and Protocol II are all grouped within a single article.129 Under the ICTY Statute an accused may be prosecuted for both the grave breach of wilful killing, under article 2(a), and the war crime of murder, under article 3. The Appeals Chamber has said a conviction for both is impermissible, under the cumulative convictions rule, declaring that in such a case the accused should be found guilty of the grave breach because it is the more specific provision. In eVect, while both are ‘war crimes’, a grave breach requires that the victim be a protected person, something that is not an element of murder as a violation of the laws or customs of war.130 The situation is perhaps more complex with respect to so-called ‘intraarticle cumulative oVences’. Three of the punishable acts of genocide, namely, killing, causing bodily or mental harm, and imposing conditions of life calculated to destroy the group, are closely related. Cumulative convictions have been entered with respect to conspiracy to commit genocide, genocide, and direct and public incitement to commit genocide.131 The punishable acts of crimes against humanity encompass quite distinct crimes, such as murder, deportation and imprisonment, as well as the apparently more generic oVences of persecution and other inhumane acts. On several occasions, the ICTY Appeals Chamber has held that where an accused is convicted of the crime against humanity of murder, he or she cannot also be found guilty of persecution.132 It has also ruled that cumulative convictions for persecution and other inhumane acts are impermissible, ‘since the crime of persecution in the form of inhumane acts subsumes the crime against ˇ erkez, the Appeals Chamber humanity of inhumane acts’.133 In Kordic´ and C revisited the question and reversed its previous jurisprudence, although by a bare majority.134 According to the Appeals Chamber, persecution requires proof of a specific intent to discriminate and that the act or omission did in fact discriminate, whereas the crime against humanity of murder requires an 129 130

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Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 422–423; Jelisic´ (IT-9510-A), Judgment, 5 July 2001, para. 82. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1090. Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 146; Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 231. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 188; Vasiljevic´ (IT-9832-A), Judgment, 25 February 2004, para. 146; Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 231. See Kordic´ et al. (IT-95-14/2-A), Joint Dissenting Opinion of Judge Schomburg and Judge Gu¨ney on Cumulative Convictions, 17 December 2004.

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act or omission causing death without regard to the issue of discrimination.135 Using essentially similar reasoning, it also distinguished between persecutions and other inhumane acts, and between persecutions and imprisonment.136 Whether the same conduct violates two distinct statutory provisions is a question of law.137 When a Trial Chamber concludes that two counts in an indictment refer to the same criminal act and are not materially distinct, it must decide the count for which it will enter a conviction. In such cases, the tribunals convict under the more specific provision, which will be the one which has the additional materially distinct element.138 The ICTY Appeals Chamber has noted that it is ‘an established principle of both the civil and common law that punishment should not be imposed for both a greater oVence and a lesser included oVence. Instead, the more serious crime subsumes the less serious (lex consumens derogat legi consumptae)’.139 The rationale is that the more serious oVence cannot be committed without also committing the ‘lesser included oVence’.

Post-trial procedure International human rights law recognises the right to an appeal as a fundamental component of due process in criminal proceedings.140 For this reason, at the time the ICTY was being established the Secretary-General took the view that a right of appeal should be provided for under the Statute.141 According to the ICTY Appeals Chamber, the right of appeal is dictated not only by the Statute but also by customary international law. It said that an aspect of the fair trial requirement is the right of an accused to have like cases treated alike, so that in general, the same cases will be treated in the same way and decided, as Judge Tanaka of the International Court of Justice said in Barcelona Traction, ‘possibly by the same reasoning’.142 As the Appeals Chamber noted: The right to a fair trial requires and ensures the correction of errors made at trial. At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement

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Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 1041. Ibid., paras. 1042–1043. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 174. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 413. See also Krstic´ (IT98-33-A), Judgment, 19 April 2004, para. 218. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 170. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 14(5). ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 116. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 104–109.

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in any appeal in which a previous decision of an appellate body is being considered. The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law’. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.143

As a general principle, the Rules of Procedure and Evidence that govern matters before the Trial Chambers apply mutatis mutandis to post-trial proceedings in the Appeals Chamber.144

Appeal The establishment of appeals chambers, a costly addition and one that had no equivalent at Nuremberg or Tokyo in the post-Second World War proceedings, underscores the importance of appeals in the overall scheme of the tribunals.145 Indeed, the Nuremberg Charter specified that the trial judgment ‘shall be final and not subject to review’, although it allowed political authorities to reduce or alter a sentence, but not to increase it.146 In his report to the Security Council, the Secretary-General said that the right of appeal should be exercisable on two grounds, an error on a question of law invalidating

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Ibid., paras. 107–110. ICTY RPE, Rule 107; ICTR RPE, Rule 107; SCSL RPE, Rule 106. In discussions on establishing a tribunal for Cambodia, the United Nations Secretariat toyed with the idea of eliminating the appeals chamber. It questioned whether this was essential, noting that in many jurisdictions there was no appeal when an individual – generally a senior political or government oYcial – was tried by the highest court in the land. The suggestion was not pursued. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 26; International Military Tribunal for the Far East, TIAS No. 1589, Annex, Charter of the International Military Tribunal for the Far East, art 17.

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the decision, or an error of fact that has occasioned a miscarriage of justice.147 This relatively broad scope of appeal is consistent with the interpretation of the right of appeal given by international human rights tribunals.148 The Secretary-General’s insistence that the Prosecutor should also be entitled to initiate appeal proceedings on the same grounds is obviously not required by international human rights norms. The ICTY and ICTR statutes, in provisions that are essentially identical, declare that the Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: an error on a question of law invalidating the decision; or an error of fact which has occasioned a miscarriage of justice.149 The SCSL Statute is slightly diVerent, adding a third ground, ‘procedural error’, to the list of grounds for appeal.150 This broader basis for appeal appears to be inspired by the Rome Statute.151 The principles apply both to verdicts on guilt and innocence, and to appeals of sentence alone.152 The Appeals Chamber may aYrm, reverse or revise the decisions taken by the Trial Chambers.153 It is possible to reverse an acquittal and register a conviction on appeal; there are examples of this with respect to specific counts in an indictment.154 The ICTY Appeals Chamber has also made new findings 147

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‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 117. On appeals generally, see: Mark C. Fleming, ‘Appellate Review in the International Criminal Tribunals’, (2002) 37 Texas International Law Journal 111; Mark A. Drumbl and Kenneth S. Gallant, ‘Appeals in the Ad Hoc International Criminal Tribunals: Structure, Procedure and Recent Cases’, (2001) 3 Journal of Appellate Practice and Process 589. See, e.g., Perera v. Australia (No. 536/1993), UN Doc. CCPR/C/53/D/536/1993, 28 March 1995; Domukovsky et al. v. Georgia (Nos. 623, 624, 626, 627/1995), UN Doc. CCPR/C/62/D/627/1995, 29 May 1998. ICTY Statute, art. 25(1); ICTR Statute, art. 24(1). SCSL Statute, art. 20(1). Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 81. Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 8. ICTY Statute, art. 25(2); ICTR Statute, art. 24(2); SCSL Statute, art. 20(2). Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 171; Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003. Although the issue was not raised by the parties, Judge Shahabuddeen penned a lengthy separate opinion justifying the possibility of prosecutorial appeal of an acquittal to the Appeals Chamber: Rutaganda (ICTR-96-3-A), Separate Opinion of Judge Shahabuddeen, 26 May 2003. In Jelisic´, a genocide count was dismissed at the conclusion of the Prosecutor’s evidence, on a motion pursuant to Rule 98bis, and before any defence evidence had been heard. The accused was convicted of crimes against humanity and sentenced to forty years’ imprisonment. The Appeals Chamber concluded the acquittal on genocide was an error, but said it was within its discretion not to order a new trial, and for that reason declined to reverse the acquittal: Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 77. Judge Wald dissented, and argued that the Appeals Chamber had no alternative but to remit the case for retrial, although she strongly urged the Prosecutor not to proceed on the genocide count, given the

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against an accused without actually entering a conviction, although the matter was relevant on sentencing.155 No accused who has been declared not guilty on all charges has seen this reversed by the Appeals Chamber, although by hearing the appeal the Tribunal was obviously prepared to entertain the possibility.156 The authority to reverse an acquittal is also confirmed in common Rule 99(B), which authorises a Trial Chamber to order the continued detention of an accused who has been acquitted where the Prosecutor declares its intent to appeal.157 The Appeals Chamber has also assumed ‘jurisdiction to determine issues which, though they have no bearing on the verdict reached by a Trial Chamber, are of general significance to the Tribunal’s jurisprudence’. Accordingly, consideration of an issue of general significance is appropriate since its resolution is important to the development of the Tribunal’s jurisprudence and since at issue here is an important point of law which merits review. Thus, the need to pass on issues of general importance is justified in light of the Appeals Chamber’s role in unifying the applicable law. Indeed, the Appeals Chamber must provide guidance to the Trial Chambers in interpreting the law. Such a role of ‘the final arbiter of the law of the Tribunal’, must be defined according to the special nature of the Tribunal and, in particular, as an ad hoc and temporary body.158

A more limited appeal also exists for a variety of judicial rulings other than the actual judgment. The statutes are silent on this point, and the determination of the nature and scope of interlocutory appeals has been defined by the judges in both case law and the Rules of Procedure and Evidence. When the judges of the Special Court for Sierra Leone adopted their own Rules of Procedure and Evidence, they took the ICTR RPE as a model, but required that preliminary motions on jurisdiction be made directly to the Appeals Chamber, thereby eliminating any possibility of appeal. When this was challenged, the Appeals Chamber ruled that there was no fundamental right to an appeal from an interlocutory decision.159 Under the ICTY and ICTR RPE,

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already lengthy sentence for crimes against humanity: Jelisic´ (IT-95-10-T), Partial Dissenting Opinion of Judge Wald, 5 July 2001. See: Gregory P. Lombardi, ‘Legitimacy and the Expanding Power of the ICTY’, (2003) 37 New England Law Review 887. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 155–172, 189, 192(6). Bagilishema (ICTR-95-1A-A), Judgment, 3 July 2002. In paragraph 8, the ICTR Appeals Chamber said that ‘[c]e type d’appel est pre´vu par le Statut du Tribunal dans son article 24, qui dispose que les deux parties peuvent interjeter appeal, et ce, sur des questions de droit et de fait’. ICTY RPE, Rule 99(B); ICTR RPE, Rule 99(B); SCSL RPE, Rule 99(B). Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 21; Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 35. Norman (SCSL-03-08-PT), Decision on the Applications for a Stay of Proceedings and Denial of Right to Appeal, 4 November 2003.

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interlocutory appeal is allowed in the case of motions challenging jurisdiction, and in all other cases where the Trial Chamber has certified that ‘the decision involves an issue that would significantly aVect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings’.160 At the ICTY, a panel of three judges in the Appeals Chamber may overturn this finding.161 There is also an appeal of right to a decision on replacement of a judge who is unable to continue sitting,162 and in a finding of contempt of court163 or perjury.164 If the prosecution for contempt of court takes place before the Appeals Chamber, the appeal is made to the President of the Tribunal, who assigns five other judges to hear the case.165 There is an appeal with leave from a three-judge panel of the Appeals Chamber from decisions concerning orders directed to States for the production of documents if the ruling would cause such prejudice to the party as could not be cured by the final disposal of the trial, including post-judgment appeal, or ‘if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally’.166 Similarly, a ruling on provisional release is subject to appeal with leave from three judges of the Appeals Chamber, ‘upon good cause being shown’.167 At the SCSL, the Prosecutor may appeal as of right a judgment granting provisional release.168 The expression ‘upon good cause being shown’ has been interpreted as imposing upon the party seeking to appeal a burden to demonstrate ‘that the Trial Chamber may have erred in rendering the impugned Decision’.169 An earlier version of the RPE used the term ‘serious cause’, and this had been interpreted to mean ‘a grave error which would cause substantial prejudice to the accused or is detrimental to the interests of justice, or raise[s] issues which are not only of general importance but are also directly material to the future

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E.g., Brdanin et al. (IT-99-36-T), Decision to Grant Certification to Appeal the Trial Chamber’s Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, 19 June 2002. ICTY RPE, Rules 72, 73. ICTY RPE, Rule 15bis(D); ICTR RPE, Rule 15bis(D). ICTY RPE, Rule 77(J); ICTR RPE, Rule 77(J); SCSL RPE, Rule 77(J). ICTY RPE, Rule 91(I); ICTR RPE, Rule 91(I); ICTY RPE, Rule 91(B). ICTY RPE, Rule 77(K); ICTY RPE, Rule 77(K); SCSL RPE, Rule 77(L). Given the small number of judges at the SCSL, this would seem to be physically impossible. ICTY RPE, Rule 54bis(C). ICTY RPE, Rule 65(D); ICTR RPE, Rule 65(D); SCSL RPE, Rule 65(E). SCSL RPE, Rule 65(G). Simic´ et al. (IT-95-9-AR65), Decision on Application for Leave to Appeal, 19 April 2000. See also: Dokmanovic´ (IT-95-13A-AR72), Decision on Application for Leave to Appeal by the Accused, 11 November 1997.

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development of trial proceedings, in that the decision by the Appeals Chamber would seriously impact upon further proceedings before the Trial Chamber’.170 An interlocutory appeal will not necessarily stay the proceedings at first instance, and there is precedent for Trial Chambers hearing evidence concerning an indictment whose legality was being challenged in the Appeals Chamber.171

Procedure on appeal A party seeking to appeal a judgment must file a Notice of Appeal within a prescribed delay from when judgment is pronounced. The notice sets forth the grounds for the appeal, indicating the substance of the alleged errors and the relief sought.172 The notice may be amended with leave of the Appeals Chamber, ‘on good cause being shown by motion’.173 The only formal requirement as to the content of the Notice of Appeal is an enumeration of the grounds of appeal, and a motion alleging that a Notice of Appeal is vague or lacks precision will not succeed. In dismissing such a motion, the ICTR Appeals Chamber observed that the meaning in French of the last clause of Rule 108(A) (l’acte d’appel, e´crit et motive´) is diVerent from the meaning in English (‘a written notice of appeal, setting forth the grounds’), and that the French version is to be favoured.174 Once a valid notice of appeal has been filed, or when leave to appeal has been granted, the Trial Chamber cannot exercise its jurisdiction with respect to the decision or issues pending before the Appeals Chamber. It must wait for the appeal to be adjudicated.175 The appeal procedure is managed by a ‘Pre-Appeal Judge’, or ‘Pre-Hearing Judge’.176 A record on appeal is prepared based on the trial materials.177 Exceptionally, it is possible to introduce new evidence on appeal.178 The

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Blasˇkic´ (IT-95-14-PT), Decision, 14 October 1996. Norman et al. (SCSL-04-14-T), Decision on Presentation of Witness Testimony on Moyamba Crime Base, 1 March 2005. ICTY RPE, Rule 108; ICTR RPE, Rule 108; SCSL RPE, Rule 108. See also: ‘Practice Direction on Formal Requirements for Appeals from Judgment’, UN Doc. IT/201, 7 March 2002. ICTY RPE, Rule 108; ICTR RPE, Rule 108; SCSL RPE, Rule 108. Bagilishema (ICTR-95-1A-A), Decision on the Defence’s Motion to have the Prosecutor’s Notice of Appeal Declared Inadmissible, 26 October 2002. Delalic´ et al. (IT-96-21-T), Decision on the Alternative Request for Renewed Consideration of Delalic´’s Motion for an Adjournment until 22 June or Request for Issue of Subpoenas to Individuals and Requests for Assistance to the Government of Bosnia and Herzegovina, 22 June 1998, para. 35. ICTR RPE, Rule 108bis; SCSL RPE, Rule 109. ICTY RPE, Rule 109; ICTR RPE, Rule 109; SCSL RPE, Rule 110. ICTY RPE, Rule 115; ICTR RPE, Rule 11; SCSL RPE, Rule 1155. Additional evidence on appeal is discussed in chapter 12 below at pp. 483–484.

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Appellant first prepares a brief, to which the Respondent replies. The Appellant may then submit a Brief in Reply, which is to be limited to arguments in reply to the Respondent’s Brief. When all of the Briefs have been filed, a date is set for oral hearing.179

Standard of review The Appeals Chambers have frequently reminded the parties that ‘an appeal is not an opportunity for the parties to reargue their cases; it does not involve a trial de novo. On appeal, parties must limit their arguments to matters that fall within the scope of Article 25 of the Statute.’180 In Kupresˇkic´, the ICTY Appeals Chamber stated: The general rule is that the Appeals Chamber will not entertain arguments that do not allege legal errors invalidating the judgment, or factual errors occasioning a miscarriage of justice, apart from the exceptional situation where a party has raised a legal issue that is of general significance to the Tribunal’s jurisprudence. Only in such a rare case may the Appeals Chamber consider it appropriate to make an exception to the general rule.181

Furthermore, where an argument has not been invoked at trial, the Appeals Chamber may refuse to entertain it, considering that it has been waived.182 The Appeals Chamber will render a reasoned judgment, but ‘it is within the inherent jurisdiction of the Appeals Chamber to select those submissions which merit a reasoned opinion in writing. Arguments which are evidently unfounded may be dismissed without detailed reasoning.’183 With respect to an appeal that alleges an error of law, the Appeals Chamber is empowered to reverse or revise the decision of a Trial Chamber only if it identifies an error of law ‘invalidating the decision’. Consequently, not every error of law justifies a reversal or revision of a decision of a Trial Chamber.184 According to the ICTY Appeals Chamber,

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ICTY RPE, Rules 111–114; ICTR RPE, Rules 111–114; SCSL RPE, Rules 111–114. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 13. Also: Kordic´ et al. (IT-95-14/2A), Judgment, 17 December 2004, paras. 21–22. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 22 (footnotes omitted). Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 61; Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 18. Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 11; Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 19; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 47–48; Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 12; Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 15. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 10.

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[a] party alleging that there is an error of law must advance arguments in support of the contention and explain how the error invalidates the decision; but, if the arguments do not support the contention, that party does not automatically lose its point since the Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.185

If the Appeals Chamber concludes that the alleged error of law arises from the application of a wrong legal standard by a Trial Chamber, the Appeals Chamber may articulate the correct legal standard and review the relevant findings of the Trial Chamber. In eVect, the Appeals Chamber applies the correct legal standard to the evidence contained in the trial record, in the absence of additional evidence, and then must determine whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by the defence.186 With respect to a ground of appeal based upon errors of fact, the standard applied by the Appeals Chamber has been that of reasonableness, namely, whether the conclusion of guilt beyond reasonable doubt is one that no reasonable trier of fact could have reached.187 However, for the appeal to succeed, the error of fact must have ‘occasioned a miscarriage of justice’.188 This has been defined as ‘[a] grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime’.189 In Vasiljevic´, the ICTY Appeals Chamber concluded that because of factual errors, the Trial Chamber had concluded the accuser was a co-perpetrator in a joint criminal enterprise, rather than an aider and abettor. The Trial Chamber had determined that the accused had the ‘intent to kill’, but the Appeals Chamber found this was an unreasonable conclusion. The result, it said, was a ‘miscarriage of justice’. The conviction of Vasiljevic´ was not overturned, but he was described as an aider and abettor, and his sentence was reduced from twenty to fifteen years.190 The Appeals Chamber acknowledges ‘a margin of deference’ to a finding of fact reached by a Trial Chamber: Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is ‘wholly erroneous’ may the Chamber substitute its own finding for that of the Trial Chamber. It must be borne in mind that two

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Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 6. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 15. Ibid., para. 16. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 29. Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 37. Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, paras. 141, 182.

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judges, both acting reasonably, can come to diVerent conclusions on the basis of the same evidence.191

According to the ICTY Appeals Chamber: The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’ testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.192

The Appeals Chambers have reserved the right to raise questions proprio motu, as well as to examine alleged errors which will not aVect the verdict but which raise an issue of general importance for the case law or functioning of the Tribunal.193 According to the ICTR Appeals Chamber, ‘[i]t is open to the Appeals Chamber, as the final arbiter of the law of the Tribunal, to find in favour of an Appellant on grounds other than those advanced: jura novit curia’.194 In Akayesu, the ICTR Appeals Chamber said that it might deem it necessary to pass on issues of general importance if it finds that their resolution is likely to contribute substantially to the development of the Tribunal’s jurisprudence. The exercise of such a power is not contingent upon the raising of grounds of appeal which strictly fall within the ambit of Article 24 of the Statute. In other words, it is within its discretion. While the Appeals Chamber may find it necessary to address issues, it may also decline to do so. In such a case (if the Appeals Chamber does not pass on an issue raised), the opinion of the Trial Chamber remains the sole formal pronouncement by the Tribunal on the issue at bar. It will therefore carry some weight. Therefore, the Appeals Chamber will not consider all issues of general significance. Indeed, the issues raised must be of interest

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Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 30. Ibid., para. 32. Also: Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 64; Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 11; Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 8; Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 40; Krnojelac (IT-97-25-A), Judgment, 17 September 2003, paras. 11–13, 39; Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 64; Delalic´ et al. (IT96-21-A), Judgment, 20 February 2001, para. 434; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 63; Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 8. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 6; Kajelijeli (ICTR-98-44AA), Judgment, 23 May 2005, para. 208. Kambanda (ICTR 97-23-A), Judgment, 19 October 2000, para. 98. Also: Vasiljevic´ (IT98-32-A), Judgment, 25 February 2004, para. 12; Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 16; Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 208.

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to legal practice of the Tribunal and must have a nexus with the case at hand.195

In the very first appeal of a judgment to come before the ICTY Appeals Chamber, it reversed a conviction after questioning counsel for the accused, and realising he had not understood the distinction between crimes against humanity and war crimes. It granted the appeal on the grounds that the guilty plea entered by the accused was not informed, an issue that had not figured in the notice of appeal. Indeed, the notice of appeal only concerned the sentence, but the Appeals Chamber saw fit to question the validity of the conviction itself. The Appeals Chamber said it found ‘nothing in the Statute or the Rules, nor in practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties’.196 When new evidence is admitted on appeal, the standard of review is somewhat diVerent: In accordance with Rule 118(A) of the Rules and the relevant jurisprudence, the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings? Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.197

One judge has criticised this approach, which she said turns the Appeals Chamber into a Trial Chamber, and ‘which accords no deference to the Trial Chamber and usurps the role of the trier of fact’.198 Trial Chambers possess discretionary power in a broad range of areas. For example, pursuant to Rule 5, in the event of non-compliance with the RPE, a Trial Chamber may ‘in its discretion grant relief, if it finds that the alleged non-compliance is proved and that it has caused material prejudice to the objecting party’. The Appeals Chamber has been very reluctant to intervene in such cases. According to the case law, the Appeals Chamber will only interfere in the exercise of the discretionary power of a Trial Chamber where the latter 195 196 197

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Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 23–24. Erdemovic´ (IT-96-22-A), Judgment, 7 October 1997, para. 16. Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 473 (footnotes omitted). See also Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 185–186. Kvocˇka et al. (IT-98-30/1-A), Separate Opinion of Judge Weinberg de Roca, 28 February 2005, para. 8. Also: Blasˇkic´ (IT-95-14-A), Partial Dissenting Opinion of Judge Weinberg de Roca, 29 July 2004.

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has misdirected itself as to the principle to be applied, or as to the law relevant to the exercise of discretion, or if it has given weight to extraneous or irrelevant considerations, or has made an error as to the facts upon which it has exercised its discretion.199 The Appeals Chamber is willing to review its own decisions, for example, where it has ruled on certain issues in the context of an interlocutory motion: ‘In a Tribunal with only one tier of appellate review, it is important to allow a meaningful opportunity for the Appeals Chamber to correct any mistakes it has made.’ The ICTR Appeals Chamber said it could do this under its ‘inherent discretionary power’ to the extent that ‘a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice’.200

Disposition In Tadic´, when the ICTY Appeals Chamber added a conviction for grave breaches of the Geneva Conventions, it remitted the matter for sentencing to the Trial Chamber. The Appeals Chamber noted that although the parties had recognised the competence of the Appeals Chamber itself to impose sentences, it considered ‘that the Appeals Chamber was also competent to remit sentencing to a Trial Chamber, which latter course they considered ˇ elebic´i, a number of issues preferable in the circumstances of the case’.201 In C related to sentence were remitted to a Trial Chamber. The ICTY Appeals Chamber departed from its previous practice, where it had rendered decisions reversing acquittals (Tadic´) or increasing sentences (Aleksovski) that were not subject to appeal. In the chapter of the judgment related to sentencing, the Appeals Chamber began by noting its decision to quash certain convictions on the basis of cumulative convictions considerations. It then stated: Because the Appeals Chamber has had no submissions from the parties on these issues and, because there may be matters of important principle involved, it will be necessary for such consideration to be given after the parties have had the opportunity to make relevant submissions. As the Appeals Chamber cannot be reconstituted in its present composition, and as, in any event, a new matter of such significance should be determined by a Chamber from which an appeal is possible, the Appeals Chamber proposes to remit these issues for determination by a Trial Chamber.202 199

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Karemera et al. (ICTR-98-44-PT), Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 9 October Denying Leave to File an Amended Indictment, 19 December 2003, para. 9; Bizimungu et al. (ICTR-99-50-AR73.3 and AR73.4), Decision on Mugiraneza Interlocutory Appeal Against Decision of the Trial Chamber on Exclusion of Evidence, 15 July 2004, para. 12. Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 203. Tadic´ (IT-94-1-A), Order Remitting Sentencing to a Trial Chamber, 10 September 1999, p. 3. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 711 (emphasis added).

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Yet in Aleksovski, the ICTY Appeals Chamber increased the sentence when it concluded that the Trial Chamber had erred in its exercise of discretion in imposing sentence.203 For Judge Pocar, this was inconsistent with the fundamental right to an appeal, which is enshrined in article 14(5) of the International Covenant on Civil and Political Rights. Judge Pocar noted that the right to appeal had been preserved in contempt of court cases.204 In Tadic´, the Appeals Chamber, ruling in first instance, convicted former counsel Milan Vujin of contempt.205 Rule 77 of the Rules, as they were formulated at the time, did not expressly provide for the right to appeal a contempt conviction of the Appeals Chamber. But Vujin was granted leave to appeal.206 The Appeals Chamber held that the Rules must be interpreted ‘in conformity with the International Tribunal’s Statute which, as the United Nations SecretaryGeneral state[d] in his report of 3 May 1993 (S/25704), must respect the ‘‘internationally recognized standards regarding the rights of the accused’’ including Article 14 of the [ICCPR]’. The Appeals Chamber held that ‘[a]rticle 14 of the International Covenant reflects an imperative norm of international law to which the Tribunal must adhere’.207 In Jelisic´, the Appeals Chamber overturned an acquittal by the Trial Chamber, which had dismissed a charge of genocide in accordance with Rule 98bis when it concluded there was no evidence capable of supporting a conviction. Nevertheless, the Appeals Chamber said the choice of remedy lay within its discretion, and it declined to remit the case back for trial on the genocide charge. The accused had already entered a guilty plea to crimes against humanity, receiving the extraordinarily heavy sentence of forty years, and in the opinion of the Appeals Chamber there was little to be gained by holding a trial for genocide.208 Judge Wald disagreed that article 25(2) of the Statute, which authorises the Appeals Chamber to ‘aYrm, reverse or revise the decisions taken by the Trial Chambers’, gave it the discretion to bring an end to proceedings in this manner, and to ‘veto a prosecution in the interests of justice, judicial economy or otherwise’.209

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Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000. Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003. See also: ibid., Separate Opinion of Judges Meron and Jorda. Tadic´ (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000. Tadic´ (IT-94-1-A-AR77), Decision on the Application for Leave to Appeal, 25 October 2000. Tadic´ (IT-94-1-A-AR77), Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001, p. 3 (emphasis added). Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, paras. 72–77. Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 5. The ruling is discussed by Lombardi, ‘Legitimacy and the Expanding Power of the ICTY’.

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Review The statutes admit a procedure known as ‘review’, which is distinct from appeal. As the ICTR Appeals Chamber noted, ‘[t]he mechanism provided in the Statute and Rules for application to a Chamber for review of a previous decision is not a novel concept invented specifically for the purposes of this Tribunal. In fact, it is a facility available both on an international level and indeed in many national jurisdictions, although often with diVerences in the criteria for a review to take place.’210 Four criteria must be met, three of them set out in the statutes. First, there must be a new fact, defined as ‘new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings’.211 In other words, the new fact must not have been among the issues that the deciding body could have taken into account in reaching its verdict.212 Legal developments, resulting from the evolving case law of the tribunals, do not constitute ‘new facts’.213 Second, the new fact must not have been known by the moving party at the time of the original proceedings. Here, it is irrelevant whether the new fact existed before the proceedings or during them; the question is whether the moving party and the deciding body knew of its existence.214 Third, it must be shown that the new fact could have been a decisive factor in reaching the original decision.215 Finally, the ICTY and ICTR RPE add the requirement that the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party.216 The Appeals Chamber has relaxed these requirements somewhat in ‘wholly exceptional circumstances’ where there is the possibility of a miscarriage of justice. Then, it will allow review based solely on the existence of a new fact which could have been a decisive factor in reaching the original decision, regardless of whether it might have been known to the moving party through due diligence.217 The defence may seek review at any time, even many years after the final judgment. The Prosecutor may only apply for review within one year after 210

211 212 213 214 215 216

217

Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. Jelisic´ (IT-95-10-R), Decision on Motion for Review, 2 May 2002, p. 3. Tadic´ (IT-94-1-R), Decision on Motion for Review, 30 July 2002, para. 25. Ibid., para. 41. Delic´ (IT-96-21-R-R119), Decision on Motion for Review, 25 April 2002, p. 7. ICTY Statute, art. 26; ICTR Statute, art. 25; SCSL Statute, art. 21. ICTY RPE, Rule 119; ICTR RPE, Rule 120. The requirement has been omitted from SCSL RPE, Rule 120. Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 65; Tadic´ (IT-94-1-R), Decision on Motion for Review, 30 July 2002, paras. 26–27.

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final judgment. This curious exception to the general rule of equality between the parties is set out in the RPE, and finds no support within the statutes. Arguably, it creates a kind of statutory limitation applicable to prosecutions for core crimes that might be deemed incompatible with fundamental norms of international law. No time limit for review is provided in the SCSL RPE. Motions for review can only be filed with respect to decisions that put an end to proceedings.218 Rulings by a Pre-Hearing Judge of the Appeals Chamber219 are not therefore subject to review. In such situations, the appropriate proceeding is to make a motion for reconsideration before the Pre-Hearing Judge who made the initial decision. A motion for reconsideration will be considered if the litigant can demonstrate ‘exceptional circumstances’.220 The review proceedings take place before the Chamber whose ruling is sought to be reviewed. Normally this will be the Appeals Chamber, as in almost all cases before the tribunals it is the Appeals Chamber that brings an end to the proceedings. However, in the handful of cases for which there has been no appeal, a motion for review belongs before the Trial Chamber.221 In Tadic´, the Appeals Chamber considered a situation where a new fact might have been discovered after conviction but prior to determination of the appeal. Ultimately, it was not satisfied that no new fact had been uncovered. But it said that if this had been the case, it would have referred the matter back to the Trial Chamber.222 It distinguished this from a situation where new evidence of a fact already addressed at trial becomes available during the appeal proceedings. Exceptionally, the SCSL requires that all applications for review be presented to the Appeals Chamber, which may refer the matter to the Trial Chamber or retain jurisdiction depending upon the circumstances.223 If any of the judges who sat in the original case are no longer members of the Tribunal, the President may appoint a judge or judges in their place.224 As part of the Tribunal’s ‘completion strategy’, it will be necessary to establish a mechanism to review decisions if new evidence becomes available and the Appeal or Trial Chambers no longer exist.

218

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223 224

Semanza (ICTR-97-20-A), Arreˆt (Requeˆte en re´vision de la de´cision de la Chambre d’appel du 31 mai 2000), 4 May 2001, p. 2; Tadic´ (IT-94-1-R), Decision on Motion for Review, 30 July 2002, para. 24; Bagilishema (ICTR-95-1A-A), Judgment (Reasons), 3 July 2002, paras. 10–11. Known as a ‘Pre-Appeal Judge’ at the ICTR: ICTR RPE, Rule 108bis. Bagilishema (ICTR-95-1A-A), Judgment (Reasons), 3 July 2002, paras. 10–11. Tadic´ (IT-94-1-R), Decision on Motion for Review, 30 July 2002, para. 22. Tadic´ (IT-94-1-A), Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998. SCSL RPE, Rule 121. ICTY RPE, Rule 119(A); ICTR RPE, Rule 120(A).

12 Evidence

The Statute of the Nuremberg Tribunal said that the court was not bound ‘by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value.’1 As the specialists on the subject of international criminal evidence, the late Richard May and Marieke Wierda, have observed, [a]lthough the trials were adversarial and the parties alone were responsible for calling the evidence, the judges were sitting without a jury, and the common law rules designed to prevent jurors from hearing prejudicial evidence were discarded in favour of a liberal approach akin to that of civil law systems. The result was an expeditious trial of the accused - as required by the Charter - which was completed in ten months and in which issues such as the admissibility of evidence did not take up much time.2

The Secretary-General’s report accompanying the draft statute of the ICTY said that the judges should adopt rules of procedure and evidence to govern ‘the admission of evidence, the protection of victims and witnesses and other appropriate matters’. Section 3 of Part IV the ICTY RPE, entitled ‘Rules of Evidence’, consists of thirteen distinct provisions.3 Other Rules concerning evidence appear throughout the RPE.4 The law of evidence before the tribunals is also comprised of various principles established in the case law. The law of evidence has evolved considerably since Nuremberg. It has been influenced by principles drawn from the international law of human 1

2

3 4

Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 19. Richard May and Marieke Wierda, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, (1999) 37 Columbia Journal of Transnational Law 725, at pp. 729–730 (references omitted). ICTY RPE, Rules 89–98. Also: ICTR RPE, Rules 89–98; SCSL RPE, Rule 89–98. E.g., ICTY RPE, Rule 115, ICTR RPE, Rule 115, SCSL RPE, Rule 115 (‘additional evidence’); ICTR RPE, Rule 70(F), SCSL RPE, Rule 70(F) (exclusion of evidence).

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rights, for example the exclusionary rule.5 Other developments manifest a greater concern with witness protection, major reforms in the area of evidence in cases of sexual assault, as well as some important technological developments, such as DNA testing.6 The international tribunals have been strongly influenced by common-law approaches, which favour the presentation of evidence in open court, and leave to the parties themselves rather than to the judges the determination of what evidence is to be produced.

General principles concerning admissibility of evidence In a provision entitled ‘General Provisions’, the RPE declare that a Chamber is to apply the rules of evidence set out in the Section. It is not ‘bound by national rules of evidence’.7 As an ICTR Trial Chamber explained, in Akayesu, ‘the Chamber . . . is not restricted under the Statute of the Tribunal to apply any particular legal system and is not bound by any national rules of evidence’.8 According to an ICTY Trial Chamber, ‘the Tribunal’s jurisprudence warns against the importation of domestic procedures ‘‘lock, stock and barrel’’ into the Tribunal’s legal system’.9 In Jelisic´, Judge Pocar emphasised the need to avoid ‘the application, in a mechanical fashion, of national solutions without assessing whether they may require adaptations to the needs of the ˇ elebic´i, another Trial Chamber said: procedure before this Tribunal’.10 In C ‘A Rule may have a common law or civilian origin but the final product may be an amalgamation of both common law or civilian elements, so as to render it sui generis.’11

Relevant and probative evidence The general principle, set out in ICTY and ICTR Rule 89(C), is that the Tribunal may admit ‘any relevant evidence which it deems to have probative value’. The equivalent Rule in the SCSL RPE says more laconically that ‘[a] Chamber may admit any relevant evidence’. The ICTY Appeals Chamber has

5

6 7 8 9

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ICTY RPE, Rule 95; ICTR RPE, Rule 95; SCSL RPE, Rule 95. See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, annex, art. 15. May and Wierda, ‘Trends in International Criminal Evidence’, at pp. 733–734. ICTY RPE, Rule 89(A); ICTR RPE, Rule 89(A); SCSL RPE, Rule 89(A). Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 130. Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 7. Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge Pocar, 5 July 2001. Delalic´ et al. (IT-96-21-T), Decision on Motion on Presentation of Evidence by the Accused, 1 May 1997, para. 15.

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described this Rule as a ‘residual power’ of the tribunals.12 It has also said that ‘it is the duty of the Trial Chamber to determine the probative value of each exhibit or witness testimony, based on their relevance and credibility’.13 Article 89(C) uses the word ‘may’. Therefore, even if evidence is relevant and of probative value, it is a matter of discretion whether the Trial Chamber will admit it. As one judge has pointed out, the discretion should not be exercised where to do so conflicts with other Rules and the general scheme for the admission and presentation of evidence established by the Rules.14 Trial Chambers must bear in mind the right of the accused, ‘to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’.15 Admissibility of evidence should not be confused with the weight it is to be given. The tribunals will often declare that evidence is admissible, but then declare that it is of little weight. The condition that evidence be ‘relevant’ does not pose any great theoretical problems. When Kupresˇkic´ attempted to produce evidence that Bosnian Muslims may have committed atrocities against Bosnian Croat villages in Ahmici region, the Tribunal declared this irrelevant, noting the inadmissibility of the tu quoque defence. But the Trial Chamber allowed evidence of events occurring in villages other than Ahmici to the extent that it tended to disprove allegations made by the Prosecutor that the Bosnian Croats subjected Bosnian Muslims to persecution. In other words, the admissibility of evidence of atrocities committed against Bosnian Croats depended on the purpose for which it was adduced.16 The meaning of ‘probative value’ depends, of course, on what it is that is supposed to be proven. To support his argument that he had been given incompetent counsel, Akayesu produced letters indicating he had insisted upon withdrawing his assigned lawyer. The Appeals Chamber said the letters had probative value only to the extent that they confirmed Akayesu’s insistence on having his assigned counsel withdrawn, but that they could not have any probative value with respect to the allegation that his counsel was incompetent, because they emanated from him.17 Purely documentary evidence of fact about what happened as part of the judicial investigative process 12

13 14

15 16

17

Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Appeal regarding Statement of a Deceased Witness, 21 July 2000. Also: Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 56 (‘residual discretion’). Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 129. Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 February 1999, esp. paras. 4–24. ICTY Statute, art. 21(4)(e); ICTR Statute, art. 20(4)(e); SCSL Statute, art. 17(4)(e). Kupresˇkic´ et al. (IT-95-16-T), Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, 17 February 1999. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 81.

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undertaken by another court, including on-site reports, was deemed to be of probative value.18 In the Akayesu trial, both Prosecutor and defence made liberal use of witness statements to elicit discrepancies during cross-examining. The Trial Chamber found generally that ‘[i]n the circumstances, the probative value attached to the [prior] statements is, in the Chamber’s view, considerably less than direct sworn testimony before the Chamber’.19 In another case, where oral testimony varied from the previous written statement of a witness taken by the Prosecutor’s investigators, the Trial Chamber opined that variation may occur at times for appreciable reasons without giving cause to disregard the statement in whole or in part.20 One ICTY Trial Chamber determined that a Report prepared by an Investigations Team Leader from the OYce of the Prosecutor, which summarised information contained in a dossier of evidence relating to an attack on the village of Tulica, was of no probative value. Because the Investigator was not reporting as a contemporary witness of fact, and could merely give evidence that material was or was not in the file, the Report was not admitted into evidence.21 In another case, involving ‘summarising evidence’ prepared by an investigator, the Appeals Chamber noted that ‘the basic issue is whether the material being summarised would itself be admissible’ and that ‘[t]he admissibility of hearsay evidence pursuant to Rule 89(C) should not permit the introduction into evidence of material which would not be admissible by itself ’.22 As at Nuremberg, it has never been seriously questioned that hearsay evidence is admissible in proceedings before the ad hoc tribunals.23 But this is true only to the extent that such evidence is relevant and has probative value. The probative value of a hearsay statement depends upon the context and character or the evidence in question. The fact that the evidence is hearsay

18

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20

21

22

23

Kordic´ et al. (IT-95-14/2-T), Decision on the Prosecution Application to Admit the Tulica Report and Dossier into Evidence, 29 July 1999. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 136; approved in Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 133. Also: Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 86. Kayishema et al. (ICTR-95-1-T), Order on the Probative Value of Alleged Contradiction between the Oral and Written Statement of a Witness During Examination, 17 April 1997. Kordic´ et al. (IT-95-14/2-T), Decision on the Prosecution Application to Admit the Tulica Report and Dossier into Evidence, 29 July 1999. Milosˇevic´ (IT-02-54-AR73.2), Decision on Admissibility of Prosecution’s Investigator Evidence, 30 September 2002, para. 21. Tadic´ (IT-94-1-T), Decision on the Defence Motion on Hearsay, 5 August 1996; Blasˇkic´ (IT-95-14-T), Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability, 26 January 1998.

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does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be aVorded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.24 Although Rule 89(C) does not use the word, the tribunals have held that there is a third condition, namely that evidence be ‘reliable’.25 According to an ICTY Trial Chamber, ‘for evidence to be relevant, and to have a nexus between it and the subject matter, such evidence must be reliable. The same is true for evidence which is said to have probative value.’26 Trial Chambers have developed a ten-point list of guidelines that includes the admonition that ‘the parties may be called upon by the Trial Chamber to provide a minimum of proof that would be suYcient to constitute a prima facie indicia of reliability if the document so warrants’.27 This is not a simple principle to administer, because the credibility and reliability of evidence are distinct issues from admissibility. Admissibility is essentially a question of law, whereas reliability and credibility are questions of fact. In Musema, an ICTR Trial Chamber said: ‘As a general principle, the Chamber attaches probative value to evidence according to its credibility and relevance to the allegations at issue. As the Chamber has noted above, the probative value of evidence is based upon an assessment of its reliability.’28 The issue of reliability is specifically addressed in Rule 95, which says that ‘[n]o evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings’. But the principle that reliability is an element of determination of whether evidence is relevant and of probative value is broader than the exclusionary rule in Rule 95, 24

25

26

27

28

Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 62–64; Kordic´ et al. (IT-9514/2-AR73.5), Decision on Appeal regarding Statement of a Deceased Witness, 21 July 2000. Early cases at the ICTY held that reliability was not a condition of admissibility, given the fact that Sub-rule 89(C) was silent on the subject. See: Delalic´ et al. (IT-96-21T), Decision on the Prosecution’s Oral Requests for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused, Zdravko Mucic´, to provide a Handwriting Sample, 19 January 1998; Delalic´ et al. (IT-96-21-T), Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998. Delalic´ et al. (IT-98-21-T), Decision on the Admissibility of Exhibit 155, 19 January 1998, para. 32. Brdanin et al. (IT-99-36-PT), Order on the Standards Governing the Admission of Evidence, 15 February 2002; Stakic´ (IT-97-24-PT), Provisional Order on the Standards Governing the Admission of Evidence and Identification, 25 February 2002. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 38–39.

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because it contemplates evidence that may be unreliable for reasons other than the methods by which it was obtained. Thus, determinations of reliability at the admissibility stage are only made in the clearest of situations. For example, a Trial Chamber has refused admission of polygraph evidence, concluding that ‘the consensus in the scientific community’ as well as case law in the United States of America, Germany and the United Kingdom holds ‘that polygraph examinations are an unreliable indication of credibility’.29 An unsworn statement by a deceased person was admitted into evidence in the Kordic´ trial. Midhat Haskic´ had given a statement to an ICTY investigator that incriminated the accused, but died before he could actually testify in court. The Trial Chamber allowed the statement to be produced in evidence. It observed that the fact it had not been made under oath, and had not been subject to cross-examination, was not an obstacle to it being considered relevant and having probative value. These were factors that aVected the weight of the evidence rather than its admissibility.30 The Appeals Chamber gave Kordic´ leave to appeal the decision.31 The question, according to the Appeals Chamber, was whether the ‘unsworn, uncross-examined, out-of-court statement of a deceased witness should have been admitted into evidence as the only proof of the accused’s presence in a particular place at a particular time’.32 Furthermore, the Appeals Chamber considered the fact that the statement was uncorroborated. The Appeals Chamber agreed that the Trial Chambers had broad discretion to admit evidence, but said that such discretion was not unfettered and should be exercised ‘in harmony with the Statute and the other Rules to the greatest extent possible’.33 The Appeals Chamber said that the statement was ‘so lacking in reliability that it should have been excluded as without probative value’ under Rule 89(C).34 Writing on the subject of admitting out-of-court and unsworn witness statements, Judge Patricia Wald has said: I must admit that I find the use of prior witness statements as a substitute for live testimony troublesome. In my short time at the Tribunal I have 29

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31

32

33 34

Naletilic´ et al. (IT-98-34-PT), Decision on the Request of the Accused to be Given the Opportunity to be Interrogated Under Application of a Polygraph, 27 November 2000. Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000. Kordic´ (IT-95-14/2-AR73.5), Decision on Application for Leave to Appeal and Scheduling Order, 28 March 2000. Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, p. 18. Ibid., p. 20. Ibid., p. 28. The case is discussed extensively in: Megan A. Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’, (2003) 34 California Western International Law Journal 47.

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seen too many instances in which witnesses on the stand have changed, reneged, or even repudiated earlier statements which though closer in time to the events, had not been tested in any way and were unsworn. Often the statement the witness signs for a Prosecution investigator in the field is not even in his native language. It has been orally translated from English and read to him in Serbo-Bosnian-Croat. There is little doubt that it would be infinitely more eYcient for witnesses merely to aYrm prior statements than to give their testimony live and be cross-examined on it. But the excruciating process of facing one’s torturer, reliving awful times, and defending one’s account on cross-examination may sometimes be indispensable to the integrity of the Tribunal’s final product. Certainly, I believe where the testimony is important to a critical issue it should be live.35

The SCSL Appeals Chamber has dismissed reliance on the so-called ‘ best evidence rule’, describing it as ‘an anachronism . . . developed in a preindustrial age when copying was done by hand and, given the risks of transcription errors, the courts required to see the handwritten originals’. The case concerned the admissibility of a statement by a witness in a hearing on provisional release. The witness had previously testified in court, but was not able to sign an original letter giving assurances of supervision of an accused in the event of release because at the time the letter was produced she was travelling abroad. The judge of the Trial Chamber had refused to admit the letter, invoking the ‘best evidence rule’, and saying that an original bearing her signature was required; his ruling was subsequently overturned on appeal. The SCSL Appeals Chamber said that Rule 89(C) ‘ensures that the administration of justice will not be brought into disrepute by artificial or technical rules, often devised for jury trial, which prevent judges from having access to information which is relevant. Judges sitting alone can be trusted to give second-hand information appropriate weight.’36 It has been held, by an ICTY Trial Chamber in a ruling that was never tested on appeal, that Rule 89(C) is limited by customary law. Accordingly, ‘the International Tribunal’s Rules may be aVected by customary international law, and . . . there may be instances where the discretionary power to admit any relevant evidence with probative value may not be exercised where the admission of such evidence is prohibited by a rule of customary international law’. The Trial Chamber said that customary international law recognised a privilege for the International Committee of the Red Cross attaching to its

35

36

Patricia M. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court’, (2001) 5 Washington University Journal of Law and Policy 87, at p. 112. Norman et al. (SCSL-04-14-AR65), Fofona – Appeal Against Decision Refusing Bail, 11 March 2005.

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employees, who could not testify before the Tribunal without the consent of the organisation.37

Exclusion of evidence Rule 89(D) is in a sense the counterpart to Rule 89(C), in that it gives the Chamber the discretion to exclude evidence whose probative value is substantially outweighed by the need to ensure a fair trial. The Appeals Chamber has held that Rule 89(D) does not preclude the admission, by the defence or the Prosecutor, of hearsay evidence, in the form of the transcript of the testimony of a witness given in another trial.38 The ICTR and SCSL RPE formulate the same concept, but without a distinct provision in Rule 89. Instead, ICTR Rule 70(F) states that nothing aVects a Trial Chamber’s power under Rule 89(C) to exclude evidence ‘if its probative value is substantially outweighed by the need to ensure a fair trial’. SCSL Rule 70(F) says nothing aVects a Trial Chamber’s power under Rule 89(C) to exclude evidence ‘if its admission would bring the administration of justice in the Special Court into serious disrepute’. An example of exclusion under these provisions is the decision of the ICTY Appeals Chamber to deny a subpoena addressed to a war correspondent. Overturning a Trial Chamber ruling,39 the Appeals Chamber said there must be a balancing exercise between ‘the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial and . . . the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern’.40 The Appeals Chamber said that a subpoena to a war correspondent whose potential evidence satisfies the criteria of relevance and probative value should nevertheless not be issued until it can be demonstrated that the evidence sought cannot reasonably be obtained elsewhere. Evidence may also be excluded pursuant to Rule 95. ICTY Rule 95 says that ‘[n]o evidence shall be admissible if obtained by methods which cast 37

38

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40

Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999, paras. 40–42 (see also paras. 74, 76, 80). Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 27. Brdanin et al. (IT-99-36-T), Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, 7 June 2002. Brdanin et al (IT-99-36-AR73.9), Decision on Interlocutory Appeal, 11 December 2002, para. 46. See also: Brdanin et al. (IT-88-36-PT), Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23 May 2002.

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substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings’. SCSL Rule 95 puts the same concept more simply: ‘No evidence shall be admitted if its admission would bring the administration of justice into serious disrepute.’ This is not a mandatory rule of exclusion of illegally obtained evidence, unlike the case in some national jurisdictions.41 As an ICTY Trial Chamber noted, ‘the drafters of the Rules specifically chose not to set out a rule providing for the automatic exclusion of evidence illegally or unlawfully obtained’.42 ˇ erkez, for example, Judge May said that ‘even if the illegality In Kordic´ and C was established . . . [w]e have come to the conclusion that the evidence obtained . . . by eavesdropping on an enemy’s telephone calls during the course of a war is certainly not within the conduct which is referred to in Rule 95. It’s not antithetical to and certainly would not seriously damage the integrity of the proceedings.’43 In Brdanin, an ICTY Trial Chamber said that ‘communications intercepted during an armed conflict are not as such subject to exclusion under Rule 95 and should therefore be admitted upon a challenge based on the grounds laid down in that Rule’.44 But evidence obtained when a suspect was interrogated by Austrian police, prior to him being handed over to ICTY custody, was excluded by a Trial ˇ elebic´i because the accused had not been informed of his right Chamber in C to counsel.45 The Trial Chamber admitted statements that the accused Mucic´ made in a subsequent set of interviews with the Austrian police, after he had been properly advised of his rights,46 and this was upheld on appeal.47

Lacunae in the Rules 48

The ‘sweeping powers’ authorised by common Rule 89(B) allow that ‘[i]n cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles 41

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44

45

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Miranda v. Arizona, 384 US 436 (1966). A more nuanced approach is taken in Canada: Canadian Charter of Rights and Freedoms, s. 24(2). Brdanin (IT-99-36-T), Decision on the Defence ‘Objection to Intercept Evidence’, 3 October 2003, para. 54. Kordic´ et al. (IT-95-14/2-T), Oral Decision of Judge May, 2 February 2000, Transcript, pp. 13693–13694. Brdanin (IT-99-36-T), Decision on the Defence ‘Objection to Intercept Evidence’, 3 October 2003, para. 53. Delalic´ et al. (IT-96-21-T), Decision on Zdravko Mucic´’s Motion for the Exclusion of Evidence, 2 September 1997. Delalic´ et al. (IT-96-21-T), Decision on the Motion ex parte by the Defence of Zdravko Mucic´ Concerning the Issue of a Subpoena to an Interpreter, 8 July 1997. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 528–564. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 322.

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of law’. This amounts to a general authorisation to judges to devise evidentiary rules in the absence of an applicable provision in the Rules. It is designed for situations where there is a genuine lacuna in the Rules, that is, ‘where no guidance is given by those sources’.49 Common Rule 89(B) has been invoked to support the view that the basic rule is to allow flexibility and eYcacy. The RPE are broader than the evidentiary regimes in both the common and civil law systems and they reflect an international amalgamated system without necessarily adopting a single national system of evidence.50 Aside from some very general references to common Rule 89(B), as being part of the general law applicable to proceedings, the provision has been invoked to resolve practical issues of evidence on only a few occasions. In Kupresˇkic´, for example, an ICTY Trial Chamber relied on the provision in ordering the Prosecution and defence not to communicate with a witness after he or she has taken the solemn declaration and commenced testifying, unless authorised. According to the Trial Chamber, ‘a witness, either for the Prosecution or Defence, once he or she has taken the Solemn Declaration pursuant to Rule 90(B) of the Rules of Procedure and Evidence, is a witness of truth before the Tribunal and, inasmuch as he or she is required to contribute to the establishment of the truth, not strictly a witness for either party’.51 An ICTR Trial Chamber applied Rule 89(B) when the defence sought leave to call witnesses in rejoinder, to respond to new evidence presented by the Prosecutor in rebuttal. The Trial Chamber found no guidance in the Rules as to when rejoinder evidence should be allowed. It applied ‘the rules of the common law’, holding that rejoinder evidence should only be allowed in relation to unanticipated issues newly raised in rebuttal. The Prosecutor had in fact presented new evidence in rebuttal to respond to a previously unannounced alibi defence. The Trial Chamber rejected the request of the defence.52 In Rutaganda, defence counsel objected that expert witnesses were heard without first determining, in an adversarial debate, whether or not they were in fact properly qualified. Under the common law system, expert testimony would normally be authorised only following a special hearing, known as a voir dire, in order to determine whether in fact they should be allowed to take the stand and give opinion evidence. After noting that the Rules lay down a specific procedure for admitting an expert witness’s report without hearing 49 50

51

52

Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 11. Bagosora et al. (ICTR-96-7-T), Decision on the Defence Motion for Pre-determination of Rules of Evidence, 8 July 1998. Kupresˇkic´ et al. (IT-95-16-T), Decision on Communication Between the Parties and their Witnesses, 21 September 1998. Semanza (ICTR-97-20-T), Decision on Defence Motion for Leave to Call Rejoinder Witnesses, 30 April 2002.

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the witness, the Appeals Chamber observed that they do not require a voir dire examination of the person called as an expert. In the instant case, the Trial Chamber clearly chose an approach that consists in having the qualifications of the persons called as experts by the Prosecution clarified during their examination-in-chief by the Prosecution and cross-examination by Counsel for the Appellant. This amounts to admitting the witness statement before having ruled on the admission of the witness as an expert. The Appeals Chamber considers that, where the Rules are silent as to the procedure for taking expert evidence at the hearing, and in accordance with the provisions of Rule 89(B) of the Rules, this approach does not appear to be contrary to the spirit of the Statute and the general principles of law, and was such as would permit a fair determination of the case.53

Where a particular subject is dealt with in the Rules, but a potential aspect or modality of it has been omitted, the proper construction is that that aspect or modality is prohibited; a Chamber is not at large to act creatively on the basis of Rule 89(B).54 For example, the Prosecutor has attempted to rely on Rule 89(B) in order to expand the ‘judicial notice provisions of Rule 94’. She has argued, unsuccessfully, that where Rule 94 does not allow the court to take judicial notice of certain facts, this may be accomplished by applying the general rule in Rule 89(B).55 Defence counsel have countered that where there is a special rule in the RPE, Rule 89(B) is not applicable.56 In a general sense, the ICTY Appeals Chamber has seemed hesitant to rely upon the norm set out in Rule 89(B), preferring to base itself on a doctrine of inherent jurisdiction.57 In several cases, after concluding that there is no applicable provision in the RPE, the tribunals have crafted an applicable principle but without any reference to common Rule 89(B).58 The ICTY Appeals Chamber has cautioned that ‘[a] Trial Chamber’s exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible’.59 The ICTY 53 54

55

56 57 58

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Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 164. Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 February 1999, para. 22. Nyiramasuhuko et al. (ICTR-97-21-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2000, paras. 13, 35, 140. Ibid., para. 23. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 322. Naletilic´ et al. (IT-98-34-PT), Decision on the Request of the Accused to be Given the Opportunity to be Interrogated Under Application of a Polygraph, 27 November 2000; Brdanin et al. (IT-99-36-AR73.9), Decision on Interlocutory Appeal, 11 December 2002, para. 31. Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000.

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Appeals Chamber has criticised a Trial Chamber that found implicit support for the application of national rules of evidence in the application of common Rule 89(B).60 It confirmed that rules of evidence found in the Rules should be primarily applied, with the assistance of national principles only if necessary for guidance in the interpretation of such Rules.61 There is certainly a danger that Trial Chambers apply common Rule 89(B) as if it constituted a carte blanche for improvisation.62

Burden of proof Guilt must be proven ‘beyond reasonable doubt’.63 Although an amendment specifying the ‘reasonable doubt’ standard of proof was defeated during the drafting of article 14 of the International Covenant on Civil and Political Rights,64 the Human Rights Committee has held this to be essential to the right to a fair trial in criminal proceedings.65 The Prosecutor must prove each of the elements of a specific oVence beyond a reasonable doubt before there ˇ elebic´i, an ICTY Trial Chamber said that ‘the can be a conviction. In C Prosecution is bound in law to prove the case alleged against the accused beyond a reasonable doubt. At the conclusion of the case the accused is entitled to the benefit of the doubt as to whether the oVence has been proved.’66 Another Trial Chamber, in Brdanin, said: ‘In determining whether the guilt of the Accused has been established to this standard with respect to each particular count in the Indictment, the Trial Chamber has been careful to consider whether there is any reasonable explanation of the evidence accepted by it other than the guilt of the Accused.’67 Common-law judges have devoted considerable eVort to defining the notion of reasonable doubt, generally in an attempt to provide clear instructions for lay jurors. This is surely less important for experienced judges such ˇ elebic´i, the Trial Chamber as those likely to be elected to the Tribunal. In C of the ICTY adopted a common-law definition: A reasonable doubt is a doubt, which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is 60

61 62

63 64 65 66 67

Delalic´ et al. (IT-96-21-T), Decision on Zdravko Mucic´’s Motion for the Exclusion of Evidence, 2 September 1997, para. 34. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 538. E.g., Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, paras. 33, 42; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 35. ICTY RPE, Rule 87(A); ICTR RPE, Rule 87(A); SCSL RPE, Rules 87(A), 98. UN Doc. E/CN.4/365, UN Doc. E/CN.4/SR.156. ‘General Comment 13/21’, UN Doc. A/39/40, pp. 143–147, para. 7. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 601. Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 23.

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one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment.68

But the Tribunal’s judges are not lay jurors, and the reference of the ˇ elebic´i is unnecessary. According to United States case law, Tribunal in C ‘reasonable doubt’ means a doubt that is founded in reason. It does not mean ‘any doubt’, ‘beyond a shadow of a doubt’, ‘absolute certainty’ or ‘moral certainty’.69 Nor, at the other end of the scale, does it imply ‘an actual substantive doubt’ or ‘such doubt as would give rise to a grave uncertainty’.70 Citing authority from the post-Second World War tribunals, May and Wierda have said that if ‘from credible evidence two reasonable inferences may be drawn, one of guilt and the other of innocence, the latter must be taken’. Proof beyond a reasonable doubt means that the accused’s guilt must be proven to a moral certainty.71 In Pohl, the United States Military Tribunal said: ‘It is such a doubt as, after full consideration of all the evidence, would leave an unbiased, reflective person charged with the responsibility of decision, in such a state of mind that he could not say that he felt an abiding conviction amounting to a moral certainty of the truth of the charge.’72 The International Military Tribunal at Nuremberg applied the standard of reasonable doubt, stating explicitly in its judgment that Schacht and von Papen were to be acquitted because of failure to meet that burden of proof.73 An ICTY Trial Chamber was found to have misapplied the test of ‘reasonable doubt’ when it entertained the remote possibility that five men killed in Jaskici might have been victims of a large force of Serb soldiers rather than the smaller group with which Tadic´ was associated. But the Appeals Chamber resisted the invitation, from the Prosecutor, to define the scope of the term ‘reasonable doubt’ further.74 In a contempt of court proceeding, an ICTY Trial Chamber concluded that although testimony ‘raised grave suspicions’ about the contact of a lawyer, ‘[n]ot even the gravest of suspicions can establish proof beyond reasonable doubt’.75 68 69 70 71

72 73

74

75

Ibid., para. 600; citing Green v. R, (1972) 46 ALR 545. Victor v. Nebraska, 127 L.Ed.2d 583 (1994). Cage v. Louisiana, 498 US 39 (1990); Sullivan v. Louisiana, 113 SCt 2078 (1993). May and Wierda, ‘Trends in International Criminal Evidence’, at p. 754. Citing: United States v. Flick et al., (1948) 6 TWC 1, p. 1188 (United States Military Tribunal); United States v. Brandt et al., (1948) 2 TWC 1, p. 184 (United States Military Tribunal); United States v. von Weizsaecker et al., (1948) 14 TWC 1, p. 315 (United States Military Tribunal). United States v. Pohl et al., (1948) 5 TWC 1, p. 965 (United States Military Tribunal). France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of International Law 172, pp. 302, 318. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 181–183. For the proposals of the Prosecutor, see para. 174. Simic´ et al. (IT-95-9-R77), Judgment in the Matter of Contempt Allegations Against an Accused and his Counsel, 30 June 2000.

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Although the ultimate question of guilt or innocence must be determined according to a burden of proof of reasonable doubt, most other decisions made by the tribunals require proof on a balance of probabilities, or a preponderance of evidence. The ICTY Appeals Chamber has described this as ‘satisfaction that, more probably than not, what is asserted is true’.76 It has also been described as an ‘onus of persuasion’77 or an ‘onus of establishing’.78 The ‘balance of probabilities’ standard is used explicitly in the RPE,79 although the references are probably unnecessary. Generally, it should be presumed that the balance of probabilities standard applies to issues of evidence other than the ultimate question of guilt or innocence, unless there is some special provision. This seems to be the approach taken by the SCSL, which has removed references to the balance of probabilities standard from the RPE. There are two references to mitigating circumstances in the statutes. The oYcial position of an accused is not to mitigate punishment.80 On the other hand, the fact that a person acted pursuant to superior orders ‘may be considered in mitigation of punishment if the International Tribunal determines that justice so requires’.81 The RPE instruct the Trial Chambers that in addition to the factors that the Statute requires them to consider, that is, the gravity of the oVence and the individual circumstances of the oVender, they are also to take into account ‘such factors as: (i) any aggravating circumstances; (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction’.82 In practice, this is just another way of examining the gravity of the oVence and the individual circumstances of the oVender. For example, the ‘gravity’,83 the ‘extreme gravity’84 or the ‘intrinsic gravity’85 of an oVence have been invoked in many judgments as an ‘aggravating circumstance’. The Appeals Chambers have established that with respect to sentencing, aggravating circumstances must be proven beyond a reasonable doubt, but that mitigating circumstances need only be established on a balance of probabilities.86 76

77 78 79 80 81 82 83

84 85 86

Kvocˇka et al. (IT-98-30/1-A), Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zˇigic´, 7 February 2003, para. 17. Ibid., para. 14. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 590. ICTY RPE, Rules 92bis(C)(i), 105(D); ICTR RPE, Rules 92bis(C)(i), 105(D). ICTY Statute, art. 7(2); ICTR Statute, art. 6(2); SCSL Statute, art. 6(2). ICTY Statute, art. 7(4); ICTR Statute, art. 6(4); SCSL Statute, art. 6(4). ICTY RPE, Rule 101(B); ICTR RPE, Rule 101(B); SCSL RPE, Rule 101(B). Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 468–470; Ruggiu (ICTR-97-32-T), Judgment, 1 June 2000, paras. 47–51. Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 27–30. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 61–62. Delalic´ et al. (IT-96-2.1-A), Judgment, 20 February 2001, para. 763; Kunarac et al. (IT96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 847; Simic´ (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, para. 40.

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In practice, the tribunals apply the balance of probabilities standard in appropriate situations even when the RPE are silent. For example, the ICTY Appeals Chamber has interpreted Rule 67(A)(ii)(b) as referring to diminished mental responsibility where it is to be raised by the defendant as a matter in mitigation of sentence. As a defendant bears the onus of establishing matters in mitigation of sentence, where he relies upon diminished mental responsibility in mitigation, he must establish that condition on the balance of probabilities – that more probably than not such a condition existed at the relevant time.87

Nevertheless, with respect to aggravating circumstances, ICTY Trial Chambers have said that ‘fairness requires’ that the Prosecutor prove these beyond a reasonable doubt.88 On the other hand, the Appeals Chambers have confirmed that because the Prosecutor must prove beyond a reasonable doubt that the accused actually committed the crime, in invoking an alibi defence the accused need only raise a reasonable doubt.89 The only reference in the statutes to a burden of proof is in the provision concerning judicial review of the indictment prepared by the Prosecutor. The Prosecutor must be able to demonstrate to the confirming judge that a prima facie case exists justifying prosecution.90 This requires ‘suYcient information which justifies a reasonable suspicion that the suspect did in fact commit the crime or crimes for which he is charged’.91 Rule 47(A) phrases this somewhat diVerently, speaking of ‘suYcient evidence’. The term ‘suYcient evidence’ has been interpreted as meaning ‘essential facts, that when supported by evidence, could result in a conviction. This does not mean conclusive evidence or evidence beyond a reasonable doubt.’92 There are some rather confusing and seemingly incorrect statements about the burden of proof in certain Appeals Chamber rulings. On appeal, the Chamber will intervene only when ‘no reasonable trier of fact could have 87

88

89

90 91

92

Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 590. Also: Vasiljevic´ (IT98-32-T), Judgment, 29 November 2002, paras. 282, 292; Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 197. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 697; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 763; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 1090; Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 847; Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 272; Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 110; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 145. Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 113; Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 60. ICTY Statute, art. 19(1); ICTR Statute, art. 18(1). Nyiramashuko et al. (ICTR-97-21-I), Decision on the Preliminary Motion by Defence Counsel on Defects in the Form of Indictment, 4 September 1998, para. 3. Ibid.

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reached the conclusion of guilt beyond reasonable doubt’.93 This correct formulation was oddly transposed in another case: The Appeals Chamber will not call the findings of fact into question where there is reliable evidence on which the Trial Chamber might reasonably have based its findings . . . A party suggesting only a variation of the findings which the Trial Chamber might have reached therefore has little chance of a successful appeal, unless it establishes beyond any reasonable doubt that no reasonable trier of fact could have reached a guilty finding.94

The suggestion is that on appeal, there is a burden of proof beyond a reasonable doubt that is imposed upon the appellant. In reality, it is improper to speak of a ‘burden of proof ’ at the stage of an appeal. To succeed, the appellant must demonstrate that the factual determination of the Trial Chamber was unreasonable, but this need not be done ‘beyond a reasonable doubt’.

Compelling the production of evidence As international judicial institutions, the tribunals are dependent upon the cooperation of national justice authorities. The ICTY and ICTR statutes spell this out, requiring States to ‘comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to . . . (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents . . . ’.95 This obligation of cooperation is also reiterated in several Security Council resolutions. Many States have enacted legislation to facilitate cooperation with the tribunals in the collection of evidence, including compelling witnesses to appear. The SCSL presents this somewhat diVerently, because the obligation of the Government of Sierra Leone to assist the Court is ensured by treaty.96 Because the SCSL is not created pursuant to Chapter VII of the Charter of the United Nations, there is no obligation on States other than Sierra Leone to cooperate with the Tribunal. There is no specific reference in the statutes to compelling the presence of witnesses before the tribunals, but this is obviously implicit. The statutes aYrm the right of the accused ‘to obtain the attendance and examination of

93 94

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Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 288. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 12 (emphasis in original). Along the same lines: Kordic´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 290. ICTY Statute, art. 29(2); ICTR Statute, art. 28(2). Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 17.

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witnesses’,97 and this would not be very eVective if there were no means to exercise this right on his behalf under the same conditions as witnesses against him. The Rules authorise a judge or a Trial Chamber to ‘issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial’.98 This is the only reference to ‘subpoena’ in the Rules, although the expression is colloquially used to describe an order for the arrest and transfer of a suspect. In Blasˇkic´, the ICTY Appeals Chamber observed that the English version used the word ‘subpoena’, which is a ‘term of art’ in common-law jurisdictions usually designating compulsory orders issued by courts, the non-compliance with which may be ‘sanctioned’ as contempt of court. Indeed, the Latin word ‘subpoena’ means, literally, ‘under penalty’. The French-language version of the Rules99 uses the term ‘assignation’, which does not necessarily imply any imposition of a penalty. The ICTY Appeals Chamber observed that States cannot be the subject of penalties or sanctions imposed by an international court, and that the term ‘subpoena’ in the English text should therefore not be construed as always meaning a compulsory order.100 The tribunals cannot issue subpoenae to States101 or, for that matter, to international organisations such as the United Nations or the Organisation for Security and Cooperation in Europe.102 But the Tribunal can issue a binding order to a State to produce a witness, and then it is up to the State to decide how to carry out the order. The State itself may issue a subpoena, under its own national legislation, as a means of taking custody of the witness. An order for production of documents may be addressed to a State, to ‘a self-proclaimed entity de facto exercising governmental functions, whether recognised as a State or not’,103 and to an intergovernmental organisation, as well as to an individual. The authority to order a State to produce documents was extended to apply to an international organisation or a competent

97

98 99 100

101 102

103

ICTY Statute, art. 21(4)(e); ICTR Statute, art. 20(4)(e); SCSL Statute, art. 17(4)(e). Although it is worth observing that article 67(1)(e) of the Rome Statute is in similar terms, the ICC has no power to require that States parties compel the presence of witnesses. ICTY RPE, Rule 54; ICTR RPE, Rule 54; SCSL RPE, Rule 54. There is no French-language version of the SCSL Rules. Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 21. Ibid., para. 25. Kovacˇevic´ (IT-97-24-PT), Decision Refusing Defence Motion for Subpoena, 23 June 1998. Krstic´ (IT-98-33-PT), Binding Order to the Republika Srpska for the Production of Documents, 12 March 1999.

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organ, such as the NATO-led Stabilisation Force (SFOR) in Bosnia.104 It has also been held that a ‘purposive construction of the Statute yields the conclusions that such an order should be as applicable to collective enterprises of States as it is to individual States’. Therefore, article 29 of the Statute should be read as conferring on the ICTY ‘a power to require an international organization or its competent organ such as SFOR to cooperate with it’.105 However, when United Nations oYcials have testified before the tribunals, they have generally done so pursuant to a waiver of immunity from the jurisdiction.106 The Tribunal itself may issue a subpoena,107 but it has no means of enforcement, unless the individual is already in custody. To obtain a subpoena, the applicant party should demonstrate that it has made eVorts to contact the proposed witness and arrange for attendance in court by consent, as well as showing the relevance of the expected testimony.108 Where the Tribunal issues a subpoena, an individual who fails to appear may be considered in contempt.109 In most cases, witnesses testify voluntarily, and it is a rare event indeed for any lawyer, whether Prosecutor or defence counsel, to force a reluctant witness to testify. Many potential witnesses ask that a subpoena be issued so that they can show it to others, insisting that they are being forced to testify rather than cooperating, although in reality this is exactly what they are doing. The ICTY and ICTR RPE provide in some detail for the transfer of a detained witness to the seat of the court.110 The first person to be convicted by the tribunals, Drazen Erdemovic´, was in fact brought to The Hague pursuant to Rule 90bis. In early 1996, he was being held by the authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro) in connection with a criminal investigation into the war crimes committed against the civilian population in July 1995 in Srebrenica. On application by the Prosecutor, Judge Riad ordered Erdemovic´’s transfer and provisional detention 104

105 106

107

108

109

110

Simic´ et al. (IT-95-9-PT), Decision on Motion for Judicial Assistance to be provided by SFOR and Others, 18 October 2000. Ibid., para. 46. Blasˇkic´ (IT-95-14-T), Decision of Trial Chamber I on the Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, 12 May 1999. E.g., Blasˇkic´ (IT-95-14-T), Decision to Order the Witness Slavko Marin to Appear Before Trial Chamber I, 15 October 1998. The tribunals may issue subpoenae to organisations as well as to individuals: Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 21–27. Kupresˇkic´ et al. (IT-95-16-T), Decision on Defence Motion to Summon Witness, 8 February 1999, para. 15. Also: Krstic´ (IT-98-33-PT), Binding Order to the Republika Srpska for the Production of Documents, 12 March 1999. Delalic´ et al. (IT-96-21-T), Subpoena ad testificandum to Nurko Tabak, 25 June 1998; Delalic´ et al. (IT-96-21-T), Subpoena ad testificandum to Zlatko Ustalic, 1 July 1998. ICTY RPE, Rule 90bis; ICTR RPE, Rule 90bis.

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in the ICTY Detention Unit, for the purpose of testifying in the Karadzˇic´ and Mladic´ Rule 61 hearing.111 Aside from the Erdemovic´, case Rule 90bis has not proven particularly significant at the ICTY. The ICTR, on the other hand, has been frustrated by a lack of cooperation with the government that is obviously the most important with regard to compelling witness attendance, that of Rwanda itself.112 Rule 90bis has been of considerable importance to the ICTR.113 Rule 90bis has also been used to compel testimony of a person already convicted by the Tribunal and detained in a prison in a foreign country.114

Categories of evidence The tribunals distinguish between diVerent types of evidence. Thus, testimonial evidence may be given by a witness either in court or out of court, by means of video-link or deposition. Testimony may be delivered orally or in written form.115 Evidence may also be in the form of documents, or of objects. In addition to evidence of facts, ‘expert’ evidence may also be presented.

Testimonial evidence in court Although the evidentiary regime of the tribunals allows for great flexibility, from the beginning there has been a very strong preference for testimonial evidence delivered in open court. May and Wierda have argued that the contemporary trials of the United Nations tribunals rely much more on

111 112

113

114

115

Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 1. See, e.g., Ntahobari et al. (ICTR-98-42-T), Oral Decision to Adjourn Trial, 19 June 2002; Proseuctor v. Niyitegeka (ICTR-96-14-T), Decision to Adjourn Proceedings due to the Unavailability of Witnesses, 19 June 2002. See, e.g., Niyitegeka (ICTR-96-14-T), Order for the Transfer of Prosecution Witness KJ, 10 October 2002; Kajelijeli (ICTR-98-44A-T), Detention of Witnesses, Decision on the Prosecutor’s Urgent Ex Parte Motion Requesting an Order Discharging Prosecution Witnesses GDD, GAO, GDQ and GAP from further Detention in UNDF (Rule 90bis), 29 April 2002; Nahimana et al. (ICTR-99-52-0602), Order for Temporary Transfer of Two Detained Witnesses (AHI and DCH) Pursuant to Rule 90bis of the Rules of Procedure and Evidence, 7 August 2001; Niyitegeka (ICTR-96-14-0302), Decision relative a` la requeˆte du Procureur demandant au Tribunal d’ordonner le transferement d’un te´moin de´tenu (GK) en vertu des articles 90bis et 73 a) du re`glement, 11 December 2002; Gacumbitsi (ICTR01-64-0051), Decision Concerning the Prosecutor’s Motion for the Transfer of Witnesses Detained in Rwanda, Rule 90bis of the Rules of Procedure and Evidence, 11 July 2003; Bagambiki et al. (ICTR-99-46-0550), Decision on the Defence Motion for the Transfer of a Detained Witness from Rwanda, Rule 90bis, 17 February 2003. Bagosora et al. (ICTR-98-41-T), Order for the Transfer of Detained Prosecution Witness Omar Serushago, 2 October 2002. ICTY RPE, Rule 89(F). There is no equivalent provision in the ICTR or SCSL RPE.

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eyewitness testimony than their post-Second World War predecessors. They explain that this is because ‘[f]ew of the defendants [in the post-Second World War proceedings] committed atrocities with their own hands, and in fact they were rarely visible at or within many miles of the scenes of their worst crimes. They made plans and transmitted orders, and the most compelling witnesses against them were the documents which they drafted, signed, initialled, or distributed.’116 But while this observation may be true with respect to some of the initial prosecutions, such as that of Tadic´, who was an insignificant thug propelled by circumstance to the centre stage of international criminal law, many of the trials have dealt with leaders. Indeed, the longest of them all, only half-finished at the time of writing this book, is that of Slobodan Milosˇevic´, the contemporary trial that is most analogous to the Trial of the Major War Criminals at Nuremberg. Moreover, there has been a gradual tendency to reliance upon written evidence instead of oral evidence.117 Witnesses may be divided into two categories, ordinary witnesses and expert witnesses. In principle, an ordinary witness testifies about facts about which he or she has personal knowledge. An expert testifies about opinions that he or she is deemed qualified to provide. Documentary evidence must be presented by a witness who can testify as to the authenticity and provenance of the document, unless such documents are admitted by the other party. Witnesses are generally brought to the tribunal at the initiative of one of the parties, but once they begin to testify they are no longer considered witnesses of either of the parties to the trial but only as witnesses of justice.118 The witness may also be summoned at the request of the judges themselves, in order to complete the evidence produced by the parties.119 Before testifying, witnesses must make a solemn declaration: ‘I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.’120 The Rules allow a child to testify without making a solemn declaration, if the Chamber is of the opinion that the child is suYciently mature to

116 117

118

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May and Wierda, ‘Trends in International Criminal Evidence’, at p. 744. Stephen Kay, ‘The Move from Oral Evidence to Written Evidence: ‘‘The Law is Always Too Short and Too Tight for Growing Humankind’’’, (2004) 2 Journal of International Criminal Justice 495. Jelisic´ (IT-95-10-T), Decision on Communication Between Parties and Witnesses, 11 December 1998. ICTY RPE, Rule 98; ICTR RPE, Rule 98. The judges of the SCSL have eliminated Rule 98, but left another provision, Rule 85(A)(iv), which provides for the production of ‘[e]vidence ordered by the Trial Chamber pursuant to Rule 98’. See, e.g., Blasˇkic´ (IT-9514-T), Decision of Trial Chamber I in respect of the Appearance of Colonel Robert Stewart, etc., 25 March 1999. ICTY RPE, Rule 90(A); ICTR RPE, Rule 90(A); SCSL RPE, Rule 90(B). The SCSL RPE also allow for an oath on a holy book.

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be able to report the facts of which the child had knowledge and understands the duty to tell the truth. There is no record in any of the cases of a young child testifying before the tribunals. Because the prosecutions have invariably involved acts which occurred many years earlier, it is likely that witnesses who had been relatively young at the time of the oVence are old enough to understand the nature of a solemn declaration. The ICTY and ICTR Rules state that a judgment cannot be based on the unsworn testimony of a child, an exception to the general rule by which corroboration is not required.121 The SCSL RPE make no such exception, and it would seem theoretically possible for a person to be convicted based on the testimony of an unsworn child.122 In a general sense, examination of witnesses follows a pattern familiar to jurists from adversarial systems. After making a solemn declaration or taking an oath, the witness is first asked to testify in chief. During that testimony, the party presenting that witness may assist the witness in providing a narrative of events relative to the case. This is followed by cross-examination by the other party. The Rules limit cross-examination to the subject matter of the evidence-in-chief and matters aVecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the crossexamining party, to the subject matter of that case. When a witness has evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction to the evidence given by the witness. The Trial Chamber has a residual discretion to allow inquiry into additional matters.123 When cross-examination is concluded, the party who has called the witness may re-examine. In one case, the Trial Chamber denied defence counsel the right to cross-examine a prosecution witness for the second time, after the re-examination was concluded. A second cross-examination was only permitted where new matters had emerged during re-examination.124 The judges may always intervene to ask their own questions, although most are quite restrained and respect the adversarial nature of the proceedings. A person who has not yet testified should not be present when the testimony of another witness is delivered. Hearings are public, however, and it is not impossible that a person present during the trial subsequently has relevant evidence to deliver. The Rules use the word ‘shall’, suggesting that the prohibition is without exception, but it would seem too severe to refuse such testimony. But they add, wisely, that a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying.125 If 121 123 124

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122 ICTY RPE, Rule 90(B); ICTR RPE, Rule 90(B). SCSL RPE, Rule 90(C). ICTY RPE, Rule 90(H)(iii); ICTR RPE, Rule (G)(iii). Delalic´ et al. (IT-96-21), Decision on the Motion on Presentation of Evidence by the Accused, 1 May 1997. ICTY RPE, Rule 90(C); ICTR RPE, Rule 90(C); SCSL RPE, Rule 90(D).

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a witness were determined to watch other witnesses testify prior to the witness’s own testimony, this would be a simple matter, given that proceedings are broadcast on the internet. Presence by one witness during the testimony of another is really a matter that aVects credibility, rather than admissibility. An exception to this principle is made in the case of expert witnesses. It is important that they hear the testimony of other witnesses, especially the ‘rival’ expert, so that they may comment upon it. Similarly, an investigator ‘in charge of a party’s investigation’ is not precluded from testifying because that person has been present during the testimony of another.126 Once a witness begins to testify, there should be no further communication between parties and witnesses.127 According to an ICTY Trial Chamber, ‘[p]ermitting either Party to communicate with a witness after he or she has commenced his or her testimony may lead both witness and Party, albeit unwittingly, to discuss the content of the testimony already given and thereby to influence or aVect the witness’s further testimony in ways which are not consonant with the spirit of the Statute and Rules of the Tribunal’.128 In case one of the parties wants to communicate with a witness, this should be brought to the attention of the Victims and Witnesses Unit as well as to the opposing party. If the opposing party has ‘suYcient grounds’ to believe that such communication ‘might prejudice the integrity of a testimony or the credibility of the witness’, it may raise this before the Trial Chamber.129 A witness may not refuse to answer a question simply because it might incriminate the witness. The Rules authorise the Tribunal to compel a witness to deliver self-incriminating testimony, but say that such testimony shall not be used as evidence in a subsequent prosecution against the witness for any oVence other than false testimony.130 Exceptionally, a witness who was himself facing prosecution was allowed to testify with the assistance of counsel so as to safeguard his interests.131 Witnesses are entitled to protection pursuant to the statutes.132 Protection of vulnerable witnesses has prompted a range of solutions. The very first 126 127

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ICTY RPE, Rule 90(D). Jelisic´ (IT-95-10-T), Decision on Communication Between Parties and Witnesses, 11 December 1998. Kupresˇkic´ (IT-95-16-T), Decision on Communication Between the Parties and Their Witnesses, 21 September 1998. Jelisic´ (IT-95-10-T), Decision on Communication Between Parties and Witnesses, 11 December 1998. ICTY RPE, Rule 90(E); ICTR RPE, Rule 90(E); SCSL RPE, Rule 90(E). Ntagerura (ICTR-99-46-T), Decision on Ntagerura’s Extremely Urgent Motion for Order to Transfer an Accused from the Detention Facility in order to Testify for the Defence, Pursuant to Rules 73 and 54 of the Rules of Procedure and Evidence, 16 April 2002. ICTY Statute, art. 20(1); ICTR Statute, art. 19(1); SCSL Statute, art. 16(1).

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evidentiary ruling by the ICTY concerned an application by the Prosecutor for the admission of anonymous testimony by several witnesses. The Trial Chamber held that some witnesses could testify although their identities would remain unknown to the accused and his attorney. Challenging the application, defence counsel invoked authority from the European Court of Human Rights holding the use of anonymous witnesses to be contrary to article 6 of the European Convention on Human Rights. A majority of the Trial Chamber, with Judge Stephen dissenting, held that rulings of the European Court of Human Rights were meant to apply to ‘ordinary criminal’ jurisdictions. Explaining that the International Tribunal was adjudicating crimes considered so horrific as to warrant universal jurisdiction, the judges said it was ‘in certain respects, comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence’.133 The controversial decision attracted much criticism,134 and it is not widely known that the Prosecutor almost immediately abandoned the practice of using anonymous witnesses. Graham Blewitt, the ICTY’s Deputy Prosecutor, told Professor Michael Scharf that he felt ‘personally very uncomfortable’ with the practice.135 It is not uncommon for the identity of witnesses to be concealed from the public. Witnesses are often given pseudonyms as part of the indictment confirmation procedure, although their identity is subsequently revealed to the defendant in the context of the disclosure process.136 Sometimes they have testified from a remote witness room by way of closed circuit television, so that they do not have to see the accused.137 Witnesses have also testified behind screens. Occasionally, the televised image and voice are distorted so that witnesses are not recognisable to the general public. Some witnesses have been permanently relocated as part of witness protection programmes. Witnesses may testify in a trial from a remote location by video-link. Trial Chambers allowed this even before the Rules were amended to make this 133

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Tadic´ (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 28. Monroe Leigh, ‘The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused’, (1996) 90 American Journal of International Law 235; Natasha A. AVolder, ‘Tadic´, the Anonymous Witness and the Sources of International Procedural Law’, (1998) 19 Michigan Journal of International Law 445; Mercedeh Momeni, ‘Balancing the Procedural Rights of the Accused Against a Mandate to Protect Victims and Witnesses: An Examination of the Anonymity Rules of the International Criminal Tribunal for the Former Yugoslavia’, (1997) 41 Howard Law Journal 155. Michael P. Scharf, Balkan Justice: The Story behind the First International War Crimes Trial since Nuremberg, Durham, NC: Carolina Academic Press, 1997, pp. 25, 109. Musabyimana (ICTR 2001-62-T), Decision on Samuel Musabyimana’s Motion to Exclude Anonymous Prosecutorial Witness Statements and to Review the Decision on Confirmation of the Indictment, 9 September 2002. Third Annual Report of the ICTR, UN Doc. A/53/429 S/1998/857, para. 123.

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explicit. On application by one of the parties, the Trial Chamber may permit this ‘in the interests of justice’.138 In deciding whether or not to allow videolink testimony, the Tribunal will assess the importance of the testimony, the inability or unwillingness of the witness to attend, and whether a good reason has been adduced for the inability or unwillingness to attend.139 In Tadic´, the Trial Chamber allowed such testimony to the extent the testimony was suYciently important to make it unfair to proceed without it, and when the witness was unable or unwilling to come to The Hague. The defence produced aYdavit evidence indicating that the accused were unwilling to travel to The Hague for fear of being arrested.140 Medical reasons will also justify hearing a witness by video-link.141 Video-link testimony has been denied when a witness did not wish to testify in person ‘because of the disruption to her family and professional life in Europe, where she currently resides as a refugee, and because of the trauma of her flight from Rwanda in 1994’. An ICTR Trial Chamber noted that it had not been shown that the potential witness refused to attend in person ‘after being informed of her moral and legal obligation to do so, nor that all possible solutions to the diYculties occasioned by her testimony have been explored’.142 Trial Chambers have said that the evidentiary value of testimony provided by video-link is less than that of testimony given in the courtroom.143 The ICTY has even allowed an accused who was in the Balkans on provisional release to enter a plea of guilty by video-link, rather than return to the Detention Centre. In July 2004, the ICTY Appeals Chamber heard video-conference testimony in the Kvocˇka case.144

138 139

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ICTY RPE, Rule 71bis; ICTR RPE, Rule 71. Bagosora et al. (ICTR-98-41-T), Decision on Prosecution Request for Testimony of Witness BT via Video-Link, 8 October 2004; Bagosora et al. (ICTR-98-41-T), Decision on Testimony by Video-Conference, 20 December 2004, para. 4. Tadic´ (IT-94-1), Decision on the Defence Motions to Summon and Protect Defence Witnesses and on the Giving of Evidence via Video-link, 25 June 1996; Tadic´ (IT-94-1), Decision on the Defence Motion requesting Video-link for Defence Witness Jelena Gajic´, 17 October 1996. Brdanin et al. (IT-99-36-T), Order for Testimony via Video-Conference Link Pursuant to Rule 71bis, 9 September 2003; Milosˇevic´ (IT-02-54-T), Order on Prosecution Motion for the Testimony of Nojko Marinovic´ via Video-Conference Link, 19 February 2003; Krnojelac (IT-97-25-T), Order for Testimony via Video-Conference Link, 15 January 2001; Bagosora et al. (ICTR-98-41-T), Decision on Testimony by Video-Conference, 20 December 2004, para. 5. Bagosora et al. (ICTR-98-41-T), Decision on Ntabakuse Motion to Allow Witness DK 52 to Give Testimony by Video-Conference, 22 February 2005. Delalic´ et al. (IT-96-21-T), Decision on the Motion to Allow Witnesses K, L and M to give their Testimony by Means of Video-Link Conference, 28 May 1997, para. 18. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 248.

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Deposition Witnesses may also testify out of court by deposition. Taking of testimony by deposition may be ordered by the Trial Chamber, either proprio motu or at the request of one of the parties, ‘where it is in the interests of justice to do so’.145 The Trial Chamber appoints a Presiding OYcer who supervises the process. The deposition takes place as if it were testimony in court, with both examination-in-chief and cross-examination. Trial Chambers have used essentially the same test as in the case of video-link testimony. In a case before the ICTR, the Prosecutor applied to have the evidence of an elderly witness taken prior to the commencement of trial in Rwanda. The Chamber found that the circumstances were exceptional, but felt that the practical considerations of the Prosecutor’s proposal outweighed the benefits. It denied the application, finding that it would not be in the interests of justice.146 Another application by the Prosecutor for testimony by a witness in Rwanda was dismissed on the grounds that the witness’s anticipated testimony constituted new and incriminating eyewitness evidence, and therefore should be given before the Chamber, in the presence of the accused.147 When a judge of the Trial Chamber was temporarily indisposed for medical reasons, the parties agreed to use the deposition mechanism so that no time was wasted. The Trial Chamber concurred that these were ‘exceptional circumstances’, given the right of the accused to be tried without undue delay, and that therefore proceeding by deposition, as a temporary measure, was in the interests of justice.148 At the time, the RPE required that deposition be taken only in ‘exceptional circumstances’, but this requirement was removed in 2000 ‘in order to make deposition evidence more widely available as a tool for expediting proceedings’.149 The Appeals Chamber has said that deposition cannot be ordered in the absence of one of the judges unless the 145 146

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ICTY RPE, Rule 71; ICTR RPE, Rule 71; SCSL RPE, Rule 71. Bagosora et al. (ICTR-98-41-I), Decision on Prosecutor’s Motion for Deposition of Witness OW, 5 January 2002. Niyitegeka (ICTR-96-14-T), Decision on the Prosecutor’s Amended Extremely Urgent Motion for the Deposition of a Detained Witness Pursuant to Rule 71, 4 October 2001. Kupresˇkic´ et al. (IT-95-16-T), Decision on Prosecution and Defence Requests to Proceed by Deposition, 11 February 1999. Also: Blasˇkic´ (IT-95-14-T), Decision on the Prosecutor and Defence Motions to Proceed by Deposition, 19 February 1998; Kordic´ et al. (IT-9514/2-T), Decision on Prosecution Request to Proceed by Deposition, 13 April 1999; Kordic´ et al. (IT-95-14/2-T), Decision on Prosecution Request to Proceed by Deposition, 3 November 1999. Naletilic´ et al. (IT-98-34-PT), Decisions on Prosecution Amended Motion for Approval of Rule 94 ter Procedure (Formal Statements) and on Prosecutor’s Motion to take Depositions for Use at Trial (Rule 71), 10 November 2000. See: Fairlie, ‘Due Process Erosion’, at p. 66.

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parties consent.150 As with other forms of evidence taken out of court, ‘deposition evidence may be accorded less weight than evidence given directly in the courtroom’.151

AYdavit evidence Because of the strong preference of the tribunals for live courtroom testimony, there has been relatively little – at least compared to Nuremberg – reliance upon aYdavit testimony.152 An aYdavit is a form of testimony, but it is in writing and taken out of court, and is sometimes called a ‘sworn declaration’. The Rules explicitly accept that ‘[a] Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form’.153 In 1999, the ICTY judges adopted a Rule entitled ‘AYdavit Evidence’, which allowed the production of aYdavits provided that they were filed within a specific delay and that the other party did not object to their admission. If there were an objection, the witness would be called for crossexamination.154 When a Trial Chamber promptly admitted several aYdavits despite the failure to observe all of the procedural requirements, the Appeals Chamber intervened, noting that the ‘desire for expedition is . . . constrained by the need to protect the rights of an accused’.155 The Rule was promptly repealed.156

Evidence from another case and authoritative information Evidence given by a witness in one case may be admitted as proof in another case without the witness being required to attend in court, under Rule 92bis.157

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Kupresˇkic´ et al. (IT-95-16-AR73.3), Decision on Appeal by Dragan Papic´ Against Ruling to Proceed by Deposition, 15 July 1999. Naletilic´ et al. (IT-98-34-PT), Decisions on Prosecution Amended Motion for Approval of Rule 94ter Procedure (Formal Statements) and on Prosecutor’s Motion to take Depositions for Use at Trial (Rule 71), 10 November 2000. For a warning about the dangers of allowing aYdavit evidence too freely, see: Patricia M. Wald, ‘To ‘‘Establish Incredible Events by Credible Evidence’’: The Use of AYdavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, (2001) 42 Harvard International Law Journal 535. ICTY RPE, Rule 90(F); ICTR RPE, Rule 90. ICTY RPE, Rule 94ter (repealed). Kordic´ et al. (IT-95-14/2-AR73.6), Decision in the Appeals Chamber Regarding the Admission into Evidence of Seven AYdavits and one Formal Statement, 18 September 2000. Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 51. ICTY RPE, Rule 92bis; ICTR RPE, Rule 92bis. See: Sikirica et al. (IT-95-8-T), Decision on Prosecution’s Application to Admit Transcripts under Rule 92bis, 23 May 2001.

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This evidentiary provision exists ‘to facilitate the admission by way of written statement of peripheral or background evidence in order to expedite proceedings while protecting the rights of the accused under the Statute’.158 But in applying this, the ICTY Appeals Chamber has cautioned that ‘where the evidence is so pivotal to the Prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form’.159 In Krajisˇnik, the parties were instructed by the Chamber to undertake intensive eVorts to agree upon a certain number of facts in order to narrow down the number of witnesses. The negotiations were aimed at reducing the number of crime-base and expert witnesses to be called by the prosecution. Upon a positive assessment of the eVectiveness of the negotiations between the parties, the Trial Chamber granted a joint request for an adjournment of the trial. However, the defence subsequently withdrew from the negotiations and the Trial Chamber therefore reduced the number of Rule 92bis witnesses by way of an order and decided to resume the trial.160 SCSL Rule 92bis is somewhat diVerent from the equivalent Rule of the ICTY and ICTR. It was amended by the judges of the SCSL ‘in order to simplify this provision for a court operating in what was hoped would be a short time-span in the country where the crimes had been committed and where a Truth and Reconciliation Commission and other authoritative bodies were generating testimony and other information about the recently concluded hostilities’.161 The SCSL Rule allows the admission into evidence of ‘information’ in lieu of oral testimony, if the Trial Chamber is of the view that such information is ‘relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation’. The term ‘information’ has been described as ‘assertions of fact (but not opinion) made in documents or electronic communications’.162 It may include such documents as the Truth and Reconciliation Commission report, materials prepared by nongovernmental organisations,163 books by serious historians, and even

158 159

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Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 51. See Galic´ (IT-98-29-AR73.2), Decision on Interlocutory Appeal Concerning Rule 92bis (C), 7 June 2002. See also: Daryl A. Mundis, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, (2003) 1 Journal of International Criminal Justice 197, at p. 218. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, para. 106. Norman et al. (SCSL-04-14-AR73), Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, para. 26. 163 Ibid., para. 26. Ibid., paras. 45–46.

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newspaper reports, if they carry a byline and claim to be based upon eyewitness reports or interviews.164 This procedure is not the same as an application for judicial notice, however. The SCSL Appeals Chamber has pointed out that a party that fails at judicial notice may nevertheless avail of Rule 92 bis. ‘Information’ admitted under Rule 92bis can be contested, and will be weighed by the Trial Chamber as it would any other evidence.165

Hearsay evidence Hearsay has been defined by the ICTY Appeals Chamber as ‘the statement of a person made otherwise than in the proceedings in which it is tendered, but nevertheless being tendered in those proceedings in order to establish the truth of what that person says’.166 An example is when a witness testifies to what someone else told the witness: ‘And he told me that he saw . . .’ Hearsay evidence in general, and aYdavit evidence in particular, are therefore admissible before the tribunals.167 Such evidence is less authoritative than direct evidence, because the witness cannot personally attest to the subject matter of the testimony. This does not make it inherently unreliable, however. All depends upon the circumstances, and the credibility of the person whose testimony is being reported. Common-law jurisdictions have long resisted hearsay evidence. The rule derives from practice in jury trials, where experience has shown that lay jurors are likely to give such testimony undue weight. Jurists from inquisitorial systems are unfamiliar with the whole concept. They are accustomed to trials before professional judges, not lay jurors. Judges are supposed to be able to make the relevant distinctions, and to appreciate when hearsay evidence may deserve some degree of weight. But the term hearsay evidence can have a much broader connotation. It refers to any evidence that is not related by the witness who has personal knowledge of the act in question. For example, when testimony of a witness 164

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Norman et al. (SCSL-04-14-AR73), Separate Opinion of Justice Robertson, 16 May 2005, para. 13. Norman et al. (SCSL-04-14-AR73), Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, paras. 45–46. Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 14. Tadic´ (IT-94-1), Decision on the Defence Motion on Hearsay, 5 August 1996; Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, paras. 15 ff.; Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 286; Bagilishema (ICTR-95-1A-A), Judgment, 3 July 2002, para. 100; Rutaganda (ICTR-96-3A), Judgment, 26 May 2003, para. 149.

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who does not attend in court is produced in writing, by means of deposition, this too constitutes hearsay or ‘secondary’ evidence. There was much reliance upon hearsay at the Nuremberg and Tokyo trials.168 In Tadic´, an ICTY Trial Chamber noted that its evidentiary regime was an amalgam of civil and common-law features and did not strictly follow either jurisdiction: Accordingly, in deciding whether or not hearsay evidence that has been objected to will be excluded, the Trial Chamber will determine whether the proVered evidence is relevant and has probative value, focusing on its reliability . . . The Trial Chamber may be guided by, but not bound to, hearsay exceptions generally recognised by some national legal systems, as well as the truthfulness, voluntariness, and trustworthiness of the evidence, as appropriate.169

Expert evidence Expert witnesses testify to opinions rather than to facts. They are ‘to enlighten the Judges on specific issues of a technical nature, requiring special knowledge in a specific field’.170 They are normally allowed to testify on issues about which the judges themselves, based on their personal knowledge and experience, cannot be expected to reach an opinion alone. Experts have been admitted to testify before the tribunal about forensic issues, such as identification of bodies and the composition of mass graves,171 ballistics,172 handwriting,173 and on medical issues,174 such as the health of the accused, his or her fitness to stand trial, and the accused’s psychological profile.175 They have also testified about the history of the conflicts,176 levels of education in civilian 168 169

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172 173

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May and Wierda, ‘Trends in International Criminal Evidence’, at pp. 745–746. Tadic´ (IT-94-1), Decision on the Defence Motion on Hearsay, 5 August 1996; Tadic´ (IT94-1), Opinion and Judgment, 7 May 1997, para. 555. Simba (ICTR-01-76-I), Decision on Defence Motion to Disqualify Expert Witness, Alison des Forges, and to Exclude her Report, 14 July 2004, para. 6. Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 256–259; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 4. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 71. E.g., Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 142. See: Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 68: ‘while the Chamber may order the production of a sample of a witness’ handwriting for purposes of comparison against documentary evidence, it cannot order such a sample to be produced from the Accused against his or her will, since such an order would compel the Accused to testify against himself or herself ’. E.g., Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 20; Kunarac et al. (IT96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 326–334. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 515. Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 106; Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 8; Milosˇevic´ (IT-02-54-T),

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populations,177 composition of military units,178 demographic issues including ethnic content of specific geographic regions,179 the reliability of eyewitness identification evidence,180 reconciliation and accountability in postconflict societies,181 and the role of ideology and use of propaganda in setting the context for genocide.182 Production of expert testimony is subject to procedural considerations, including prior notice to the other party and submission of a written report. The RPE encourage the parties to admit issues such as the qualification of experts, and even the expert opinion itself.183 Because expert testimony consists of the opinion of an individual, it is best answered with a counterexpertise, rather than an attempt to deny its validity. It has been held that experts must not only be qualified but that they must also be impartial.184 In allowing expert testimony, the factors to consider are the professional competence of the expert, the methodologies used by the expert and the credibility of the findings made in light of these factors and other evidence accepted by the Trial Chamber.185 When the qualifications of an expert are contested, the tribunals conduct a preliminary hearing or voir dire in order to determine whether or not to admit the testimony. Only then may the witness actually present the report in the record and be examined on it. In one case, a former judge of the Rwandan Constitutional Court and member of the Conseil d’e´tat was denied recognition as an expert on constitutional law after he admitted that ‘membership of these special bodies is insuYcient to establish expertise in constitutional law’. An ICTR Trial Chamber noted that although he had studied constitutional law as part of his law degree, and had taught constitutional law at the National University of Rwanda as a

177 178

179

180 181 182

183 184

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Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 230; Akayesu (ICTR96-4-T), Judgment, 2 September 1998, para. 92. E.g., Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 34. E.g., Krstic´ (IT-98-33-T), Judgment, 2 August 2001, paras. 4, 12, 70; Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 69. E.g., Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 51; Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 236. E.g., Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 138. E.g., Plavsˇic´ (IT-00-39&40/1), Sentencing Judgment, 27 February 2003, para. 27. Milosˇevic´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 238. ICTY RPE, Rule 94bis; ICTR RPE, Rule 94bis; SCSL RPE, Rule 94bis. Akayesu (ICTR-96-4-T), Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 20; Blagojevic´ et al. (IT-0260-T), Decision on Prosecution’s Motions for Admission of Expert Statement, 7 November 2003; Galic´ (IT-98-29-T), Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philips, 3 July 2002, p. 2.

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visiting lecturer, he had not written or published in any recognised legal reviews and journals in this area.186

Documentary evidence Enormous quantities of documents have been produced in evidence before the tribunals. This is especially true for the ICTY, where material gradually became available as the various governments in the Balkan region increased their willingness to cooperate with the Prosecutor. At the ICTR and the SCSL, there is much less in the way of a written record of the events and of the crimes. Nothing, however, compares with the trials of the Nazis, who left meticulously detailed records of their criminal acts.187 Unless the parties consent, documents must be presented by a witness capable of identifying their origin and provenance. As one judge put it, ‘evidence, whether hearsay or not, must come in through a witness; the notion of a species of evidence that is self-propelling and has the power to get to the Chamber on its own steam is as alien to the Tribunal as it is to the conduct of criminal cases in most legal systems’.188 Although the witness attempting to produce a document need not establish authenticity or authorship or even the source of a document as a condition of admission, there must be a minimum of proof that would be suYcient to constitute prima facie indicia of reliability if the document so warrants.189 The Musema Trial Chamber noted that the authenticity of a document and of its contents was central to the establishment of the credibility and reliability of documentary evidence. It observed that in this context, factors to be considered include the form, contents and purported use of the document, including whether the document provided is an original or a copy (‘Originals will, as a general rule, have a higher probative value than copies’), whether, a document being a copy, it is in any way registered or enrolled with some institutional authority, whether the document is signed, sealed, certified, stamped or in any other way oYcially authorised by some authority or organisation, and whether or not the document has been duly executed, showing that it was written, produced or authorised by the person or party by whom it purports to be written, produced or authorised.190

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Bizimungu et al. (ICTR-99-50-T), Oral Decision on Qualification of Prosecution Expert Jean Rubaduka, 24 March 2005. May and Wierda, ‘Trends in International Criminal Evidence’, at p. 748. Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 February 1999, para. 24. Brdanin et al. (IT-99-36-PT), Order on the Standards Governing the Admission of Evidence, 15 February 2002. Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 64–67.

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New evidence on appeal and review An appeal is not a trial de novo, and therefore in principle no new evidence should be admitted. The Appeals Chamber bases itself upon the record of the trial at first instance in assessing whether or not there were any errors of law or errors of fact in the appreciation of the evidence. Exceptionally, evidence may be admitted on appeal if the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, and if it could have been a decisive factor in reaching the decision at trial.191 New evidence may also be produced in review proceedings, where a new fact is discovered which was not known at the time of the proceedings before the Trial Chamber or the Appeals Chamber, and that could not have been discovered through the exercise of due diligence.192 The distinction between the two lies in the fact that new evidence on appeal concerns additional evidence of a fact discussed at trial, whereas new evidence on review deals with the discovery of new facts not known at that stage.193 As the ICTY Appeals Chamber noted, in Kupresˇkic´, ‘while the right to a full appeal process is of the utmost importance, this right must be carefully balanced against the equally important requirement that an appeal be dealt with expeditiously; it is patently contrary to the interests of justice for the appeals process to become overly-long and protracted or to deteriorate into a second trial in which the old strategies and omissions can be revisited’. The Appeals Chamber said that only the gravest of circumstances would ‘justify further motions to admit additional evidence’ and that new facts would not be admitted ‘unless such motions make out a strong case that the ‘‘interests of justice’’ require admission’. It insisted that Rule 115 ‘deals with the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial’ and that ‘[t]he Rule does not permit a party to simply request that a particular person be summoned to give evidence at the appellate stage’.194 To succeed in admitting new evidence on appeal, a party must demonstrate the exercise of due diligence in attempting to secure evidence for presentation 191

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ICTY RPE, Rule 115; ICTR RPE, Rule 115; SCSL RPE, Rule 115. The initial version of the Rules used a much vaguer test for admissibility: ‘The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require.’ The older provision remains applicable to trials that took place before the amendment: Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, Annex A, para. 11. ICTY RPE, Rule 119; ICTR RPE, Rule 119; SCSL RPE, Rule 120. Tadic´ (IT-94-1-A), Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998. Kupresˇkic´ et al. (IT-95-16-A), Decision on the Motions of Drago Josipovic´, Zoran Kupresˇkic´ and Vlatko Kupresˇkic´ to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be taken pursuant to Rule 94(B), 29 May 2001.

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at trial, using all appropriate measures of protection and compulsion legally available. A professional decision by counsel not to present available evidence is, in principle, no proof of the lack of due diligence.195 The party seeking to produce new evidence has the burden of proof to establish its unavailability at trial.196 New evidence took on quite dramatic proportions in the Blasˇkic´ appeal. Subsequent to conviction of Croatian General Blasˇkic´, the Government of Croatia made available an enormous volume of documentary material. Some 108 items were admitted as additional evidence and rebuttal material.197 The Appeals Chamber concluded that the Trial Chamber had committed reviewable error in its assessment of the facts, but acknowledged that the additional evidence admitted on appeal confirmed this.198 Should new evidence be admitted on appeal when all it may do is raise questions about the credibility of an important witness? This is a prospect that the Appeals Chamber has appeared to entertain, although in the case at issue it decided, for other reasons, not to allow the new evidence. One of the witnesses at trial had also made a statement to the Rwandan authorities that allegedly contradicted his testimony before the Trial Chamber.199 But by its very nature, proof that a person has made contradictory statements in court and out of court does not prove that the person was not telling the truth in court. Allowing new evidence to be admitted when all it does is impact upon credibility is a bottomless pit.

Special rules of evidence Corroboration There is no rule requiring corroboration of evidence in order for a fact to be considered proven. In early judgments, defendants invoked the Latin maxim unus testis, nullus testis (‘one witness is no witness’), but the argument has been consistently rejected.200 According to Akayesu, ‘the Chamber can rule

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196 Ibid. Ibid. Blasˇkic´ (IT-95-14-A), Decision on Evidence, 31 October 2003. Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, paras. 335, 348. Kajelijeli (ICTR-98-44A-A), Decision on Defence Motion for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 28 October 2004, para. 14. Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 92; Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 29; Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 36–38; Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, paras. 154, 187, 320, 322; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 506; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 62–63; Tadic´ (IT-941-A), Judgment, 15 July 1999, para. 65; Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment,

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on the basis of a single testimony provided such testimony is, in its opinion, relevant and credible’.201 Defendants had invoked Rule 96(i), which specified that no corroboration is required in cases of sexual assault, arguing that this was an exception to the general rule. But an ICTY Trial Chamber noted that Rule 96(i) had been enacted in order to ensure that evidence from victims of sexual assault was given the same reliability as that of other victims: ‘Thus what the Sub-rule certainly does not do is to justify any inference that in cases of crimes, other than sexual assault, corroboration is required. The proper inference is, in fact, directly to the contrary.’202 There is one exception to the general principle, requiring corroboration of the testimony of an unsworn child.203 This does not mean that corroboration is not desirable, and ‘[i]f it is not corroborated by other evidence, the testimony of a single witness must be treated with great caution’.204 According to an ICTY Trial Chamber: In some cases, only one witness has given evidence of an incident with which the Accused is charged or otherwise involving the Accused. The Appeals Chamber has held that the testimony of a single witness on a material fact does not, as a matter of law, require corroboration. Still, in such a situation, the Trial Chamber has scrutinised the evidence of such witnesses with circumspection and in some instances decided not to rely on such evidence.205

In refusing to admit a statement of a deceased person, the Appeals Chamber considered it relevant that there was no corroboration of the evidence.206

National security information and similar concerns Given the nature of the prosecutions before the tribunals, inevitably there will be objections from States to the production of evidence on the grounds that its disclosure may prejudice national security. The exception is well known in domestic prosecutions in cases dealing with espionage, release of national secrets and similar matters. Reflecting these concerns, the Rome Statute of

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23 October 2001, para. 33; Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 90. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 132–136. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 536. ICTY RPE, Rule 90(B); ICTR RPE, Rule 90(B). The Rule was deleted from the SCSL RPE. Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 15. Also: Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999. Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 27 (references omitted). Kordic´ et al. (IT-95-14/2-AR73.5), Decision on Appeal regarding Statement of a Deceased Witness, 21 July 2001.

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the International Criminal Court provides States with a large degree of protection from attempts to obtain evidence that might compromise national security.207 In fact, article 72 of the Rome Statute was strongly influenced by nervousness among many States following a 1997 ruling of the Appeals Chamber of the ICTY that in eVect overrode the objections of Croatia on grounds of national security when the Prosecutor applied to a Trial Chamber for an order to produce documents.208 On 15 January 1997, in preparation for the trial of Croatian General Blasˇkic´, the ICTY Prosecutor obtained issuance of a ‘subpoena duces tecum’ from Judge Gabrielle Kirk McDonald to the Republic of Croatia and its Defence Minister, Gojko Susak. Croatia argued that the documents concerned her national security, and said that the International Tribunal was without the power to judge or determine Croatia’s national security claims. The Appeals Chamber dismissed the challenge: [A] plain reading of Article 29 of the Statute makes it clear that it does not envisage any exception to the obligation of States to comply with requests and orders of a Trial Chamber. Whenever the Statute intends to place a limitation on the International Tribunal’s powers, it does so explicitly, as demonstrated by Article 21, paragraph 4 (g), which bars the International Tribunal from ‘compelling’ an accused ‘to testify against himself or to confess guilt’. It follows that it would be unwarranted to read into Article 29 limitations or restrictions on the powers of the International Tribunal not expressly envisaged either in Article 29 or in other provisions of the Statute.209

The Appeals Chamber continued: ‘to allow national security considerations to prevent the International Tribunal from obtaining documents that might prove of decisive importance to the conduct of trials would be tantamount to undermining the very essence of the International Tribunal’s functions’.210 The Appeals Chamber observed that some States – it gave Australia and New Zealand as examples – had authorised national authorities to decline to comply with requests of the International Tribunal if such requests would prejudice the ‘sovereignty, security or national interests’ of the State. Such legislation, said the judges, did ‘not seem to be fully in keeping with the Statute’.211

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Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 72. See: William A. Schabas, ‘National Security Interests and the Rights of the Accused’, in H. Roggemann and P. Sarcevic, eds., National Security and International Criminal Justice, The Hague: Kluwer Law International, 2002, pp. 105–113. Blasˇkic´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997. 210 211 Ibid., para. 63. Ibid., para. 64. Ibid., para. 66.

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Nevertheless, the Appeals Chamber said it was not unmindful of the national security concerns of States, and opined that an in camera, ex parte procedure before a single judge could be held so that the judges could then determine the legitimacy of such objections from a State. It even acknowledged the existence of ‘an exception case’ where a State, acting bona fide, might consider one or two particular documents to be so delicate from the national security point of view, while at the same time of scant relevance to the trial proceedings, that it preferred not to submit such documents.212 Because of their exceptional nature, the tribunals will be rather strict in such cases, requiring that the party applying for the order identify specific documents and not broad categories. The relevance of such documents to the trial must be explained. In addition, the application should ‘not be unduly onerous’ and the State is entitled to suYcient time for compliance.213 Moreover, as a matter of ‘sound policy’, a party must first seek the voluntary assistance of States before recourse to the mandatory compliance powers.214 It is not entirely clear from the decision whether a State that succeeds in demonstrating that release of a document might seriously prejudice its national security interests is entitled not to comply with an order to produce the relevant documents. The judgment does, of course, state on several occasions that there is no ‘national security exception’ to the production of evidence. But what, then, is the purpose of a State attempting to demonstrate the validity of such claims? Some years after Blasˇkic´, the RPE were amended to make explicit provision for the case of national security information. Rule 54bis declares that a State may, within fifteen days of service of an order for production of documents, apply by notice to the judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests. This seems to suggest that national security interests are a valid reason to have an order to produce documents set aside.215 One ICTY Trial Chamber has subsequently observed, ‘States have legitimate national security concerns which international tribunals must address. Those concerns do not only cover national security, but also sensitive or confidential information in need of protection on other grounds, e.g. security of an individual; protection of sources of information; or to ensure eVectiveness of ongoing operations or not to jeopardise them.’216

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Ibid., para. 68. Krstic´ (IT-98-33-PT), Binding Order to the Republika Srpska for the Production of Documents, 12 March 1999. Ibid. Richard May and Marieke Wierda, International Criminal Evidence, Ardsley, NY: Transnational Publishers, 2002, pp. 60–61. Milosˇevic´ (IT-02-54-T), Public Version of the Confidential Decision on the Prosecutor’s Motion to Grant Specific Protection Pursuant to Rule 70, 25 July 2002.

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Subsequent to the Blasˇkic´ Appeals Chamber decision, binding orders were issued to Croatia217 and Bosnia and Herzegovina218 for disclosure of specific documents. In response to the request, Croatia argued it could not produce certain categories of evidence for reasons of national security, and proposed that a duly authorised government oYcial appear to explain its concerns, a proposal that the Trial Chamber accepted.219 After, in the words of the Trial Chamber, ‘many procedural episodes’, the Croatian oYcial testified about the government’s concerns. This made it clear that Croatia had only transmitted a very limited number of documents to the Tribunal, and that it had in no manner responded properly to the Prosecutor’s requests.220

Judicial notice Relying on a precedent applicable at the Nuremberg Tribunal,221 the ICTY RPE state that the Trial Chambers ‘shall not require proof of facts of common knowledge but shall take judicial notice thereof ’.222 The ICTY Rules were subsequently amended in July 1998 to allow the Tribunal to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in current proceedings.223 Even this reform was too modest. The 1999 expert report urged greater use of judicial notice, so as to reduce or eliminate the need for identical repetitive testimony and exhibits in successive cases.224

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Blasˇkic´ (IT-95-14-T), Order, 30 January 1998; Blasˇkic´ (IT-95-14-T), Order, 21 July 1998. Blasˇkic´ (IT-95-14-T), Order, 29 April 1998; Blasˇkic´ (IT-95-14-T), Order for the Production of Documents Used to Prepare for Testimony, 22 April 1999, para. 45. Blasˇkic´ (IT-95-14-T), Order for a Witness to Appear, 5 November 1998. Also: Blasˇkic´ (IT-95-14-T), Second Additional Order for a Witness to Appear, 12 March 1999. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 21: ‘The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of oYcial governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and the records and findings of military or other Tribunals of any of the United Nations.’ See: Norman et al. (SCSL-04-14-AR73), Separate Opinion of Justice Robertson, 16 May 2005, para. 6. ICTY RPE, Rule 94(A); ICTR RPE, Rule 94(A). On judicial notice, see: James G. Stewart, ‘Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent’, (2003) 3 International Criminal Law Review 245. ICTY RPE, Rule 94(B) (UN Doc. IT/32/Rev.13); ICTR RPE, Rule 94(B). ‘Report of the Expert Group to Conduct a Review of the EVective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda’, UN Doc. A/54/634, para. 85.

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‘Facts of common knowledge’ have been interpreted as ‘those facts that are not subject to reasonable dispute, including common or universally known facts, such as general facts of history, generally known geographical facts and the law of nature’. According to an ICTR Trial Chamber, in Semanza, they are facts ‘so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary’.225 Judicial notice can only be taken of ‘facts not subject to reasonable dispute’.226 Taking judicial notice of facts can help to expedite proceedings, avoiding time-consuming presentation of evidence that is not really very controversial, if at all. Admitting previously adjudicated facts may also promote a degree of consistency in terms of the factual underpinning of the cases before the tribunals. But as Judge Robertson of the SCSL has pointed out: Expedition and economy may be the result of judicial notice, but the purpose of the Rule is rather to promote a fair trial for all parties both by relieving them of the burden of proving facts that have been convincingly established elsewhere and by enabling the tribunal to take into account in its decision the full panoply of relevant facts currently available in the world. Judicial notice equips courts to make just decisions and enables them to avoid the rebuke and ridicule that would be heaped upon them were they to turn a blind eye to history or science or to embark upon fatuous and unnecessary enquiries.227

To the extent that the tribunals create an historical record of the conflict, it is desirable that they arrive at relatively similar conclusions.228 In refusing to take judicial notice of certain facts, Trial Chambers have noted not only that 225

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Semanza (ICTR-97-20), Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Fact Pursuant to Rules 94 and 54, 3 November 2000, para. 25. Also: Norman et al. (SCSL-04-14-PT), Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 24 June 2004; Sesay et al. (SCSL-04-15-PT), Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 24 June 2004. Simic´ et al. (IT-95-9-PT), Decision on Pre-trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999; Nsabimana et al. (ICTR-98-42-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002; Kajelijeli (ICTR-98-44A-T), Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 16 April 2002, para. 17. Norman et al. (SCSL-04-14-AR73), Separate Opinion of Judge Robertson, 16 May 2005, para. 15. Semanza (ICTR-97-20-I), Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000, para. 20; Bizimungu et al. (ICTR-99-50-T), Decision on Prosper Mugiraneza’s First Motion for Judicial Notice Pursuant to Rule 94(B), 10 December 2004, para. 6; Norman et al. (SCSL-04-14-AR73), Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, para. 21.

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this places a heavy burden on the accused in preparation and conduct of the case, but also that attempts to rebut the facts subject to judicial notice may consume a great deal of time, something which is totally contrary to the purpose of the exercise.229 The tribunals have taken knowledge of such ‘facts of common knowledge’ as Bosnia and Herzegovina’s proclamation of independence from the Socialist Federal Republic of Yugoslavia on 6 March 1992, and the recognition of the new State by the European Community on 6 April 1992 and by the United States on 7 April 1992.230 They have also acknowledged resolutions of the United Nations Security Council and General Assembly, the Final Report of the United Nations Commission of Experts, reports of the United Nations Secretary-General, and declarations and statements from the European Community and the Conference on Security and Cooperation in Europe.231 But the SCSL Appeals Chamber has helpfully noted that judicial notice cannot be taken of the contents of Security Council Resolutions, ‘because these resolutions contain both legal findings and are subject to more than reasonable dispute’.232 ICTR Trial Chambers have accepted that between 6 April 1994 and 17 July 1994, citizens native to Rwanda were identified according to the ethnic classifications Tutsi, Hutu and Twa,233 and that on 6 April 1994, the President of the Republic of Rwanda, Juve´nal Habyarimana, was killed when his plane was shot down on its approach to Kigali airport.234 However, they have refused to consider as common knowledge that, from the morning of 7 April 1994, groups of military personnel commenced the systematic assassinations of a large number of individuals, including the then Prime Minister, Agathe Uwilingiyimana, and the Belgian UNAMIR soldiers sent to protect the Prime Minister.235 The SCSL has accepted the existence of an armed conflict in Sierra Leone from March 1991 until January 2002.236 The 229

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Milosˇevic´ (IT-02-54-T), Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 16 December 2003. Simic´ et al. (IT-95-9-PT), Decision on Pre-trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 90. Norman et al. (SCSL-04-14-AR73), Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, para. 47; Norman et al. (SCSL-04-14-AR73), Separate Opinion of Judge Robertson, 16 May 2005, para. 28. Kajelijeli (ICTR-98-44A-T), Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 16 April 2002. Nyiramasuhoko et al. (ICTR-97-21-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002, para. 105. Ibid., para. 106. Norman et al. (SCSL-04-14-PT), Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 2 June 2004, para. 32; Norman et al. (SCSL-04-14-AR73),

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tribunals have refused to take judicial notice of the nature of the armed conflict, i.e., international or non-international, as this is a legal consequence inferred from facts rather than a fact of common knowledge itself.237 Similarly, they have declined to take judicial notice of the commission of genocide in Rwanda: ‘[T]he question is so fundamental, that formal proofs should be submitted bearing out the existence of this jurisdictional elemental crime.’238 More generally, the judicial notice provisions should not be used to resolve disputes that are essentially about questions of law, such as the existence of a legal duty.239 Facts adjudicated in other proceedings are not necessarily ‘facts of common knowledge’, and their admission in a subsequent trial is discretionary.240 Many judges have indicated a large degree of discomfort with the concept, and the provision allowing this has received a relatively restrictive interpretation.241 Judge Patricia Wald has described the judicial notice provisions allowing admission of adjudicated facts from previous trials to be ‘highly ambiguous’, and a source of considerable controversy among the judges themselves. ‘The Prosecution urges a very broad reading that would admit relevant facts found in one case, into a diVerent case, even though the defendants are not the same’, she has written. ‘Plainly, to accept as fact any matter already adjudicated would shorten trials – a desirable goal – but it also raises serious questions about fairness to the second set of defendants who were not before the Court in the first trial.’242

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Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, para. 40. Simic´ et al. (IT-95-9-PT), Decision on Pre-trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999; Nsabimana et al. (ICTR-98-42-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002; Kajelijeli (ICTR-98-44A-T), Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 16 April 2002, para. 17. Semanza (ICTR-97-20-I), Decision on the Prosecutor’s Motion for Judicial Knowledge and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000, para. 36. Norman et al. (SCSL-04-14-AR73), Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, para. 41. Ntakirutimana et al. (ICTR-96-10-T and ICTR-96-17-T), Decision on the Prosecutor’s Motion for Judicial Notice of Adjudicated Facts, 22 November 2001. Ibid.; Kajelijeli (ICTR-98-44A-T), Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 16 April 2002; Prosecutor v. Nyiramasuhuko (ICTR-98-42-T), Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002; Nyitigeka (ICTR-96-14-T), Decision on the Prosecutor’s Motion for Judicial Notice of Facts (Rule 94 of the Rules of Procedure and Evidence), 4 September 2002. Wald, ‘The ICTY Comes of Age’, at p. 111.

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Judicial notice may not be taken under this provision with respect to prior proceedings still under appeal, or of judgments based on guilty pleas, or of admissions made by an accused.243 A blanket reference to adjudicated facts set out in specific paragraphs of a judgment will not be entertained, and parties applying under Rule 94(B) must identify with precision the facts whose recognition they seek to obtain.244 Rule 94(B) applies only to judgments of the Tribunal itself, and cannot be extended to facts adjudicated by another tribunal, such as a national court.245 Where the parties agree to the admission of such facts, Trial Chambers have opted to allow the evidence pursuant to Rule 65ter(H) rather than Rule 94(B).246 There is some controversy about the legal consequences of judicial notice. Some judgments suggest that it creates a well-founded presumption that the fact in question is accurate, and that it does not have to be proven again at trial, although subject to that presumption it may still be challenged at that trial.247 Judge Hunt disagreed with this proposition, saying that it was inappropriate to impose a rebuttable presumption in favour of the Prosecutor. This necessarily placed a burden of proof upon the accused, something that is contrary to the presumption of innocence.248 Judge Shahabuddeen disagreed, noting that a distinction should be made between facilitating proof and dispensing with proof: It is not said that the accused must prove his innocence; the position still is that the prosecution must prove guilt. All that the law does is that it facilitates proof by allowing a party to adduce required evidence in a certain way. What is the value of that evidence is then a matter for the parties in the ordinary way. In establishing the value of the evidence – including evidence given by judicial notice being taken of adjudicated facts – the accused is entitled to a right of rebuttal.249 243

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Kupresˇkic´ et al. (IT-95-16-A), Decision on the Motions of Drago Josipovic´, Zoran Kupresˇkic´ and Vlatko Kupresˇkic´ to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be taken pursuant to Rule 94(B), 29 May 2001. Bizimungu et al. (ICTR-99-50-T), Decision on Prosper Mugiraneza’s First Motion for Judicial Notice Pursuant to Rule 94(B), 10 December 2004. Bizimungu et al. (ICTR-99-50-T), Decision on Je´roˆme-Cle´ment Bicumumpaka’s Motion for Judicial Notice of a Rwandan Judgment of 8 December 2000 and in the Alternative for an order to Disclose Exculpatory Evidence, 15 December 2004. Blagojevic´ et al. (IT-02-60-T), Judgment, 17 January 2005, para. 28. Milosˇevic´ (IT-02-54-AR73.5), Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003; Krajisnik (IT-00-39 and 40), Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Admission of Written Statements of Witnesses Pursuant to Rule 92bis, 28 February 2003, para. 15. Milosˇevic´ (IT-02-54-AR73.5), Dissenting Opinion of Judge David Hunt, 28 October 2003. Milosˇevic´ (IT-02-54-AR73.5), Separate Opinion of Judge Shahabuddeen Appended to the Appeals Chamber’s Decision dated 28 October 2003 on the Prosecution’s Interlocutory

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The SCSL Appeals Chamber has taken the position that once judicial notice has been taken of a fact, the evidentiary inquiry is concluded and the fact cannot be contested.250 Judge Robertson explained that facts judicially noticed must be ‘invincible’, because otherwise, ‘the doctrine would serve little purpose’.251 Because of the requirement that the facts not be controversial, the provision seems to amount to a mechanism by which parties may make admissions. Facts recounted in the Tadic´ trial judgment concerned the historical, geographical, military and political context of the Yugoslavia conflict, especially in the municipality of Prijedor, and which led to the establishment of the camps at Omarska, Trnopolje and Keraterm.252 In ruling on judicial notice, the Kvocˇka Trial Chamber determined that ‘at the times and places alleged in the Amended Indictment’ there was ‘a widespread and systematic attack against notably the Muslim and Croat civilian population; and that there was a nexus between this armed conflict and the widespread and systematic attack on the civilian population and the existence of the Omarska, Keraterm, and Trnopolje camps and the mistreatment of the prisoners therein’.253 According to the ICTY Appeals Chamber, ‘a vague and generalised request to take notice of an entire judgement is insuYcient to invoke Rule 94(B)’. It added that ‘[a] request must specifically point out the paragraph(s) or parts of the judgment of which it wishes judicial notice to be taken, and refer to facts, as found by the Trial Chamber. Equally . . . an entire judgment may not be the object of judicial notice.’254

Privileges and immunities Communications between lawyer and client are considered privileged, and are not subject to disclosure at trial, unless the client consents to such disclosure or has voluntarily disclosed the content of the communication to a third party who then relates the information.255 An ICTY Trial Chamber

250

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252

253 254

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Appeal against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003. Norman et al. (SCSL-04-14-AR73), Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, para. 32. Norman et al. (SCSL-04-14-AR73), Separate Opinion of Justice Robertson, 16 May 2005, para. 9. Kvocˇka et al. (IT-98-30/1-T), Decision on Judicial Notice, 8 June 2000; Kvocˇka et al. (IT98-30/1-T), Judgment, 2 November 2001, para. 790. Kvocˇka et al. (IT-98-30/1-T), Decision on Judicial Notice, 8 June 2000. Kupresˇkic´ et al. (IT-95-16-A), Decision on the Motions of Drago Josipovic´, Zoran Kupresˇkic´ and Vlatko Kupresˇkic´ to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be taken pursuant to Rule 94(B), 29 May 2001. ICTY RPE, Rule 97; ICTR RPE, Rule 97; SCSL RPE, Rule 97.

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has defined lawyer–client privilege as ‘a rule of evidence, which provides that confidential communications between legal practitioner and client made for the sole purpose of the client obtaining, or the legal practitioner giving, legal advice or for use in existing or contemplated litigation, cannot be given in evidence, nor disclosed by the client or by the legal practitioner, without the consent of the client’. The privilege belongs to the client, not the legal adviser. The Trial Chamber explained that ‘legal professional privilege extends only to confidential communications and documents that come into existence or are generated for the purpose of giving or getting legal advice or in regard to prospective or pending litigation’.256 The ICTY Appeals Chamber has held that lawyer–client privilege ‘does not cover prior Defence witness statements’ and ‘a Trial Chamber may order, depending on the circumstances of the case at hand, the disclosure of Defence witness statements after examination-in-chief of the witness’.257 But the Trial Chamber in the Milosˇevic´ case recognised that conversation between the accused and his ‘legal associates’ was privileged, even if he insisted upon acting in his own defence without being represented by counsel.258 When another ICTY Trial Chamber imposed ‘standby counsel’ on an accused, it declared that communications between the accused and standby counsel, as well as with investigators, were privileged.259 No reference was made to the issue of privilege when counsel was actually assigned to Milosˇevic´, but this was probably judged unnecessary given that the general rule would apply.260 In a case concerning alleged misconduct of defence counsel, both counsel and the accused consented to the disclosure of certain billing records that had been submitted to the Registry. However, the Registry objected, arguing that its archives were inviolable and that this immunity could only be waived 256

257

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Brdanin et al. (IT-99-36-PT), Decision on Motion for Production of Documents – Dzonlic Testimony of 11 March 2002, 9 April 2002. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, paras. 325–326. But see the individual opinions that accompany the judgment: Declaration of Judge Nieto-Navia and Separate Opinion of Judge Shahabuddeen. Milosˇevic´ (IT-02-54-T), Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003. Three ‘legal associates’ were recognised on this basis, all of them lawyers: Zdenko Tomanovic´, Dragoslav Ognjanovic´ and Branko Rakic´. Sˇesˇelj (IT-03-67-PT), Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Sˇesˇelj with his Defence, 9 May 2003. Investigators are considered part of the ‘defence team’: Norman et al. (SCSL-04-14-T), Decision on Joint Motion by Sam Hinga Norman, Moinina Fofana and Allieu Kondewa Seeking Permission for Defence Investigators to Sit in Court During Closed Sessions, 28 February 2005. Milosˇevic´ (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22 September 2004; Milosˇevic´ (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004. Also: Milosˇevic´ (IT-02-54-T), Order on the Modalities to be Followed by Court Assigned Counsel, 3 September 2004.

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in special circumstances. The Trial Chamber rejected the claim, stating that lack of access to information or material in the possession of the Registry would frustrate the International Tribunal in the discharge of its fundamental purpose.261 In addition to lawyer–client privilege, the RPE recognise a privilege in ‘information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence’. Such information as well as its origin cannot be disclosed by the Prosecutor without the consent of the person or entity who provided the information.262 Similarly, notes taken by the prosecution in preparation of a plea agreement are privileged, because they are internal documents made in connection with the preparation of the case.263 The RPE specify that ‘reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure’,264 but presumably the principle also applies to their compellability at trial. Some non-codified privileges have been recognised in the cases. In an ex parte decision,265 an ICTY Trial Chamber determined that the International Committee of the Red Cross was entitled to invoke privilege with respect to information it had collected in the course of its work. A former employee of the ICRC could not testify unless the organisation were to waive its privilege.266 Similarly, the Appeals Chamber recognised a partial or qualified privilege with respect to war correspondents, in recognition of their important role during armed conflict. It said that evidence from a war correspondent may only be compelled if it is directly relevant and cannot be obtained elsewhere.267 261 262 263

264 265

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Simic´ et al. (IT-95-9-R77), Order for Limited Access to Registry Files, 1 November 1999. ICTY RPE, Rule 70(B); ICTR RPE, Rule 70(B); SCSL RPE, Rule 70(B). Blagojevic´ et al. (IT-02-60-T), Decision on Vidoje Blagojevic´’s Expedited Motion to Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused Nikolic´ and Request for an Expedited Open Session Hearing, 13 June 2003. ICTY RPE, Rule 70(A); ICTR RPE, Rule 70(A); SCSL RPE, Rule 70(A). The decision can be considered to have been subsequently endorsed by the Appeals Chamber: Brdanin et al. (IT-99-36-AR73.9), Decision on Interlocutory Appeal, 11 December 2002, para. 32. Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999. The principle was subsequently endorsed by the Assembly of States Parties of the International Criminal Court. See ‘Rules of Procedure and Evidence’, ICC-ASP/1/3, p. 10, Rule 71. See also: Ste´phane Jeannet, ‘Non-disclosure of Evidence before International Criminal Tribunals: Recent Development Regarding the International Committee of the Red Cross’, (2001) 50 International and Comparative Law Quarterly 643. Brdanin et al. (IT-99-36-A), Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, 15 December 2002.

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But no methodology for identifying other privileges has been determined. The International Criminal Court RPE establish a three-part test in determining whether to recognise privileges other than the lawyer–client privilege and the ICRC privilege, which are defined in the text. First, privileged communications must be made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure. Second, confidentiality must be essential to the nature and type of relationship between the person and the confidant. Third, recognition of the privilege should further the objectives of the Statute and the Rules.268 On this basis, privilege between patient and physician or therapist might be recognised,269 although it seems more doubtful that the Court would uphold a privilege between priest and confessor. Judicial deliberations and observations in relation to matters upon which the judges of the Tribunal are required to adjudicate may not be the subject of compelled evidence before the Tribunal. The Appeals Chamber noted that those persons cannot be subpoenaed to testify as witnesses in the matter at issue since their work, which is integral to the operation of the Tribunal, must be protected by confidentiality.270

Evidence in cases of sexual assault Special provisions appear in the RPE concerning evidence in cases of sexual assault.271 They correspond to progressive developments in the criminal law in certain jurisdictions, and are intended to counteract a variety of abuses and stereotypes that have long hampered the eVective prosecution of such crimes.272 They deal with three issues that arise particularly in the case of 268 269

270

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‘Rules of Procedure and Evidence’, ICC-ASP/1/3, p. 10, Rule 73. See the critical comments of Kelly Dawn Askin with respect to the Trial Chamber’s order to produce medical records of a rape victim in the Furundzˇija case. Kelly Dawn Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’, (1999) 93 American Journal of International Law 97, at pp. 112–113. Delalic´ et al. (IT-96-21-A), Decision on Motion to Preserve and Provide Evidence, 22 April 1999. ICTY RPE, Rule 96; ICTR RPE, Rule 96; SCSL RPE, Rule 96. The provisions in the ICTY and ICTR Rules are very similar. The SCSL judges made substantial modifications to the existing models in adopting a dramatically revised Rule 96. The ICTY and ICTR text begins with the words ‘In cases of sexual assault . . .’ , whereas SCSL Rule 96 begins: ‘In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles . . .’ The SCSL RPE provision follows Rule 70 of the ICC RPE. It is not yet evident whether the SCSL will be less rigorous in applying Rule 96 as a result. Joseph L. Falvey, Jr, ‘United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’, (1995) 19 Fordham International Law Journal 475, at pp. 521–527; Christin B. Coan, ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the

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sexual assault prosecutions: corroboration of the victim’s testimony, the defence of consent, and evidence of prior sexual conduct. Under the common law, judges often instructed juries that it was unwise to convict for rape on the basis of the uncorroborated testimony of the victim.273 This reflected archaic stereotypes about sexual assault, and has been largely abandoned in modern practice, often as a result of statutory provisions prohibiting judges from even making such suggestions in their charge to the jury. Before the international tribunals, no corroboration of a victim’s testimony is required in cases of sexual assault.274 In any case, it is well established in the case law of the tribunals that corroboration is not required, as a general rule.275 Kelly Askin has observed that ‘during wartime situations, it is extremely unlikely that corroborative evidence, such as semen, blood, and other physical or medical evidence, will be available as supporting evidence’.276 In Tadic´, an ICTY Trial Chamber said the provision ‘accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something which had long been denied to victims of sexual assault in common law’.277 The ICTY and ICTR Rules also establish that consent shall not be allowed as a defence in a case of sexual assault if the victim has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear.278 The

273

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276 277

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International Criminal Tribunal for the Former Yugoslavia’, (2000) 26 North Carolina Journal of International Law and Commercial Regulation 183, at pp. 213–217; Daniel D. Ntanda Nsereko, ‘Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’, (1994) 5 Criminal Law Forum 507. Richard J. Goldstone, ‘Prosecuting Rape as a War Crime’, (2002) 34 Case Western Reserve Journal of International Law 277, at pp. 283–284. ICTY RPE, Rule 96(i); ICTR RPE, Rule 96(i). SCSL Rule 96 is silent on this subject, perhaps because the judges realised that if there was no requirement of corroboration generally, there was no need to insert a special provision. See above at pp. 484–485. The ICTY and ICTR Rules set out as an exception to this general principle the case of unsworn testimony of a child. See: ICTY RPE, Rule 90(B); ICTR RPE, Rule 90(C). The ICTR Rule 96(i) takes this into account, specifying that ‘[n] otwithstanding Rule 90 (C), no corroboration of the victim’s testimony shall be required’. See also ICC Rule 63(4): ‘a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence . . .’. Askin, ‘Sexual Violence’ at p. 111, n. 70. Tadic´ (IT-94-1-T), Opinion and Judgment, 7 May 1997, paras. 535–539. Also: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 133; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 45; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 18; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 504–505. ICTY RPE, Rule 96(ii); ICTR RPE, Rule 96(ii); SCSL RPE, Rule 96(i)–(iii). The initial version of the ICTY Rules stated simply that consent was not a defence in cases of sexual

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Furundzˇija Trial Chamber held that ‘any form of captivity vitiates consent’.279 In Kunarac, an ICTY Trial Chamber criticised ICTY Rule 96 as being inconsistent with traditional legal understandings of the concept of consent in rape. It said that in national legal systems where consent is an aspect of the definition of rape, it is the absence of consent that is an element of the crime. ‘The use of the word ‘‘defence’’, which in its technical sense carries an implication of the shifting of the burden of proof to the accused, is inconsistent with this understanding’, said the Trial Chamber. The point, it seems, is that the accused need not prove that there is consent; rather, the Prosecutor must prove the absence of consent, although this will generally be rather obvious in the circumstances of a trial for sexual assault.280 Consistent with Kunarac, the SCSL Rules are formulated diVerently, although the eVect is largely the same as in the ICTY and ICTR Rules. SCSL Rule 96 is actually identical to the corresponding provision in the ICC RPE.281 It declares that consent cannot be inferred from words or conduct of the victim when there is an oppressive or coercive context, or where the victim is incapable of giving genuine consent, or by reason of the silence of or lack of resistance by the victim. The ICTY and ICTR Rules call for a special hearing or voir dire to be held before evidence of the victim’s consent is admitted. The accused is required to satisfy the Trial Chamber in camera that the evidence of consent is relevant and credible.282 The provision has been removed from the SCSL RPE.283 Finally, the ICTY and ICTR Rules also prohibit the admission of evidence of prior sexual conduct of the victim.284 This is commonly known as a ‘rape shield’ provision, and has been adopted in many justice systems to prevent oppressive cross-examination of victims of sexual assault. It responds to an

279 280

281 282 283

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assault, but this clumsy wording had the inadvertent consequence of making all forms of sexual activity illegal. In any case, these provisions are probably unnecessary, because any consent obtained as a result of violence, duress or threats is not valid consent. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 271. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 463. For a somewhat diVerent view, see the remarks of the former Prosecutor, Richard Goldstone: ‘the burden of proof is placed very clearly on the defendant to establish why, in that war situation, consent is at all relevant to the defense’. Goldstone, ‘Prosecuting Rape as a War Crime’, at p. 284. ‘Rules of Procedure and Evidence’, ICC-ASP/1/3, p. 10, Rule 70. ICTY RPE, Rule 96(iii); ICTR RPE, Rule 96(iii). It is also absent from the ICC RPE. The ICTY Appeals Chamber has stated that despite the absence of any general provision for a voir dire in the RPE, it can be applied in appropriate cases by Trial Chambers to determine admissibility of evidence. See: Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 541. For an example: Bizimungu et al. (ICTR-99-50-T), Oral Decision on Qualification of Prosecution Expert Jean Rubaduka, 24 March 2004. ICTY RPE, Rule 96(iii).

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unfair stereotype by which a sexually active woman should be presumed to have consented to the sexual activity which is the basis of the prosecution. The fear of such inquiries often discourages rape victims from making criminal ˇ elebic´i trial to the prior complaints. When references were made during the C sexual conduct of a prosecution witness who was testifying to a charge of sexual assault, the Trial Chamber ordered that the reference be removed from the record, noting the need for protection of the privacy of witnesses and the necessary balancing between such considerations and the general principle of public proceedings.285 The SCSL RPE address the issue, but somewhat diVerently. SCSL Rule 96(iv) states that ‘[c]redibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of [sic] sexual nature of the prior or subsequent conduct of a victim or witness’. This Rule enables judges to refuse to allow cross-examination of victims of sexual assault, on grounds of relevance, and will probably have the same practical result as the comparable provisions in the ICTY and ICTR RPE.

Similar fact evidence Evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute may be admissible in the interests of justice.286 This may threaten the presumption of innocence of the accused, in that evidence of crimes not alleged in the indictment is used to establish guilt for the acts on which the prosecution is based. It is not to be confused with evidence of good character, which the defence may choose to present in an appropriate case.287 The ICTY Appeals Chamber has noted that under the so-called principle of ‘similar fact evidence’, courts in England and Wales, Australia and the United States admit evidence of crimes or wrongful acts committed by the defendant other than those charged in the indictment, if the other crimes are introduced to demonstrate a special knowledge, opportunity, or identification of the defendant that would make it more likely that he committed the instant crime as well.288

The RPE require that the Prosecutor disclose the acts tending to show such a pattern of conduct to the defence prior to trial.289 It is not suYcient for the Prosecutor simply to indicate that facts not pleaded in the indictment will

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Delalic´ et al. (IT-96-21-T), Decision on the Prosecution’s Motion for the Redaction of the Public Record, 5 June 1997. ICTY RPE, Rule 93(A); ICTR RPE, Rule 93(A); SCSL RPE, Rule 93(A). Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 114. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 321. ICTY RPE, Rule 93(B); ICTR RPE, Rule 93(B); SCSL RPE, Rule 93(B).

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be proven at trial. The ICTY RPE require the Prosecutor to identify the relevant evidence for each count in the indictment in the pre-trial brief.290 In a case where this had not been observed, because the Rule concerning references to evidence in the pre-trial brief had not yet been adopted, the Appeals Chamber considered the similar fact evidence to be nevertheless admissible: ‘the interests of justice would be best served in this instance by permitting the evidence to remain on the record, and to be used for the purpose of corroborating the evidence relating to the oVence charged, providing that such an approach would not be critically unfair to the defendant’.291 Evidence of various sniping incidents for which the accused, Galic´, was alleged to be responsible was presented following authorisation of an ICTY Pre-Trial Chamber, in order to establish a consistent pattern of conduct.292 Testimony by a woman who had been victimised by Mlado Radic´ was also admitted on this basis, although the acts were not mentioned in the indictment.293 In the same case, similar fact evidence was also admitted against Zoran Zˇigic´.294 The Appeals Chamber admitted evidence that Drago Josipovic´ had participated in an attack of the same nature, in the same vicinity and during the same time period as the acts charged, in order to establish a pattern indicating guilt for the attack in Ahmici on 16 April 1993.295

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293 294 295

ICTY RPE, Rule 65 ter. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 323. This is also discussed in Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 357–360, 451. Galic´ (IT-98-29-T), Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic´, 3 October 2002, fn. 1. Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 547, 556. Ibid., paras. 652, 663, 664. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 322.

13 Rights of the accused

During the Second World War, Churchill, Roosevelt and Stalin all entertained – it is diYcult to determine how seriously – the idea of some form of summary justice for major war criminals.1 The concept now is unthinkable. Indeed, only a few years later, one of the Nuremberg tribunals held that prosecutors and judges involved in a trial lacking the fundamental guarantees of fairness could be held responsible for crimes against humanity. Such guarantees include the right of the accused to introduce evidence, to confront witnesses, to present evidence, to be tried in public, to have counsel of choice, and to be informed of the nature of the charges.2 Common article 3 of the Geneva Conventions, adopted in 1949, refers to ‘the judicial guarantees which are recognized as indispensable by civilized peoples’ and prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, aVording all the judicial guarantees which are recognized as indispensable by civilized peoples’.3 ‘It is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings’, said the Secretary-General in his report to the Security Council accompanying the draft ICTY Statute.4 The Secretary-General cited article 14 of the International Covenant on Civil and Political Rights, the gold

1

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3

4

Arieh J. Kochavi, Prelude to Nuremberg, Allied War Crimes Policy and the Question of Punishment, Chapel Hill University of North Carolina Press, 1998, pp. 63–91. United States of America v. Alsto¨tter et al. (‘Justice trial’), (1948) 3 TWC1, 6 LRTWC 1, 14 ILR 278, at p. 97 (LRTWC). Geneva Convention of August 12, 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1950) 75 UNTS 35; Geneva Convention of August 12, 1949 for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 81; Geneva Convention of August 12, 1949 Relative to the Protection of Prisoners of War, (1950) 75 UNTS 135; Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, (1950) 75 UNTS 287. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 106.

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standard in terms of codification of the right to a fair trial in international human rights law.5 A slightly modified version of article 14 appears in the statutes of the three tribunals.6 Moreover, several specific provisions of the RPE, as well as norms of customary international law, complete the protection of the accused before the tribunal.7 For example, the tribunals are to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.8 Where the fundamental rights of the defence are at issue, the tribunals have not hesitated to go beyond the terms of the statutes and the Rules. For example, in one case the defence asked for access to non-public materials in five other cases involving similar events, facts and issues. The Trial Chamber observed that it had no jurisdiction to rule on measures adopted by another Trial Chamber so long as that Trial Chamber was still seized of a case, and moreover that the accused were not parties in the proceedings before the other Trial Chamber. Nevertheless, it said that ‘procedural relief must therefore be found for the Defence which will permit the merits of the motion to be considered’. The Trial Chamber requested the Trial Chambers seized of three of the other cases concerned to ‘review . . . the relevant issues raised in the Motion in the manner they deem most appropriate’ and further requested that they indicate whether in their opinion the Trial Chamber could grant the motion, and if so, whether special conditions of confidentiality and protective measures might be required.9 In another case, the Prosecutor had been asked to provide the defence with an inventory of personal items taken from the accused at the time of arrest. Noting that no such obligation was imposed upon the Prosecutor by either the Statute or the Rules, the Trial Chamber said that ‘the spirit of Rule 5’, which requires parties to comply with general principles of fairness, coupled with ‘the internationally recognised practice of providing inventories during seizure’, meant that the lacuna did not justify the Prosecutor’s decision not to provide such an inventory.10 But trial chambers have resisted suggestions that they improvise procedures for clarification or reconsideration,11 5 6 7

8

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11

International Covenant on Civil and Political Rights, (1976) 999 UNTS 171. ICTY Statute, art. 21; ICTR Statute, art. 20; SCSL Statute, art. 17. See, e.g., First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, paras. 22–26. ICTY RPE, Rule 89(D). Also: ICTY RPE, Rule 70(G); ICTR RPE, Rule 70(F); SCSL RPE, Rules 70(F), 95. Kordic´ et al. (IT-95-14/2-PT), Decision on the Motion of the Accused for Access to NonPublic Materials in the Lasˇva Valley and Related Cases, 12 November 1998. Ruggiu (ICTR 97-32-I), Decision on the Defence Motion for Restitution of Personal EVects, 7 July 1998. Kovacˇevic´ (IT-97-24-PT), Decision on Defence Motion to Reconsider, 30 June 1998, preambular para. 2.

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or that they allow appeals from judgments for which none are specifically allowed.12 Yet in many respects the tribunals have been far from exemplary with regard to the rights of the accused. In one of the very first rulings of the ICTY Trial Chamber, dealing with authorisation of anonymous testimony, two judges said that ‘[t]he International Tribunal is, in certain respects, comparable to a military tribunal, which often has limited rights of due process’.13 Some of the weaknesses in this respect are attributable to the special circumstances that exist in international criminal prosecution, and may be unavoidable under the circumstances. The inherently political dimension of the process, the pressures from governments as well as from civil society, and the impetus to complete the process and shut down the tribunals are all factors that contribute to this diYcult environment.

Rights of the suspect In one area, the law of the tribunals goes considerably further than what is required by international human rights law. The international human rights treaties do not make any provision for ‘suspects’, except to the extent that a suspect may be detained, in which case norms concerning ill treatment become applicable. In the course of an investigation by one of the tribunals, a suspect who is questioned by the Prosecutor has the following rights: i. to be assisted by counsel of the suspect’s choice or to be assigned legal assistance without payment if the suspect does not have suYcient means to pay for it; ii. to have the free assistance of an interpreter if the suspect cannot understand or speak the language to be used for questioning; and iii. to remain silent, and to be cautioned that any statement the suspect makes shall be recorded and may be used in evidence.14

Any questioning shall be audio-recorded or video-recorded. According to an ICTY Trial Chamber, the recording requirement was adopted in order ‘to have an authentic record of the questioning of a suspect or accused in order to guarantee that the rights of the suspect or accused were respected during such questioning as well as to provide a reliable record of the questioning as

12 13

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Ntuyahaga (ICTR-98-40-A), Decision Rejecting Notice of Appeal, 3 June 1999. Tadic´ (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 28. Along the same lines, see Kovacˇevic´ (IT-97-24-AR73), Separate Opinion of Judge Shahabuddeen, 2 July 1998, p. 4. ICTY RPE, Rule 42(A); ICTR RPE, Rule 43(A); SCSL RPE, Rule 43(A) (where the right to counsel is expressed somewhat diVerently).

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everything that the suspect or accused says during the questioning can be used against him as evidence’.15 Confirmation of the right to silence at the investigation stage, and the requirement that the investigators inform the suspect of this right, means that a suspect may quite simply refuse to cooperate with the Tribunal’s investigators. For this right to be eVective, the consequence must be that no adverse inference at trial can be drawn from a suspect’s refusal to cooperate or to be questioned. Nevertheless, cooperation with the Tribunal from the earliest stage may well take on relevance as a mitigating factor in the event that the suspect is later convicted. A suspect may be detained for a short period, at the request of the Prosecutor, prior to issuance of an indictment and formal arrest and transfer to the seat of the Tribunal.16 The statutes do not contain a provision analogous to article 9(2) of the International Covenant on Civil and Political Rights, stating that ‘[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him’. However, the ICTR Appeals Chamber has held that such a right exists. In Barayagwiza, it said that the suspect’s provisional detention pursuant to Rule 40bis, from arrest on 15 April 1996 until 3 May 1996, when he could be said to know ‘the general nature of the charges against him’, amounted to a violation of ‘the Appellant’s right to be informed without delay of the charges against him’.17 The decision is also authority for existence of a right of a suspect to apply to the Tribunal for relief, using a remedy analogous to the writ of habeas corpus, in the event of a violation of fundamental rights during provisional detention. There is a confusion of responsibilities and something of a judicial limbo when a ‘suspect’ is detained provisionally. The Prosecutor is dependent upon national authorities, who may not always have strong traditions of respect for fundamental rights in the area of criminal justice. The ICTR Appeals Chamber has spoken of the ‘international division of labour in prosecuting crimes’, adding that it must not be to the detriment of the apprehended person.18 Although no charges have been laid, the basis of detention is the combined legal eVect of the Statute and Rules and the applicable national legislation. A detained person probably has a remedy, in such cases, before international human rights bodies such as the Human Rights Committee, the European 15

16 17

18

Blagojevic´ et al. (IT-02-60-T), Decision on Vidoje Blagojevic´’s Expedited Motion to Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused Nikolic´ and Request for an Expedited Open Session Hearing, 13 June 2003. ICTY RPE, Rule 40bis; ICTR RPE, Rule 40bis; SCSL RPE, Rule 40bis. Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. Also: Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, paras. 226–227. Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 220.

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Court of Human Rights or the African Commission of Human and Peoples’ Rights, as well as before the international criminal tribunals. The RPE set a maximum time period of ninety days for the provisional detention of a suspect prior to being formally indicted, failing which the accused is entitled to be released.19 In Barayagwiza, the ICTR Appeals Chamber treated a violation of the provision, in a case where the accused was held for more than ninety days in Cameroon pending transfer to Arusha, to be not only a violation of the Statute and the Rules, but also a violation of the fundamental rights of the accused as set out in international human rights treaties.20 Once the accused has been brought to the seat of the court, he or she is to be taken ‘without delay’ before a judge ‘who shall ensure that the rights of the suspect are respected’.21

Independent and impartial tribunal Article 14 of the International Covenant on Civil and Political Rights, on which the fair trial provisions in the statutes are modelled, states that all persons are entitled to trial before ‘a competent, independent and impartial tribunal established by law’.22 One of the adaptations of the fair trial provisions in the statutes of the ad hoc tribunals is the removal of this requirement. The deletion is not explained in the Secretary-General’s report, although it is understandable, to the extent that the structure and establishment of the ICTY, as expressed in the Statute, was deemed by the Secretary-General to fulfil this condition. With respect to the judges themselves, the Secretary-General’s report said they should ‘be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial oYces. Impartiality in this context includes impartiality with respect to the acts falling within the competence of the International Tribunal.’23 As for the Prosecutor, the Secretary-General’s report speaks of an ‘independent Prosecutor’, and says ‘[t]he Prosecutor should act independently’,24 but makes no mention of impartiality. 19

20 21

22

23

24

ICTY RPE, Rule 40bis(D); ICTR RPE, Rule 40bis(C), (G), (H); SCSL RPE, Rule 40bis(H). Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999, para. 67. ICTY RPE, Rule 40bis(F); SCSL RPE, Rule 40bis(J); SCSL RPE, Rule 40bis(J). Similarly, ICTR RPE, Rule 44bis(D), (E); SCSL RPE, Rule 45(A)(i). See generally, on the issue with respect to international judges: Ruth Mackenzie and Philippe Sands, ‘International Courts and Tribunals and the Independence of the International Judge’, (2003) 44 Harvard International Law Journal 271. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 74. Ibid., para. 85.

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International human rights law has distinguished between ‘independence’ and ‘impartiality’. While independence is desirable in and of itself, its importance really lies in the fact that it creates the conditions for impartiality.25 This leads to a further distinction, between the objective and the subjective dimensions of the norm. An individual judge or prosecutor may be above reproach from the standpoint of impartiality, yet the conditions of appointment, remuneration and tenure may lead a ‘reasonable person’ to suspect that justice cannot be done. This is the objective test. Of course, in specific cases there may well be evidence suggesting that a particular individual in specific circumstances lacks impartiality. This possibility is specifically contemplated by the RPE, which call for disqualification in such cases.26 The ICTY Appeals Chamber has described judicial impartiality thus: [A] Judge should not only be subjectively free from bias, but also . . . there should be nothing in the surrounding circumstances that objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute: A. A Judge is not impartial if it is shown that actual bias exists. B. There is an unacceptable appearance of bias if: i. a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or ii. the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.27

One of the principal international instruments in this area is the Basic Principles on the Independence of the Judiciary, which was adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of OVenders, in 1985, and subsequently endorsed by the United Nations General Assembly.28 It states that ‘[p]ersons selected for judicial oYce shall be individuals of integrity and ability with appropriate training or qualifications in law’.29 The tribunals have been blessed with judges of the highest quality, many of whom were already internationally recognised experts in human rights, public international law and international humanitarian law. 25

26 27 28 29

The distinction between independence and impartiality is discussed at some length in Norman (SCSL-04-14-AR72(E)), Separate Opinion of Justice GeoVrey Robertson, 13 March 2004, para. 2. ICTY RPE, Rule 15(A); ICTR RPE, Rule 15(A); SCSL RPE, Rule 15(A). Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 189. ‘Basic Principles on the Independence of the Judiciary’, GA Res. 40/32, GA Res. 40/146. Ibid., para. 10.

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Quality control is built into the selection process for the ICTY and ICTR, which involves approval of a list by the Security Council and then election in the General Assembly. The curricula vitae of candidates are circulated publicly, and scrutinised by Member States, as well as by vigilant international nongovernmental organisations. Nomination of an unqualified or inappropriate candidate would lead to unbearable embarrassment for any State, and this seems to have been an eVective deterrent. This is not to say that when States vote in the General Assembly their choices are governed by the professional qualifications of the various candidates. While this may be relevant to some delegations, election in the General Assembly is a brutal business, and many political considerations that are irrelevant to the need for a high-quality bench come into play. The selection of judges for the SCSL is more questionable in this respect. Judges are appointed, not elected, and the process of their selection is not transparent. Of the eight judges, the Secretary-General of the United Nations designates five and the Government of Sierra Leone designates three.30 At the outset, the Secretary-General had sought to achieve a balance between nationals and non-nationals, so that there would be an appropriate mix of Sierra Leonean judges and international judges on the bench. The reference was changed from ‘Sierra Leonean judges’ to ‘judges appointed by the Government of Sierra Leone’ at the request of the Government of Sierra Leone.31 Although designation by the Secretary-General following a process that lacks real transparency is not an ideal situation, it is unlikely that the proverbial ‘reasonable person’ would be perturbed by the situation. The SecretaryGeneral is a person of great integrity who, moreover, appears to have no particular interest except that justice of the highest quality be done. Would that the same could be said of the Government of Sierra Leone. The President of Sierra Leone initiated eVorts to establish the Tribunal, calling for an institution whose mandate it would be to prosecute his enemies, members of the Revolutionary United Front.32 Members of the Government of Sierra Leone, including the President, participated in the conflict over which the Tribunal has jurisdiction. In fact, one of the accused was a minister in the Government at the time of his arrest, as well as at the time the judges were initially appointed, in July 2002. Without in any way impugning the actual impartiality of the individual judges appointed by the Government, a ‘reasonable

30

31

32

Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 2(2); SCSL Statute, art. 12(1). ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, p. 14, fn. 1. ‘Letter of 12 June 2000 from the President of Sierra Leone to the Secretary-General and the Suggested Framework attached to it’, UN Doc. S/2000/786, annex.

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person’ might well be uncomfortable with the entire process. The only judge of the SCSL to be disqualified was a Government of Sierra Leone appointee. The Appeals Chamber considered it improper for him to sit in trials with Revolutionary United Front suspects because in a widely circulated book – which was in print at the time of his appointment – he had expressed views on the responsibility of the RUF and of its leaders for various atrocities.33 The United Nations principles require that ‘[t]he term of oYce of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law’.34 The situation in this respect is far from ideal. Judges at the ICTY and ICTR serve terms of four years, subject to renewal, and judges at the SCSL serve terms of only three years. Even if it is assumed that terms of international judges, by their nature, are relatively short, a useful comparison can be made with the International Criminal Court. It was precisely because of concerns about independence and impartiality resulting from short terms, coupled with the possibility of re-election, that the drafters of the Rome Statute set terms of nine years with no possibility of re-election.35 Re-election of judges of the ad hoc tribunals is far from automatic, and several have failed to obtain a second mandate, often compromising the part-heard trials in which they were sitting. Why re-election is confined to one mandate is unclear. One judge has said that in the interests of independence, ‘judges on contracts should not have them renewed more than once’.36 This observation is a useful one, but why doesn’t it apply to re-election altogether? In the case of ad litem judges, who work essentially on a contractual basis, they are elected for ‘terms’ of four years, but can only sit for a maximum of three years.37 This very short term was set so that they would not become eligible for United Nations retirement pensions. In fact, the ad litem judges only work when the President of the Tribunal assigns them to a case. An ad litem judge might well be concerned that an unpopular ruling would mean, in eVect, that he or she would go to the bottom of the list, and be unlikely to be assigned to an additional trial.38 In 2005, the ICTY Statute was amended to

33

34

35

36

37 38

Sesay (SCSL-04-15-AR15), Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, 13 March 2004. ‘Basic Principles on the Independence of the Judiciary’, GA Res. 40/32, GA Res. 40/146, annex, art. 11. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 36(9) (a). Norman (SCSL-04-14-AR72(E)), Separate Opinion of Justice GeoVrey Robertson, 13 March 2004, para. 12. ICTY Statute, art. 13ter(2), adopted pursuant to UN Doc. S/RES/1329 (2000). Daryl A. Mundis, ‘The Election of ad litem Judges and Other Recent Developments at the International Criminal Tribunals’, (2001) 14 Leiden Journal of International Law 851.

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enable ad litem judges to stand for another term, making their independence even more vulnerable.39 Judges are remunerated at high international levels, and there can be few complaints in this area. For judges from developed countries, the salaries are certainly competitive with judicial remuneration at the national level. For judges from developing countries, the international salaries are well above the norm for national judges. Remuneration for the ICTY and ICTR judges is drawn from the general funds of the United Nations, and is relatively secure. Remuneration for SCSL judges is dependent upon the resources of the SCSL itself, which are in fact rather precarious. The SCSL is funded by voluntary contributions from Member States. When the Court was being established, the Secretary-General was reluctant to proceed until funds had been raised for at least three years of operations, but he later compromised. This situation was challenged unsuccessfully by one of the defendants at the SCSL in a preliminary motion. The SCSL Appeals Chamber said that mere complaint about funding arrangements of a Court cannot by itself be a ground for imputing a real likelihood of bias to a judge. What is material and has to be established is that such funding arrangements are capable of creating a real and reasonable apprehension in the mind of an average person that the judge is not likely to be able to decide fairly.40

The Appeals Chamber pointed out that the judges had secure contracts of three years, and that the SCSL was liable for the amount. It described the challenge as ‘far-fetched’ and lacking any ‘factual basis’.41 In an individual and concurring opinion, Judge Robertson examined the funding arrangements in some detail, noting the concern by the Secretary-General about the uncertainty of funding. He cited the agreement establishing the Court, which said that in the event voluntary contributions were insuYcient, the SecretaryGeneral and the Security Council would ‘explore alternate means of financing the Court’, taking this as an ‘assurance that the Security Council accepts continuing responsibility for the Court and will make up the balance should voluntary contributions prove inadequate’.42 None of the three statutes addresses the issue of dismissal or removal of judges. That this is important and relevant to judicial independence can be seen from the Rome Statute, which makes clear provision for both the

39 40

41 42

UN Doc. S/RES/1597 (2005), amending art. 13ter(1)(e) of the ICTY Statute. Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence), 13 March 2004, para. 30. Ibid., para. 37. Norman (SCSL-04-14-AR72(E)), Separate Opinion of Justice GeoVrey Robertson, 13 March 2004, para. 6.

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grounds of dismissal and the procedure to be employed.43 Moreover, four distinct provisions are devoted to the subject in the United Nations General Principles.44 The Rome Statute authorises removal of a judge for serious misconduct or serious breach of duties, or when a judge is unable to exercise his or her functions. Proceeding from the hypothesis that a judge at one of the tribunals actually became unfit but refused to resign, who would be responsible for dismissal? Lack of clarity on this point is, in itself, a serious shortcoming and a threat to judicial inpendence and impartiality. It is important for a judge to know what might constitutute suYcient grounds for removal from oYce. The issue of dismissal of judges has been raised before the ICTY, but not decided. In a challenge, the defence argued that the Security Council, a political body, had the authority to dismiss judges, but the Bureau replied that there was nothing in the Statute to give this responsibility either to the Security Council or to the General Assembly. According to Judge Shahabuddeen, an argument that the Tribunal is a subsidiary organ of the Security Council and that the latter could therefore act even without authorisation from the Statute of the Tribunal and without first amending it would collide with the nature of the Tribunal: the latter was obviously intended to be ‘established, not as an advisory organ or a mere subordinate committee . . . but as an independent and truly judicial body’.45 Judge Shahabuddeen doubted whether the Plenary would have the power to remove a judge.46 It is probably a general principle of law that where no mechanism is established to remove an oYce-holder, the authority for removal resides with the body that appointed the oYce-holder. Removal of ICTY and ICTR judges by the United Nations General Assembly, and removal of SCSL judges by the Secretary-General, would probably not shock the ‘ordinary person’. The same cannot be said about the three SCSL judges who are appointed by the Government of Sierra Leone. There have been several challenges to individual judges aimed at recusing them from specific cases. The RPE allow for this ‘in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might aVect his or her impartiality’. If the judge does not

43 44

45

46

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 46. ‘Basic Principles on the Independence of the Judiciary’, GA Res. 40/32, GA Res. 40/146, annex, arts. 17–20. Delalic´ et al. (IT-96-21-A), Declaration of Judge Shahabuddeen, 25 October 1999 (Judge Shahabuddeen cited the EVect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion, [1954] ICJ Reports 1954, p. 53). Delalic´ et al. (IT-96-21-A), Decision of the Bureau on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 October 1999.

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voluntarily withdraw from the case, the Bureau is authorised to determine the matter.47 Defendants have also invoked, on appeal, an alleged lack of impartiality manifested in the behaviour of the trial judges. Akayesu charged that Judge Pillay had asked a witness about sexual violence committed at Taba (‘Any report of incidence of rape that you have heard?’), although nothing of the sort had been alleged in the indictment. He said this showed she was not impartial with regard to the specific issue of sexual violence committed at Taba. The ICTR Appeals Chamber noted that the ‘question was asked in a neutral tone, just like all the other questions that Judge Pillay asked’, and dismissed the argument.48 Judge Kama interrupted Akayesu’s counsel, during cross-examination of a rape victim: ‘Is that important? . . . She was raped so frequently that she can no longer remember how often it was; 4, 5, 6, 7 times.’ Akayesu’s counsel argued that this indicated he believed the witness, and sought to protect her from questions that might have embarrassed her. The Appeals Chamber considered that, in the context of the entire cross-examination, Judge Kama was merely exercising the normal functions of a presiding judge.49

Equality before the law ‘All persons shall be equal before the International Tribunal’, the statutes declare.50 The right accrues to ‘all persons’, and not to ‘all parties’, as one ICTR Trial Chamber has suggested.51 Equality before the law should not be confused with ‘equality of arms’, which is a principle of procedural fairness. In ˇ elebic´i case, the ICTY Appeals Chamber considered the principle of the C equality before the law within the context of prosecutorial discretion. It said: This provision reflects the corresponding guarantee of equality before the law found in many international instruments, including the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on 47

48 49 50

51

ICTY RPE, Rule 15(B); ICTR RPE, Rule 15(B). The SCSL RPE, Rule 15(B) assigns this responsibility to the President. This subject is discussed in greater detail above at pp. 416–419. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 197–200. Ibid., paras. 203–207. ICTY Statute, art. 21(1); ICTR Statute, art. 20(1). The SCSL Statute, art. 17(1), uses a slightly diVerent formulation: ‘All accused shall be equal before the Special Court.’ The language in the ICTY and ICTR Statutes is taken verbatim from article 14(1) of the International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, and it is puzzling, to say the least, why the Secretary-General departed from such a wellentrenched formulation of international human rights law. Bagambiki et al. (ICTR-97-36-T), Decision on the Defence Motion for the Protection of Witnesses, 30 September 1998, p. 4.

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Civil and Political Rights, the Additional Protocol I to the Geneva Conventions, and the Rome Statute of the International Criminal Court. All these instruments provide for a right to equality before the law, which is central to the principle of the due process of law. The provisions reflect a firmly established principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law. Thus Article 21 and the principle it embodies prohibits discrimination in the application of the law based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin. The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.52

The Appeals Chamber suggested that there would be a violation of equality before the law if ‘the decision to prosecute him or to continue his prosecution was based on impermissible motives, such as race or religion, and that the Prosecution failed to prosecute similarly situated defendants’.53 To show the Prosecutor is proceeding on a selective basis, ‘the evidence of discriminatory intent must be coupled with the evidence that the Prosecutor’s policy has a discriminatory eVect, so that other similarly situated individuals of other ethnic or religious backgrounds were not prosecuted’.54 The Prosecutor has indeed been criticised for taking ethnicity into consideration, and not just for focusing on one group and exonerating another. One defence lawyer has criticised a ‘Titoist tactic’ by which representatives of all three principal groups in the Yugoslav conflict have been indicted, in order to show that the Prosecutor is balanced.55 An ICTY Trial Chamber has suggested that the right to equality before the law might be violated in cases of plea bargaining. For example, it mentioned the possibility that the Prosecutor might seek to make a plea agreement with some accused because of their knowledge of particular events which may be useful in prosecutions of other, more high-ranking accused. The Prosecutor could make the terms of such a plea agreement quite generous in order to secure the cooperation of the accused. ‘Other accused, who may not have been involved in the most egregious crimes or who may not have been part of a joint criminal enterprise with more high

52 53

54 55

Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 605 (reference omitted). Ibid., para. 607. Also: Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 870–871. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 94–96. John R. W. D. Jones, ‘The Gamekeeper-Turned-Poacher’s Tale’, (2004) 2 Journal of International Criminal Justice 486, at pp. 493–494.

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ranking accused, may not be oVered such a generous plea agreement, or indeed any plea agreement’, she said.56

Equality of arms The term ‘equality of arms’ does not appear in the statutes, nor was it referred to in the Secretary-General’s report to the Security Council on the draft ICTY Statute. ‘Equality of arms’ is an expression taken from European human rights law57 that has been adopted and endorsed by the tribunals to refer to a range of fair trial rights, some of them codified in the statutes. For example, the accused is entitled ‘to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing’.58 He or she also has the right ‘to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’.59 The ICTY Appeals Chamber has described the principle of equality of arms ‘as being only one feature of the wider concept of a fair trial’.60 In Tadic´, the ICTY Appeals Chamber explained that ‘the principle of equality of arms falls within the fair trial guarantee under the Statute’. It continued: [U]nder the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts. This principle means that the Prosecution and the Defence must be equal before the Trial Chamber. It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case. The Trial Chambers are mindful of the diYculties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal. Provisions under the Statute and the Rules exist to alleviate the diYculties faced by the parties so that each side may have equal access to witnesses.61

56 57

58 59 60

61

Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 66. Ekbatani v. Sweden, (1988) 10 EHRR 510, para. 30; Barbera` v. Spain, (1988) 11 EHRR 360, para. 18; Brandsetter v. Austria, (1991) 15 EHRR 213, para. 67. ICTY Statute, art. 21(4)(b); ICTR Statute, art. 20(4)(b); SCSL Statute, art. 17(4)(b). ICTY Statute, art. 21(4)(e); ICTR Statute, art. 21(4)(e); SCSL Statute, art. 21(4)(e). Kordic´ et al. (IT-95-14/2-A), Decision on the Application by Mario Cˇerkez for Extension of Time to File his Respondent’s Brief, 11 September 2001, para. 5. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 52. The United States of America invoked the Appeals Chamber’s comments before the Inter-American Commission on Human Rights, in a case dealing with capital punishment, as authority for the proposition that ‘equality of arms’ concerns procedural but not substantive equality: Garza v. United States of America, Report No. 52/01, Case 12.243, 4 April 2001, para. 56.

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But ‘equality of arms . . . does not necessarily amount to the material equality of possessing the same financial and/or personal resources’.62 The ICTR Appeals Chamber invoked the concept of ‘equality of arms’ in denying the Prosecutor the right to appeal the decision of a confirming judge to dismiss an indictment. It said that under article 25 of the ICTR Statute, the Appeals Chamber could hear appeals from ‘persons convicted by the Trial Chambers’ or from ‘the Prosecutor’. Allowing the Prosecutor also to appeal the denial of issuance of an indictment would violate the principle of equality of arms, which requires that the parties enjoy corresponding rights of appeal, said the Appeals Chamber.63 But the ICTY Appeals Chamber has also referred to the principle with respect to the Prosecutor, noting: ‘This application of the concept of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the interests of the victims of the oVence charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community).’ It said that ‘each party must be aVorded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-a`-vis his opponent’.64 The ICTY Appeals Chamber has held that at a minimum, ‘a fair trial must entitle the accused to adequate time and facilities for his or her defence’ under conditions that do not place him or her at a substantial disadvantage as regards his or her opponent.65

Public hearing The statutes declare that an accused person is entitled to ‘a fair and public hearing’.66 The issue of fairness is not treated separately, as it underpins all of the fair trial rights discussed in this chapter. The ICTY and ICTR statutes note 62

63

64

65

66

Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, paras. 63–71; Milutinovic´ et al. (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003. Bagosora et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste Bagosora and 28 Others, 8 June 1998, paras. 34–35. Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, paras. 24–25. For another example of the doctrine of ‘equality of arms’ working in favour of the Prosecutor: Kupresˇkic´ et al. (IT-95-16-T), Decision, 11 January 1999. Tadic´ (IT-94-1-A), Judgment, 15 July 1999, para. 47; Kordic´ et al. (IT-95-14/2-A), Decision on the Application by Mario Cˇerkez for Extension of Time to File his Respondent’s Brief, 11 September 2001, para. 6; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 175. ICTY Statute, art. 21(2); ICTR Statute, art. 20(2); SCSL Statute, art. 17(2). Also: ICTY RPE, Rule 78; ICTR RPE, Rule 78; SCSL RPE, Rule 78.

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explicitly that the principle of public trial is subject to exceptions, with specific reference to protective measures for victims and witnesses which ‘shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity’.67 The Rules authorise the exclusion of the press and the public from all or part of the proceedings on the following grounds: public order or morality; safety, security or non-disclosure of the identity of a victim or witness; the protection of the interests of justice. The Trial Chamber is required to make public the reasons for any order that makes an exception to the principle of public trial.68 The term ‘press or public’ has been considered not to include investigators, who are treated as part of the ‘legal team’ and allowed to attend in camera sessions.69 In Milosˇevic´, the Prosecutor requested in camera testimony of a witness who was associated with an unnamed humanitarian organisation, citing security concerns for the current and future personnel of the humanitarian organisation that may arise if its mandate is perceived to be compromised. The Trial Chamber noted that it had ‘exercised great care in granting closed session testimony due to its regards for the rights of the accused to a fair and public hearing, explicitly stated in article 21 of the Statute, and accordingly has granted closed session testimony only in very limited circumstances, including where extraordinary risks attach to the witness’s own safety or that of his or her family’. It said that while it acknowledged the work of the humanitarian organisation, and that protection of its current and future personnel were important interests which warranted consideration, and accepted that personnel of the humanitarian organisation have been the target of attacks and intimidation both in Bosnia and elsewhere, ‘the interests sought to be protected are too remote and do not outweigh the accused’s right to a fair and public hearing’.70 In addition to the presence of the public and the press in the courtroom itself, the principle also dictates access to the case files, including transcripts of the proceedings. Taking advantage of modern technology, the tribunals have endeavoured to make much of this material available on the internet. There have been some odd exceptions, however. In a recusal case before the SCSL, Judge Winter filed a personal response to charges that she lacked impartiality.

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ICTY Statute, art. 22; ICTR Statute, art. 21. ICTY RPE, Rule 79; ICTR RPE, Rule 79; SCSL RPE, Rule 79. Norman (SCSL-04-14-T), Decision on Joint Motion by Sam Hinga Norman, Moinina Fofana and Allieu Kondewa Seeking Permission for Defence Investigators to Sit in Court During Closed Sessions, 28 February 2005; Naletilic´ et al. (IT-98-34-T), Decision on Prosecutor’s Motion to Permit Investigators to Follow the Proceedings, 30 April 2001. Milosˇevic´ (IT-02-54-T), Decision on Prosecution Motion for Protective Measures (Concerning a Humanitarian Organisation), Public Version of a Confidential Decision Filed 13 March 2003, 1 April 2003.

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She made serious accusations against one of her colleagues.71 The document was disseminated publicly for a few days, and widely circulated on the internet, before the Court issued an order, apparently emanating from Judge Winter herself, who was Acting President of the Court, that it be treated confidentially. The statement is referred to in the SCSL Appeals Chamber ruling on the issue, where it is described as a confidential document.72 Subsequently, the defence filed a motion requesting that the Winter statement and related documents be made public. In ruling on the application, the Appeals Chamber said it ‘may be in the public interest’ to reveal the contents of two letters that were produced in the record. One letter was from Judge Winter, who indicated that she withdrew many of her allegations. The other was from Judge Robertson, who expressed satisfaction in this respect, but who also agreed to recuse himself from the proceedings. The Appeals Chamber concluded that ‘transparency has been provided’ and that ‘any further disclosure of documents filed confidentially is not warranted’.73

Presumption of innocence The presumption of innocence is reflected in a number of diVerent provisions within the statutes. Most important is the principle that guilt must be established beyond a reasonable doubt, and that if there is a reasonable doubt about the guilt of the accused, he or she is to be acquitted.74 The Prosecutor has the burden of proof, and the defence is entitled to present a motion for acquittal at the end of the Prosecutor’s case in chief.75 As the ICTR Appeals Chamber has stated, ‘the presumption of innocence does not require the trial chamber to determine whether the accused is ‘‘innocent’’ of the fact at issue; it simply forbids the trial chamber from convicting the accused based on any allegations that were not proven beyond a reasonable doubt’.76 In a case where

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Norman (SCSL-04-14-PT), Judge Winter’s Response to Motion to Recuse her from Deliberating on the Preliminary Motion on the Recruitment of Child Soldiers, 14 May 2004. Norman (SCSL-04-14-PT), Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers, 28 May 2004. Norman (SCSL-04-14-T), Sesay – Decision on Confidential Motion Seeking Disclosure of Documentation Relating to the Motion on the Recruitment of Child Soldiers, 28 July 2004. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 12; Niyitegeka (ICTR-9614-T), Judgment and Sentence, 16 May 2003, para. 45; Milosˇevic´ (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, para. 68. The burden of proof is discussed in detail above at pp. 463–467. ICTY RPE, Rule 98bis; ICTR RPE, Rule 98bis; SCSL RPE, Rule 98bis. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004.

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the Prosecutor sought to admit in evidence certain facts that had been proven in another case, in accordance with Rule 93bis, Judge Hunt quarrelled with the suggestion that such evidence was to be presumed valid, subject to rebuttal by the defence. For Judge Hunt, ‘[t]o identify an adjudicated fact as a presumption, necessarily (as the prosecution concedes) places some burden of proof upon the accused, and this is contrary to the presumption of innocence which the Statute provides’.77 The European Court of Human Rights has attempted to define the presumption of innocence: It requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the oVence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defence accordingly, and to adduce evidence suYcient to convict him.78

Most of the discussion about the presumption of innocence in the case law of the tribunals has concerned applications for provisional release. Article 9(3) of the International Covenant on Civil and Political Rights, in what is said to be a corollary of the presumption of innocence, states that ‘[i]t shall not be the general rule that persons awaiting trial shall be detained in custody’. In an early decision, President Cassese said he was striking a balance between two main interests, namely ‘the right of all detainees to be treated in a human manner in accordance with the fundamental principles of respect for their inherent dignity and the presumption of innocence’ and ‘the imperatives of security and order’.79 In a later debate, following the amendment of the RPE to remove the ‘exceptional circumstances’ condition for provisional release,80 Judge Robinson said that [w]hile the Tribunal’s lack of a police force, its inability to execute its arrest warrants in States and its corresponding reliance on States for such execution may be relevant in considering an application for provisional release, on no account can that feature of the Tribunal’s regime justify either imposing a burden on the accused in respect of an application under Rule 65 or rendering more substantial such a burden, or warranting a detention of the accused for a period longer than would be justified

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Milosˇevic´ (IT-02-54-AR73.5), Dissenting Opinion of Judge David Hunt, 28 October 2003, para. 7. Barbera` v. Spain, (1988) 11 EHRR 360, para. 77. Blasˇkic´ (IT-95-14-T), Decision on Motion of the Defence Seeking Modification of the Conditions of Detention of General Blasˇkic´, 9 January 1997. Above at pp. 389–395.

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having regard to the requirement of public interest, the presumption of innocence and the rule of respect for individual liberty.

He said it was a norm of customary international law, based on the presumption of innocence, ‘to make pre-trial detention an exception, which is only permissible in special circumstances’.81 An ICTY Trial Chamber judge said that ‘as a general rule, a decision to release an accused should be based on an assessment of whether public interest requirements, notwithstanding the presumption of innocence, outweigh the need to ensure, for an accused, respect for the right to liberty of person’.82 The SCSL Appeals Chamber has taken a substantially diVerent position, rejecting any relevance of the presumption of innocence to the determination of provisional release. ‘Whether a defendant will turn up for trial or intimidate witnesses cannot logically be aVected by the burden or standard of proof that will prevail at his trial, nor by presuming him innocent or guilty of the oVences charged (since innocent defendants may nevertheless try to avoid a lengthy trial or to threaten those who have made statements against them).’83 The Appeals Chamber cited a ruling of the United States Supreme Court in this respect: ‘[T]he presumption of innocence is a doctrine that allocates the burden of proof in criminal trials . . . [b]ut it has no application to a determination of the rights of a pre-trial detainee during confinement before his trial has even begun.’84 In its ‘General Comment’ on article 14 of the International Covenant on Civil and Political Rights, the Human Rights Committee has insisted that the presumption of innocence imposes a duty on all public authorities to ‘refrain from prejudging the outcome of a trial’.85 Along the same lines, according to the European Commission of Human Rights: It is a fundamental principle embodied in [the presumption of innocence] which protects everybody against being treated by public oYcials as being guilty of an oVence before this is established according to law by a competent court. Article 6, paragraph 2 [of the European Convention on Human Rights], therefore, may be violated by public oYcials if they declare that somebody is responsible for criminal acts without a court having found so. This does not mean, of course, that the authorities may not inform the public about criminal investigations. They do not violate

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Krajisnik et al. (IT-00-39 and 40-PT), Decision on Momcilo Krajisnik’s Notice of Motion for Provisional Release, 8 October 2001, Dissenting Opinion of Judge Patrick Robinson. Jokic´ et al. (IT-01-42-PT and IT-01-46-PT), Orders on Motions for Provisional Release, 20 February 2002. Norman et al. (SCSL-04-14-AR65), Fofana – Appeal Against Decision Refusing Bail, 11 March 2005, para. 37. Bell v. Wolfish, 441 US 520, 533 (1979). ‘General Comment 13/21’, UN Doc. A/39/40, pp. 143–147.

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Article 6, paragraph 2, if they state that a suspicion exists, that people have been arrested, that they have confessed, etc. What is excluded, however, is a formal declaration that somebody is guilty.86

Many defendants before the international tribunals, especially those who played a prominent role in the conflicts, have been condemned in the media, and by major international political figures. This seems almost an inexorable feature of international criminal justice. For example, a Security Council resolution denouncing the atrocities in Srebrenica singled out for special mention the Bosnian Serb leaders Radovan Karadzˇic´ and Ratko Mladic´, noting that they had been indicted by the ICTY for their responsibilities in the massacre.87 The word ‘alleged’ did not accompany the reference to their responsibilities. The resolution ‘[c]ondemn[ed] in particular in the strongest possible terms the violations of international humanitarian law and of human rights by Bosnian Serb and paramilitary forces in the areas of Srebrenica’. One answer to a charge that this violates the presumption of innocence is that if there is a breach, it will not have been committed by the Tribunal itself, but rather by the Security Council. But the ICTR Appeals Chamber has already judged it appropriate to grant a stay of proceedings in a case where rights of an accused were violated by a national justice system and not by the authorities of the tribunals themselves.88 As international justice becomes stronger, political bodies and personalities must show more caution in describing alleged perpetrators, so as not to violate the presumption of innocence. Hopefully, this will become more common as confidence increases in international judicial institutions to actually hold perpetrators accountable. But as Christopher Greenwood presciently warned, when the ICTY was in its infancy, ‘those who are most keen to publicise details of the guilt of individuals to the world need to bear in mind that too much publicity invites the argument that an accused cannot now receive a fair trial because the presumption of innocence has been undermined’.89

Right to be informed of the charge The accused is entitled ‘to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him’.90 The 86

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Krause v. Switzerland (App. no. 7986/77), (1978) 13 DR 73. Also, from the Court: Allenet de Ribemont v. France, Series A, No. 308, 10 February 1995, paras. 37, 41. See: Francis G. Jacobs and Robin C. A. White, The European Convention on Human Rights, 2nd edn, Oxford: Clarendon Press, 1996, p. 150. UN Doc. S/RES/1034 (1995). Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999. Christopher Greenwood, ‘The International Tribunal for Former Yugoslavia’, (1993) 69 International AVairs 641, at p. 655. ICTY Statute, art. 21(4)(a); ICTR Statute, art. 20(4)(a); SCSL Statute, art. 17(4)(a).

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right is distinct from that of a person who has been arrested to be informed, at the time of arrest, of the reasons for arrest and to be promptly informed of any charges against that person.91 The right of the accused to be informed in detail of the charge is respected in the preparation of a clear and informative indictment. In Kupresˇkic´, an ICTY Trial Chamber said: ‘It follows that the accused is entitled to know the specifics of the charges against him, namely the facts of which he is accused and the legal classification of these facts. In particular, as far as this legal element is concerned, he must be put in a position to know the legal ingredients of the oVence charged.’92 The ICTY Appeals Chamber has invoked this right to be informed of the nature and cause of the oVence, in stating that ‘a vague indictment, not cured by timely and suYcient notice, leads to prejudice’.93 Failure by the Prosecutor to provide suYcient clarification with respect to the crime against humanity of ‘other inhumane acts’ was held by an ICTR Trial Chamber to violate the fundamental right of the accused to be informed of the charges.94 Another Trial Chamber said that ‘[t]his right not only means that he shall be informed about the legal qualification of the charge against him, but also about the facts underlying the charge, in order to prepare adequately his defence’.95 The right of the accused to be informed of the nature and cause of the oVence is said to relate to the charge, and not to matters of evidence.96 However, one ICTY Trial Chamber has said that the obligation of disclosure, including the transmission to the defence by the Prosecutor of witness statements, is also a consequence of the general right to be informed of the nature and cause of the oVence.97 Another ruling holds that the accused has a right to have at least some of the documents supporting the indictment provided to him or her in translation.98

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94 95

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International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 9(2). Also: Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 224. Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, para. 725. Also: Kupresˇkic´ et al. (IT95-16-A), Appeal Judgment, 23 October 2001, para. 89; Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 12; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 209. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 58; also para. 78. Also: Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 583–589. Simic´ et al. (IT-95-9-T), Reasons for Decision on Prosecution’s Motion to Use Telephone Interviews, 11 March 2003. Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 88; Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 128. Kordic´ et al. (IT-95-14/2-PT), Order on Motion to Compel Compliance by the Prosecutor with Rules 66(A) and 68, 26 February 1999, p. 4. Delalic´ et al. (IT-96-21), Order on Defence Applications for Amendment of the Directive on Assignment of Defence Counsel, Forwarding the Documents in the Language of the

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Trial without undue delay The accused is entitled ‘to be tried without undue delay’.99 In the International Covenant on Civil and Political Rights, where this right is set out in article 14(3)(c), a companion right to be tried ‘within a reasonable time’ appears in article 9(3). The statutes of the international tribunals do not recognise this companion right, however. The distinction may not be of great significance, but it is certainly worth pointing out that the principle of a right ‘to be tried without undue delay’ is focused essentially on the length of pre-trial detention subsequent to indictment, the trial itself and the period between the conclusion of the trial and the delivery of the judgment. It is not engaged when, for example, a person is indicted many years after the events in question.100 The time limit begins to run when the suspect learns that he or she is being investigated with a view to prosecution, and concludes with the final judgment. What constitutes ‘reasonable’ time will vary depending on the nature of the proceedings and the charges themselves. By and large, it has not been considered unreasonable that complex trials for the serious oVences being prosecuted by the international tribunals can take many years to prepare and to complete. The Strasbourg organs have considered that trials lasting more than ten years are not incompatible with article 6(1) of the European Convention on Human Rights, while on the other hand holding others lasting less than one year to be in violation of the provision.101 In Kanyabashi, an ICTR Trial Chamber referred to the international human rights law authorities, noting that the European Court of Human Rights had said that ‘[t]he reasonableness of the period cannot be translated into a fixed number of days, months or years, since it is dependent on other elements which the judge must consider’.102 When reference is made to human rights case law, it is

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Accused and Confirmation of the Status of Witnesses for the Defence, 31 May 1996; Muhimana (ICTR-95-1-B-I), De´cision relative a` la requeˆte de la defence aux fins de traduction des documents de l’accusation et des actes de procedure en kinyarwanda, langue de l’accuse´, et en franc¸ais, langue de son conseil, 6 November 2001, para. 16. ICTY Statute, art. 21(4)(c); ICTR Statute, art. 20(4)(c); SCSL Statute, art. 17(4)(c). Slobodan Milosˇevic´ was indicted for his role in a joint criminal enterprise aimed at ‘forcible removal of the majority of the Croat and other non-Serb population from the approximately one-third of the territory of the Republic of Croatia that he planned to become part of a new Serb-dominated state’. The events occurred in late 1991 and early 1992, yet the indictment was not issued until late 2001, a full decade later (Milosˇevic´ (IT01-50-I), Indictment, 8 October 2001). Clare Ovey and Robin White, Jacobs and White, The European Convention on Human Rights, Oxford: Oxford University Press, 2002, pp. 166–168. Kanyabashi (ICTR-96-15-I), Decision on the Extremely Urgent Motion on Habeas Corpus and for Stoppage of Proceedings, 23 May 2000 (references omitted).

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important to bear in mind that, with some exceptions, persons on trial before the international tribunals are generally being held in detention. Some defendants at the ICTR had been in custody almost a decade, yet their trials at first instance had not even been completed.103 The ICTR Appeals Chamber has listed five factors to be considered in determining whether there has been a violation of the right to be tried without undue delay: (1) the length of the delay; (2) the complexity of the proceedings, such as the number of charges, the number of accused, the number of witnesses, the volume of evidence, the complexity of facts and law; (3) the conduct of the parties; (4) the conduct of the relevant authorities; and (5) the prejudice to the accused, if any. It granted an appeal from a decision by a Trial Chamber that erroneously took into account ‘the fundamental purpose of the Tribunal’ in its determination of whether the delay was undue.104 In dismissing the motion, the Trial Chamber had said: But any inquiry into an alleged breach of this right will necessarily involve the consideration of a number of factors, including the fundamental purpose of the Tribunal, which is ‘prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994’. This entails balancing the rights of the accused with other important considerations of interest all of which serve the ends of justice.

Moreover, the Appeals Chamber also said the Trial Chamber had erred in disregarding the conduct of the Prosecutor with respect to delay. The Trial Chamber had said ‘[t]hat there is no need to inquire into any role that the Prosecutor might have played about the alleged undue delay’.105 The Trial Chamber reconsidered the application in light of the Appeals Chamber ruling, and concluded laconically ‘on the basis of the facts put forward 103

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E.g., Theoneste Bagosora, who was arrested in Cameroon on 9 March 1996, and transferred to the ICTR Detention Facility in Arusha on 23 January 1997. Bagosora made his initial appearance before the ICTR on 20 February 1997. His trial was scheduled to begin in 1998, but this was delayed when the Prosecutor made a motion to join several cases together. Trial finally began on 2 April 2002. The Prosecutor closed its case against him on 14 October 2004. Mugiraneza (ICTR-99-50-AR73), Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, 27 February 2004. Mugiraneza (ICTR-99-50-I), Decision on Prosper Mugiraneza’s Request Pursuant to Rule 73 for Certification to Appeal Denial of His Motion to Dismiss for Violation of Article 20(4)(c) of the Statute, Demand for Speedy Trial and Appropriate Relief, 2 October 2003.

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by the Prosecutor that the delay in this case, if any, is not attributable to the OTP’.106 In an ICTY case, a Trial Chamber considered the issue of delay at the sentencing stage, after the accused had pleaded guilty. It noted that while he had been indicted in November 1994 and knew about the indictment shortly afterward, he had not actually been apprehended until 2000 (‘not having any obligation to surrender voluntarily to this Tribunal’). The sentencing judgment was not issued until December 2003. According to the Trial Chamber, which referred to European Court of Human Rights jurisprudence on the subject, ‘[t]aking into account, inter alia, the lengthy period of time necessary for preparing and deciding his motions on jurisdiction, the time spent in the United Nations Detention Unit cannot be regarded as disproportional’.107

Presence at trial The accused is entitled ‘to be tried in his presence’.108 According to the Secretary-General’s report to the Security Council that accompanied the draft statute, ‘[a] trial should not commence until the accused is physically present before the International Tribunal. There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence.’109 The right to be present at trial is discussed in detail in chapter 11.110

Right to counsel The defence bar is sometimes described as the ‘fourth pillar’ of the tribunals. Nevertheless, the statutes say essentially nothing on the subject, except to recall what is already acknowledged as a human rights norm applicable to the proceedings: every accused has the right ‘to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by

106

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Bizimungu et al. (ICTR-99-50-T), Decision on Prosper Mugiraneza’s Application for a Hearing or Other Relief on his Motion for Dismissal for Violation of his Right to a Trial Without Undue Delay, 3 November 2004, para. 32. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 271. ICTY Statute, art. 21(4)(d); ICTR Statute, art. 20(4)(d); SCSL Statute, art. 17(4)(d). ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 101. Above at pp. 419–422.

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him in any such case if he does not have suYcient means to pay for it’.111 With rare exceptions, accused persons have been defended by counsel funded by the tribunals.112 David Tolbert, who has worked in several senior positions with the ICTY over the years, describes the defence counsel and legal aid systems as ‘the ICTY’s Achilles’ heel’.113 The original version of the ICTY RPE stated: ‘A counsel shall be considered qualified to represent a suspect or accused if he satisfies the Registrar that he is admitted to the practice of law in a State, or is a University professor of law.’114 John Ackerman, an experienced defence counsel and the first president of the ICTY Association of Defence Counsel, has described these as ‘perhaps, the least stringent requirements that could conceivably be imposed’.115 Few would argue that the quality of defence counsel has been highly uneven, and that many lawyers have practised before the tribunals who lacked the knowledge and experience to provide adequate representation in such important trials.116 Many were unfamiliar with both the substantive law and the adversarial procedure of international judicial institutions.117 For example, in the very first case to come before the ICTY Appeals Chamber, it became apparent that the defence lawyer was ignorant of the distinction between war crimes and crimes against humanity, and that as a result his client’s plea of guilty was not informed.118 In the words of Judge Stephen, neither the defendant, Erdemovic´, nor his attorney, was familiar with ‘the concept of guilty pleas’ and ‘the relatively arcane area of international humanitarian law’.119 Without regulation of the qualifications of defence counsel, there is 111 112

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114 115

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ICTY Statute, art. 21(4)(d); ICTR Statute, art. 20(4)(d); SCSL Statute, art. 17(4)(d). See, e.g., Kvocˇka et al. (IT-98-30/1-A), Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zˇigic´, 7 February 2003. David Tolbert, ‘The ICTY and Defence Counsel: A Troubled Relationship’, (2003) 37 New England Law Review 975, at p. 975. ICTY RPE, Rule 44. John E. Ackerman, ‘Assignment of Defence Counsel at the ICTY’, in Richard May et al., eds., Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, The Hague: Kluwer Law International, 2001, pp. 167–176, at p. 170. See also Mark S. Ellis, ‘The Evolution of Defence Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia’, (2003) 37 New England Law Review 949, at p. 956; Richard J. Wilson, ‘Assigned Defence Counsel in Domestic and International War Crimes Tribunals: The Need for a Structural Approach’, (2002) 2 International Criminal Law Review 145, at p. 167. For a pathetic example of inadequate pleadings, see the example cited in Norman et al. (SCSL-04-14-AR73), Decision on Amendment of the Consolidated Indictment, 17 May 2005, para. 48. Tolbert, ‘The ICTY and Defence Counsel’, at pp. 979–980. Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 18. Erdemovic´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Stephen, 7 October 1997, para. 5.

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a threat to both ‘the balance of the judicial system’ and ‘its credibility’.120 At a minimum, incompetent or inexperienced counsel have contributed to costly and unnecessary delays in the proceedings. The ICTY RPE require that defence counsel speak one of the two oYcial languages of the Tribunal.121 This is imposed upon all defence counsel, not just those funded by the Registry under the legal aid scheme, and is therefore a limitation on the right to counsel. The Rule was later made somewhat more stringent, requiring that counsel have ‘written and oral proficiency in one of the two working languages of the Tribunal’.122 But the Registrar can waive the requirement ‘[a]t the request of the suspect or accused and where the interests of justice so demand’ in cases where counsel speak the native language of the suspect or accused.123 This has not been a problem at the ICTR or SCSL where, by and large, all defendants have been fluent in either English or French. But at the ICTY, the majority of defence counsel have come from the former Yugoslavia, and the level of proficiency in English has often been inadequate for the demands of the work.124 An exception has been made in perhaps 20 per cent of ICTY cases, although the number has declined over the years.125 There is no right to choice of counsel when a defendant relies upon legal aid. According to the ICTR Appeals Chamber, ‘in the light of a textual and systematic interpretation of the provisions of the Statute and the Rules, read in conjunction with relevant decisions from the Human Rights Committee and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . the right to free legal assistance by counsel does not confer the right to choose one’s counsel’.126 In the case of an indigent accused, the Registrar assigns a lawyer drawing from a list of available counsel deemed eligible. Assignment of counsel is governed by a Directive that establishes rules for appointment, the status and conduct of assigned counsel,

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122 123 124

125 126

Christian Rhode, ‘Legal Aid and Defence Counsel Matters’, in Rodney Dixon and Karim Kahn, eds., International Criminal Courts: Practice, Procedure and Evidence, London: Sweet and Maxwell, 2003, pp. 543–601, at p. 556. ICTY RPE, Rule 44(A). See: Sixth Annual Report of the ICTY, UN Doc. A/54/187-S/ 1999/846, annex, para. 86. ICTY RPE, Rule 44(A)(ii). ICTY RPE, Rule 44(B) (amended 14 July 2000). Michael Bohlander, ‘International Criminal Defence Ethics: The Law of Professional Conduct for Defence Counsel Appearing Before International Tribunals’, (2000) 1 San Diego International Law Journal 7. Tolbert, ‘The ICTY and Defence Counsel’, at p. 978. Kambanda (ICTR 97-23-A), Judgment, 19 October 2000, para. 33; Akayesu (ICTR-964-A), Judgment, 1 June 2001, paras. 60–61; Ntakirutimana et al. (ICTR-96-10-T and ICTR-96-17-T), Decision on the Motions of the Accused for Replacement of Assigned Counsel, 11 June 1997.

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the calculation and payment of fees and disbursements, and the establishment of an advisory panel.127 The Directive says that ‘a suspect or an accused shall be considered to be indigent if he does not have suYcient means to retain counsel of his choice’. The scope of the inquiry is limited, however, and ‘in reality, only the disposable income and capital of the accused are taken into account when determining their financial means’.128 The Registrar is simply not equipped to investigate the circumstances of an accused,129 and with rare exceptions relies upon information provided by the accused in making a determination of indigence.130 Increasingly, the Registrar may require an accused to make partial payment of legal expenses.131 In rare cases, legal aid has been withdrawn altogether.132 As a general rule, the Registrar has been quite indulgent towards defendants, including in the roster individuals whom they have selected, and then allowing them to choose freely from the list of approved counsel.133 But ‘in the opinion of the Appeals Chamber the Registrar is not necessarily bound by the wishes of an indigent accused’.134 In one case, the ICTY Registrar denied Veselin Sˇljivancˇanin his choice of counsel because neither of the two lawyers he designated could speak one of the working languages of the Tribunal. Although exceptions can be made ‘on an exceptional basis, where the interests of justice so demand’, the Registrar was not prepared to show flexibility because the lawyer’s ‘history raises questions about his suitability for assignment as counsel, at the Tribunal’s expense’.135 Sˇljivancˇanin appealed the Registrar’s decision to the President of the ICTY, who considered that rules of procedural fairness in administrative decision-making had not been

127 128

129 130 131

132 133

134 135

First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 134. Stuart Beresford, ‘The International Criminal Tribunal for the Former Yugoslavia and the Right to Legal Aid and Assistance’, (1998) 2 International Journal of Human Rights 49, at p. 57 (citing Dokmanovic´ (IT-95-13a-PT), Further Explanation of the Registrar regarding the Decision not to assign Toma Fila as Defence Counsel to Slavko Dokmanovic´, 4 September 1997). Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 186. Ellis, ‘Evolution of Defence Counsel’, at pp. 961–962. ‘Comprehensive Report on the Progress made by the International Criminal Tribunal for the Former Yugoslavia in Reforming its Legal Aid System’, UN Doc. A/58/288, paras. 34–39; Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, para. 146. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, para. 246. Akayesu (ICTR-96-4-A), Decision on the Motions of the Accused for Replacement of Assigned Counsel, 27 July 1999, p. 2; Ntakirutimana et al. (ICTR-96-10-T and ICTR-9617-T), Decision on the Motions of the Accused for Replacement of Assigned Counsel, 11 June 1997, p. 6; Delalic´ et al. (IT-96-21-T), Decision on Request by Accused Mucic´ for Assignment of New Counsel, 24 June 1996, para. 2. Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 62. Sˇljivancˇanin (IT-95-13/1-PT), Registrar’s Decision, 9 July 2003.

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observed. He quashed the decision, and remitted the matter back to the Registrar for a more thorough hearing.136 At the beginning, only one defence counsel was allowed under the legal aid scheme, even though the Prosecutor might have several lawyers working on a case. Counsel for Tadic´ complained that this was insuYcient for such a complex case, and successfully obtained a change in policy to allow appointment of co-counsel. The Directive was amended to allow for appointment of co-counsel under exceptional circumstances,137 and the appointment of a second attorney is now a fairly routine matter.138 Allowance may also be made for the recruitment of investigators and researchers. Although it is common practice for the Registrar to provide indigent defendants with an investigator, there is no entitlement to such an appointment and it is within the Registrar’s discretion as to whether an investigator ought to be assigned.139 The ICTR Registrar has cancelled or refused to renew contracts of investigators when there are reasonable grounds to believe that they may ‘have been implicated in the events of 1994’.140 Relations between counsel and defendants have often been turbulent, with frequent demands from the accused to change lawyers, occasioning additional delays, disruption and increased costs.141 The right to choose one’s own counsel also implies the right to change counsel. The Chambers have been relatively indulgent when defendants have sought to replace counsel. Article 19(A) of the ICTR Directive on the Assignment of Defence Counsel authorises a change in counsel, at the request of the defendant or of counsel, where there are ‘exceptional circumstances’. Trial Chambers have held such ‘exceptional circumstances’ to exist when there is a lack of regular communication between counsel and defendant, and when there is a ‘lack of confidence’.142 The equivalent provision in the ICTY Directive speaks of ‘the interests of justice’

136

137

138 139

140 141 142

Sˇljivancˇanin (IT-95-13/1-PT), Decision on Assignment of Counsel, 20 August 2003. Also: Musliu (IT-03-66-PT), Decision on Assignment of Defence Counsel, 21 October 2003. Third Annual Report of the ICTR, UN Doc. A/53/429 S/1998/857, para. 106. Article 16(C) of the ICTY Directive on the Assignment of Defence Counsel, Directive No. 1/94, says that in addition to the lead counsel, ‘other counsel’ may be assigned ‘[i]n the interests of justice’. Ellis, ‘Evolution of Defence Counsel’, at pp. 954–955. Nyiramasuhuko et al. (ICTR-97-21-T), Decision on the Application by Arse`ne Shalom Ntahobali for Review of the Registrar’s Decisions Pertaining to the Assignment of an Investigator, 13 November 2002. Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, para. 101. Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 184. Akayesu (ICTR-96-4-T), Decision on the Request of the Accused for the Replacement of Assigned Counsel, 20 November 1996; Bagosora (ICTR-96-7-T), Decision on the Request by the Accused for Change of Assigned Counsel, 26 June 1997.

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rather than ‘exceptional circumstances’. The issue is settled by decision of the Registrar, subject to review by the President of the Tribunal.143 Only a few accused have sought to defend themselves. The judges do not seem to be of one mind on how to deal with such a situation. Some have held to the position that is generally followed in common law jurisdictions, by which the right is relatively absolute, subject of course to the defendant behaving appropriately in the courtroom. Others take a view inspired by civilian traditions, whereby counsel may be imposed in such circumstances. The issue arose for the first time at the ICTY in Milosˇevic´. The presiding judge of the Trial Chamber, Richard May, dismissed a motion by the Prosecutor seeking to impose counsel on the defendant. The principal justification invoked by the Prosecutor was the fragile medical condition of the defendant, which was apparently aggravated by the eVort involved in acting in his own defence, and which threatened to jeopardise the orderly progress of the trial. Judge May replied: ‘A plain reading of this provision indicates that there is a right to defend oneself in person and the Trial Chamber is unable to accept the Prosecution’s proposition that it would allow for the assignment of defence counsel for the Accused against his wishes in the present circumstances.’144 Judge May noted that the right to defend oneself was especially important in the essentially adversarial-type proceedings of the ICTY. Here he referred to a relevant decision of the United States Supreme Court, which held that ‘forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so’.145 As Judge May explained: There is a further practical reason for the right to self-representation in common law. While it may be the case that in civil law systems it is appropriate to appoint defence counsel for an accused who wishes to represent himself, in such systems the court is fulfilling a more investigative role in an attempt to establish the truth. In the adversarial systems, it is the responsibility of the parties to put forward the case and not for the court, whose function it is to judge. Therefore, in an adversarial system, the imposition of defence counsel on an unwilling accused would eVectively deprive that accused of the possibility of putting forward a defence. In this connection, Article 21(4)(d) of the Statute may be said to be reflective of the common law position.146

143

144

145 146

Milosˇevic´ (IT-02-54-T), Decision AYrming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005. Milosˇevic´ (IT-02-54-T), Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, para. 18. Faretta v. California, 422 US 806, 817 (1975). Milosˇevic´ (IT-02-54-T), Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, para. 24.

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Shortly thereafter, in Sˇesˇelj, the Prosecutor filed a motion asking that counsel be imposed on the accused, who had declared his intention to act in his own defence. The Prosecutor said that ‘the interests of justice require such action due to the complexity of the case; the Accused’s express intention to cause harm to the Tribunal and to use the proceedings as a forum for Serb national interests; the consequent possibility of a disorderly trial; the necessity to safeguard the administration of justice; and the public interest in the restoration of peace in the former Yugoslavia’. She said the case was distinguishable from Milosˇevic´, where medical reasons were the main concern. The Trial Chamber signalled the diVerence in approach between common law and ‘civil law’ systems, noting that international human rights case law acknowledged that the right to defend oneself was subject to limitations. It also observed that ‘[t]he Accused is in fact increasingly demonstrating a tendency to act in an obstructionist fashion while at the same time revealing a need for legal assistance’. Consequently, the Trial Chamber ordered the appointment of ‘standby counsel’, who would be mandated to assist the accused, and ‘in exceptional circumstances to take over the defence from the Accused at trial should the Trial Chamber find, following a warning, that the Accused is engaging in disruptive conduct or conduct requiring his removal from the courtroom’.147 Judge May subsequently withdrew from the Milosˇevic´ case because of a serious illness. Shortly afterwards his two colleagues, together with the judge appointed in his place, and inspired by the Sˇesˇelj ruling of the other Trial Chamber, revised the decision. Noting the ongoing medical problems of the accused, which had occasioned several adjournments in the course of the two and a half years of hearings, the Trial Chamber said: ‘If at any stage of a trial there is a real prospect that it will be disrupted and the integrity of the trial undermined with the risk that it will not be conducted fairly, then the Trial Chamber has a duty to put in place a regime which will avoid that. Should self-representation have that impact, we conclude that it is open to the Trial Chamber to assign counsel to conduct the defence case, if the Accused will not appoint his own counsel.’148 The Trial Chamber said it was of the opinion that it was necessary to relieve the Accused of the burden of conducting his own case with a view to stabilising his health to ensure, so far as possible, that the trial proceeds with the minimum of interruption in a way that will permit the orderly presentation of the

147

148

Sˇesˇelj (IT-03-67-PT), Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Sˇesˇelj with his Defence, 9 May 2003. Milosˇevic´ (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, para. 33. See also: Milosˇevic´ (IT-02-54-T), Order on Future Conduct of the Trial, 6 July 2004.

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Accused’s case and the completion of the trial within a reasonable time in his interests and the interests of justice: in other words, to secure for the Accused a fair and expeditious trial.149

The ‘assigned counsel’ appealed the decision, which was reversed, in part, by the Appeals Chamber. The Appeals Chamber stated that the right of an accused person to defend himself or herself could indeed be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial. It reasoned by analogy with the right to be tried in one’s own presence, which the Tribunal noted was subject to limitation in the event of disruption. ‘If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right to self-representation any diVerently’, it said.150 Of course, in the case of disruption, the accused can be said to have consciously and intentionally waived the right to be present at trial, and to act in his or her own defence. The Appeals Chamber said that it cannot be that the only kind of disruption legitimately cognizable by a Trial Chamber is the intentional variety. How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not suYciently robust to withstand all the rigours of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month?151

The Appeals Chamber did not consider that its reasoning amounts to a justification for discrimination against defendants who, for medical or other disability, are unable ‘to withstand all the rigours of trial work’. In the result, the Appeals Chamber felt that the imposition of counsel on Milosˇevic´ was excessive, under the circumstances. It opted, instead, for the ‘standby counsel’ approach that had earlier been adopted by a Trial Chamber in Sˇesˇelj. It said the trial was to continue as in the past, but with the presence of the standby counsel. ‘It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosˇevic´ to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it’, said the Appeals Chamber.152

149 150

151

Ibid., para. 66. Milosˇevic´ (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 13. 152 Ibid., para. 14. Ibid., para. 19.

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The Trial Chamber of the SCSL has also considered the question of selfrepresentation.153 Its judgment is the most extreme of the lot, and eVectively reduces the right of self-representation to an ineVective platitude. Referring to the formulation of the right of self-representation, the SCSL Trial Chamber said that because article 17(4)(d) of the Statute spoke of ‘the right to have legal assistance assigned’, this proved that ‘the right to defend himself or herself in person’ was only a qualified and not an absolute right. This is an extremely weak argument, because assignment of legal assistance is a ‘right’ of the defendant, who can presumably decide to waive the right. The provision says that an accused has two rights, one of self-representation and the other of assigned counsel. But for the SCSL Trial Chamber, one plus one does not add up to two. Unlike Milosˇevic´, the SCSL defendant Hinga Norman had no apparent medical problems, nor was he misbehaving in court. The judges simply felt he was not up to the job of defending itself, adding that the problems this might cause would also impact negatively on the right of the other two defendants in the case to a speedy trial.154 It would seem that all a Prosecutor need do is prepare joint indictments in order to eVectively neutralise the right to self-representation. Finally, the judges laid emphasis on the ‘time limited mandate of the Court’,155 a reference to the parsimonious resources allocated by the United Nations. In the end, it seems that they simply found the whole business of self-representation to be a big inconvenience. The Trial Chamber concluded, in a strikingly self-contradictory formulation, that ‘[t]he right to self-representation in this case . . . can only be exercised with the assistance of Counsel’.156

Right to an interpreter The accused is entitled ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal’.157 The mother tongue of defendants at the tribunals is generally the national or working language of their country: Serbian, Croatian or Bosniak for the Yugoslav defendants, Kinyarwanda for the Rwandan defendants, and Krio as well as a variety of regional languages for the Sierra Leonean

153

154

155 156 157

Norman et al. (SCSL-04-14-PT), Ruling on the Issue of Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings, 1 October 2004, para. 23. Norman et al. (SCSL-04-14-PT), Decision on the Application of Sam Hinga Norman for Self-Representation Under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004. Ibid., para. 26. Ibid., para. 32. ICTY Statute, art. 21(4)(f); ICTR Statute, art. 20(4)(f); SCSL Statute, art. 17(4)(f).

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defendants. In practice, the proceedings are systematically translated into these languages. The three Yugoslav languages are all ‘mutually intelligible to all citizens of the former Yugoslavia’, and the tribunals have denied requests of defendants that translators be provided in the specific dialect of SerboCroatian that they may favour.158 In addition, there is interpretation of the proceedings at the ICTY and ICTR into the two oYcial languages of the tribunal, English and French.

Right to silence The accused is entitled ‘not to be compelled to testify against himself or to confess guilt’.159 This means that from the earliest stage in the investigation, a ‘suspect’ or an accused need not speak to investigators or otherwise cooperate by providing information. The Rules impose an obligation to inform a suspect, prior to questioning, and in a language the suspect speaks and understands, of the right to remain silent, and to be cautioned that any statement the suspect makes shall be recorded and may be used in evidence.160 The issue has arisen in proceedings concerning provisional release, where the Prosecutor has argued that the silence of the accused is a pejorative factor militating against release. But Trial Chambers have said that the ‘lack of co-operation of an accused should not, as a rule, be taken into consideration as a factor’ that might justify denying an application for provisional release. According to an ICTY Trial Chamber, ‘[t]he alternative would easily result in infringement of the fundamental right of an accused to remain silent’.161 Cooperation with the Prosecutor may be cited as a mitigating factor at the sentencing stage, and to this extent there may be a price to be paid by an accused for exercising the right to silence. However, Trial Chambers have frequently insisted that the fact the accused does not plead guilty should not be viewed as an aggravating factor, ‘since an accused person has no

158

159 160

161

Delalic´ et al. (IT-96-21-T), Order on Zdravko Mucic´’s Request for Serbo-Croatian Interpretation, 23 June 1997; Krsmanovic´ (IT-96-19-Misc.1), Decision Concerning Serbo-Croatian Interpretation, 29 March 1997. ICTY Statute, art. 21(4)(g); ICTR Statute, art. 21(4)(g); SCSL Statute, art. 21(4)(g). ICTY RPE, Rules 42(A)(iii), 63(B); ICTR RPE, Rules 42(A)(iii), 63(B); SCSL RPE, Rules 42(A)(iii), 63(B). For an application, see: Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 551. Jokic´ et al. (IT-01-42-PT and IT-01-46-PT), Orders on Motions for Provisional Release, 20 February 2002. Also: Hadzˇihasanovic´ et al. (IT-01-47-PT), Decisions Granting Provisional Release to Enver Hadzˇihasanovic´, Mehmed Alagic and Amir Kubura, 9 December 2001, para. 15.

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obligation to do so and he has the right to remain silent should he choose that course’.162 In Niyitegeka, an ICTR Trial Chamber wrote: The Accused chose not to testify in his own defence in the present case. The Defence made submissions concerning the right to remain silent and the right not to testify. The Chamber is mindful of the Accused’s rights in this regard and has not drawn any adverse inference in the present case.163

ˇ elebic´i, the ICTY Appeals Chamber said that ‘an absolute prohibition In C against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules . . . Similarly, this absolute prohibition must extend to an inference being drawn in the determination of sentence.’164 The right to silence can of course be waived. An accused who pleads guilty in eVect abandons the right to silence, as well as certain other procedural rights.165 This has been spelled out in the plea agreements.166 Many accused have testified in their own defence. In the case of a defence of alibi, for example, it is virtually essential that the accused take the witness stand in order to explain his or her whereabouts at the time of the crime. Normally, if the accused decides to testify in his or her own defence, this opens the door to cross-examination by the Prosecutor. There is an exception, however. According to Rule 84bis, the accused may, with leave of the Trial Chamber, ‘make a statement under the control of the Trial Chamber. The accused shall not be compelled to make a solemn declaration and shall not be examined about the content of the statement.’ The Trial Chamber decides on the probative value, if any, of the statement. Several of the accused have taken advantage of the provision.167

Right of appeal According to article 14(5) of the International Covenant on Civil and Political Rights, ‘[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’. In his 162

163 164

165 166

167

Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 298; Delalic´ et al. (IT-9621-A), Judgment, 20 February 2001, para. 783; Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 64; Blasˇkic´ (IT-95-14-A) Judgment, 29 July 2004, para. 687. Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 46. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 783. Also: Plavsˇic´ (IT-0039&40/1), Sentencing Judgment, 27 February 2003, para. 64. Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 17. See, e.g., Obrenovic´ (IT-02-60-T), Plea Agreement, para. 17; Momir Nikolic´ (IT-0260-PT), Amended Plea Agreement, para. 5. See, e.g., Kvocˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 779.

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report on the draft statute, the Secretary-General referred to article 14(5), and said that the right of appeal ‘is a fundamental element of individual civil and political rights . . . For this reason, the Secretary-General has proposed that there should be an Appeals Chamber.’168 But although there is a right to appeal a conviction, all other appeals before the international tribunals are subject to authorisation, either by the Rules themselves or, in many cases, with leave from either a Trial Chamber or the Appeals Chamber.169 The ICTY Appeals Chamber considered the importance of the ‘right to appeal’ when it examined whether it was bound by its own precedent. It recalled that ‘the right of appeal is a component of the fair trial requirement’, and that ‘the right to a fair trial is, of course, a requirement of customary international law’.170 The Appeals Chamber associated the right of appeal with ‘the right of an accused to have like cases treated alike, so that in general, the same cases will be treated in the same way’. Moreover, the right to a fair trial also ‘requires and ensures the correction of errors made at trial. At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement in any appeal in which a previous decision of an appellate body is being considered.’171 The judges of the SCSL opted not to allow for interlocutory appeal of preliminary motions challenging jurisdiction. This was a change from the practice followed by the ICTY from its earliest days, and codified in Rule 72.172 The SCSL decided, instead, that challenges to jurisdiction would be heard by the Appeals Chamber sitting, so to speak, in first instance.173 Answering a challenge by defendants who argued that this was a breach of the right to appeal, the Appeals Chamber stated that the ICTY and ICTR were ‘significantly diVerent institutions’ with ‘personnel and budgets very greatly in excess of ours’. But there was an implied criticism of the length of proceedings, and particularly the pre-trial process, of the other two ad hoc tribunals.174 Answering the argument that human rights norms require that there

168

169 170 171 172

173

174

‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 116. This is discussed more thoroughly under Appeal, above at pp. 439–449. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 104. Ibid., paras. 105–106. ICTY RPE, Rule 72. See: Tadic´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 6. The SCSL Statute states that the Court is to apply the ICTR RPE, but that it may modify them as it sees fit. The original version of modified Rule 72, adopted by the SCSL at the first plenary of its judges, allowed the Trial Chamber to ‘fast-track’ a challenge to jurisdiction by sending it to the Appeals Chamber, at its discretion. The Rule was subsequently modified to make this automatic. Norman (SCSL-03-08-PT), Decision on the Applications for a Stay of Proceedings and Denial of Right to Appeal, 4 November 2003, para. 9.

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be an appeal, consistent with article 14(5) of the International Covenant on Civil and Political Rights, the Appeals Chamber stated: ‘It is obvious that this right applies only to those who have been convicted and sentenced and not to those in the position of the applicants who have yet to be tried.’ Despite its cogent observation that article 14(5) of the Covenant was applicable, the Appeals Chamber nevertheless went on to question whether or not the right to appeal a conviction had crystallised into a rule of customary international law, noting that several ‘important’ States had made reservations to the provision. The Appeals Chamber concluded: ‘There is no treaty authority and no significant precedent to which our attention has been drawn which elevates and extends the right to have a conviction or sentence reviewed to a general right to have every issue, particularly an issue determined by the highest court, capable of our subject to a review procedure.’175

Double jeopardy The rule against double jeopardy, known by the Latin maxim non bis in idem or ne bis in idem, is one of the fundamental rights to procedural fairness set out in article 14 of the International Covenant on Civil and Political Rights: ‘No one shall be liable to be tried or punished again for an oVence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’176 Judge Nieto-Navia has described non bis in idem as a ‘civil law principle’ that, according to Black’s Law Dictionary, means that the accused ‘shall not be twice tried for the same crime’. He said that the corresponding ‘common law principle’ of double jeopardy entitles the accused ‘not [to] be twice ‘‘put in jeopardy’’ for the same oVence’.177 The principle is incorporated in the statutes of the international tribunals: 1. No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 2. A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: a. the act for which he or she was tried was characterized as an ordinary crime; or b. the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.

175 176 177

Ibid., paras. 18–19. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 14(7). Tadic´ (IT-94-1-A), Declaration of Judge Nieto-Navia, 15 July 1999, para. 1.

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3. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.178

When the ICTR Statute was being adopted, Zaire expressed discontent with the non bis in idem provision. It said that determinations as to whether proceedings were impartial or independent should not be made by a political body such as the Security Council, but rather by ‘a respectable institution’ like the International Court of Justice or the proposed international criminal court.179 The statutes allow the Prosecutor to appeal an acquittal, and in some common law jurisdictions this may be prohibited on the basis of the double jeopardy principle. In his separate opinion in the Tadic´ appeal, Judge NietoNavia concluded, after reviewing practice in both common law and civil law jurisdictions, ‘that no general principle of law can be drawn from domestic practice. Unlike the Anglo-American common law system, the civil law system does not construe Prosecution appeals against acquittals to compromise the principle of non bis in idem.’180 Some of the accused have argued that conviction for multiple oVences relating to the same criminal act amounts to a form of double jeopardy.181 According to the ICTR Appeals Chamber, in Ntakirutimana, the Appeal Brief had failed to ‘elaborate any argument that double jeopardy principles are oVended by two convictions with mental elements established by the same conduct but each with an actus reus distinguishable in time, location, and identity of victims. There is no need to decide whether such an argument could be successfully mounted; it suYces for present purposes that Ge´rard Ntakirutimana has failed to do so here.’182 The ICTY Appeals Chamber said it considered the element of double jeopardy involved when it revised the sentence imposed on Zlatko Aleksovski, increasing it from two-and-a-half years to seven years. The Chamber noted that the appellant had to appear for sentence twice for the same conduct, ‘suVering the consequent anxiety and distress’, and also that he had been 178 179

180 181

182

ICTY Statute, art. 10; ICTR Statute, art. 9; SCSL Statute, art. 9. ‘Letter dated 7 November 1994 from the Charge´ d’aVaires a.i. of the Permanent Mission of Zaire to the United Nations Addressed to the President of the Security Council’, UN Doc. S/1994/1267. Tadic´ (IT-94-1-A), Declaration of Judge Nieto-Navia, 15 July 1999, para. 8. E.g., Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras. 8–10; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 190; Kupresˇkic´ (IT-95-16-T), Judgment, 14 January 2000, paras. 652, 667. Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 20.

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detained a second time after a period of release of nine months. ‘Had it not been for these factors the sentence would have been considerably longer’, said the ICTY Appeals Chamber.183

Redress for wrongful prosecution The International Covenant on Civil and Political Rights recognises a right to compensation for anyone who has been the victim of unlawful arrest or detention.184 Furthermore, when a person has been convicted and punished and subsequently the conviction is reversed or the person has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, there is also a right to compensation.185 Neither the statutes nor the RPE make any provision for compensation in the event of unlawful arrest or detention, or in the event of punishment as a result of a miscarriage of justice. In 2000, the presidents of the ICTY and ICTR, writing on behalf of all of the judges of the two courts, requested that the United Nations Secretary-General ask the Security Council to consider amending the statutes to enable the tribunals to award compensation to persons wrongly prosecuted or convicted by them, as well as unlawfully arrested or detained under their authority. The letters stated that although it could not be concluded that a right to compensation, in the case of wrongful arrest or detention, or conviction amounting to a miscarriage of justice, had achieved the status of customary international law, ‘the particular circumstances in which the [ad hoc tribunals operate], including the fact that the accused are detained for long periods pending trial’ militate in favour of recognising such a right.186 The Security Council has not seen fit to make any amendments to the statutes.187

183

184 185 186

187

Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 190. Also Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 759. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 9(5). Ibid., art. 14(6). ‘Letter dated 19 September 2000 from the President of the International Criminal Tribunal for the Former Yugoslavia Addressed to the Secretary-General, annexed to Letter dated 26 September 2000 from the Secretary-General Addressed to the President of the Security Council’, UN Doc. S/2000/904; ‘Letter dated 26 September 2000 from the President of the International Criminal Tribunal for Rwanda Addressed to the SecretaryGeneral, annexed to Letter dated 28 September 2000 from the Secretary-General Addressed to the President of the Security Council’, UN Doc. S/2000/925. Stuart Beresford, ‘Redressing the Wrongs of the International Justice System: Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals’, (2002) 96 American Journal of International Law 628. Also: Geert-Jan Alexander Knoops, An Introduction to the Law of the International Criminal Tribunals, Ardsley, NY: Transnational Publishers, 2003, pp. 191–199.

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Convicted persons who have succeeded in reversing guilty verdicts on appeal have sought compensation from the tribunals, invoking the provisions of article 14(6) of the International Covenant on Civil and Political Rights. For example, Mirjan and Zoran Kupresˇkic´ have demanded compensation from the ICTY for wrongful arrest and conviction, following a successful appeal.188 The Kupresˇkic´ brothers surrendered to the ICTY on 6 October 1997, and were held in custody until 23 October 2001, when the Appeals Chamber overturned their convictions. Another accused, Zejnil Delalic´, has also applied for compensation.189 Delalic´ was acquitted at trial, and the Prosecutor unsuccessfully appealed. He was held in custody pending both trial and appeal. Arrest and pre-trial detention do not automatically become wrongful, and subject to compensation, because an accused has been acquitted. The fact that a person has spent time in pre-trial detention and is later acquitted ‘does not in and of itself render the pre-trial detention unlawful’.190 According to Professor Manfred Nowak, in his Commentary on the International Covenant on Civil and Political Rights, article 9(5) ‘does not grant a right to compensation to innocent pre-trial detainees as long as their detention is based on a reasonable suspicion of having committed a crime’.191 Similarly, in the case of conviction, there must be some demonstration of a ‘miscarriage’ of justice. In Barayagwiza, the ICTR Appeals Chamber determined that there had been a violation of the rights of the accused and that he had been detained illegally for a protracted period. It ordered that in the event of an acquittal, he would be entitled to compensation.192 The problem of implementing this decision never arose, because Barayagwiza was convicted of inciting genocide. Instead, he was ‘compensated’ at the penalty stage, his sentence being ‘reduced’ from one of life imprisonment to thirty-five years.193 Similarly, the ICTR Appeals Chamber compensated Juve´nal Kajelijeli for ‘the serious violations of the Appellant’s fundamental rights during his arrest and detention in Benin and the UNDF’ by reducing the sentence imposed at trial, of two terms 188

189

190 191

192

193

Kupresˇkic´ et al. (IT-96-16-T), Request by Zoran Kupresˇkic´, 21 December 2001; Kupresˇkic´ et al. (IT-96-16-T), Request for Compensation for Mirjan Kupresˇkic´, 7 February 2002. Delalic´ et al. (IT-96-21-T), Request for Personal Funds Used for Defence Expenses, 18 May 2001. WBE v. The Netherlands (No. 432/1990), UN Doc. CCPR/C/46/D/432/1990, para. 6.5. Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd rev. edn, Kehl, Germany: NP Engel, 2005, p. 239. Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1107. Barayagwiza was born in 1950, and is entitled to be released when he is eighty, unless there is some remission of sentence.

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of life imprisonment and a term of fifteen years’ imprisonment to a single fixed term of forty-five years.194

Habeas corpus Known as the ‘Great Writ’ of the common law, the expression habeas corpus is known to jurists around the world as the remedy that exists for challenging the legality of detention. Taking various forms in diVerent legal systems, its common denominator is expressed in international human rights instruments. According to the Inter-American Court of Human Rights, habeas corpus is ‘a judicial remedy designed to protect personal freedom or physical integrity against arbitrary decisions by means of a judicial decree ordering the appropriate authorities to bring the detained person before a judge so that the lawfulness of the detention may be determined and, if appropriate, the release of the detainee be ordered’.195 For example, article 9(4) of the International Covenant on Civil and Political Rights states: ‘Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.’196 The right to this remedy has been described by the Human Rights Committee as a non-derogable norm of international human rights law.197 It is perhaps surprising that the right appears nowhere in either the statutes or the rules.198 Nevertheless, as the ICTR Appeals Chamber noted, ‘the notion that a detained individual shall have recourse to an independent judicial oYcer for review of the detaining authority’s acts is well-established by the Statute and Rules. Moreover, this is a fundamental right and is enshrined in international human rights norms.’199

Abuse of process In addition to the fundamental rights set out in the statutes and derived from article 14 of the International Covenant on Civil and Political Rights, the tribunals have also recognised a doctrine of ‘abuse of process’. The practice of 194

195

196 197 198 199

Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 324. This revised term will expire in 2043, when the accused will be ninety-one years of age! Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, 30 January 1987, Series A, No. 8, para. 33. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 9(4). ‘General Comment 29/72’, UN Doc. CCPR/C/21/Rev.1/Add.11, para. 16. Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999, para. 88. Ibid., para. 88; Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 38.

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the ICTY and ICTR is codified in the RPE of the SCSL. Rule 73(b)(v) authorises preliminary motions to be raised by the accused ‘based on abuse of process’. The rationale for the addition to the Rules is ‘primarily to enhance and further protect the rights of the accused’.200 According to the SCSL Appeals Chamber, ‘[a]t the root of the doctrine of abuse of process is fairness. The fairness that is involved is not fairness in the process of adjudication itself but fairness in the use of the machinery of justice.’201 The doctrine of abuse of process was applied by the ICTR Appeals Chamber in Barayagwiza, which cited the English House of Lords: ‘[P]roceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.’ Insisting that it was a discretionary doctrine, the Appeals Chamber described ‘a process by which Judges may decline to exercise the court’s jurisdiction in cases where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity’.202 The Appeals Chamber said that the doctrine could be relied upon where delay has made a fair trial for the accused impossible; and where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct.203 The doctrine is not to be invoked lightly, and will only be applied in clear cases when it can be shown that the rights of the accused have been ‘egregiously violated’.204 In Barayagwiza, where unjustifiable delay was at the core of the accused’s grievances, the Appeals Chamber ordered that charges be dismissed ‘with prejudice to the Prosecutor’, meaning that they could not be revived with a new indictment. However, the ruling was overturned some months later when the Appeals Chamber said that new evidence had become available that changed its perspective on the scale of the violation.205 The doctrine of abuse 200

201

202 203 204

205

Brima et al. (SCSL-04-16-PT), Written Reasons for the Trial Chamber Oral Decision on the Defence Motion on Abuse of Process Due to Infringement of Principles of nullum crimen sine lege and Non-retroactivity as to Several Counts, 31 March 2004. Kallon (SCSL-04-15AR72(E)) and Kamara (SCSL-04-16-AR72(E)), Decision on Challenge to Jurisdiction: Lome´ Accord Amnesty, 13 March 2004, para. 79. Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999, para. 74. Ibid., para. 77. Dragan Nikolic´ (IT-94-2-PT), Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 111. Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. See: William A. Schabas, ‘Barayagwiza v. Prosecutor’, (2000) 94 American Journal of International Law 638; William A. Schabas, ‘Barayagwiza v. Prosecutor, Commentary’, in Andre´ Klip and Goran Sluiter, eds., Annotated Leading Cases of International Criminal Tribunals, The International Criminal Tribunal for Rwanda 2000–2001, vol. VI, Antwerp: Intersentia, 2003, pp. 261–266.

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of process was also considered by the ICTY in Nikolic´, which concerned the abduction of an accused by SFOR troops in order to bring him into the custody of the Tribunal. The Appeals Chamber said that the fact that the violation was not attributable to an organ of the Tribunal was not a bar to it considering the matter. For the Appeals Chamber, the issue involved balancing the ‘legitimate expectation that those accused of [universally condemned oVences] will be brought to justice . . . against the principle of State sovereignty and the fundamental human rights of the accused’.206 It stated that the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory, particularly when the intrusion occurs in default of the State’s cooperation. Therefore, the Appeals Chamber does not consider that in cases of universally condemned oVences, jurisdiction should be set aside on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives from international justice, whatever the consequences for the international responsibility of the State or organisation involved. [In this case] the State whose sovereignty has allegedly been breached [Serbia and Montenegro] has not lodged any complaint and thus has acquiesced in the International Tribunal’s exercise of jurisdiction. A fortiori, . . . the exercise of jurisdiction should not be declined in cases of abductions carried out by private individuals whose actions . . . do not necessarily in themselves violate State sovereignty.207

The case recalled the Eichmann trial, involving a Nazi war criminal who had been abducted from Israel. Eichmann too invoked a doctrine of abuse of process, but this was dismissed by the Israeli court,208 and the ICTY Appeals Chamber did the same: [C]ertain human rights violations are of such a serious nature that they require that the exercise of jurisdiction be declined . . . Apart from such exceptional cases, however, the remedy of setting aside jurisdiction will, in the Appeals Chamber’s view, usually be disproportionate. The correct balance must therefore be maintained between the fundamental rights of the Accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law . . . [T]he evidence [presented] does not satisfy the Appeals Chamber that the rights of the Accused were egregiously violated

206

207 208

Dragan Nikolic´ (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, paras. 25–26. Ibid., para. 26. A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), paras. 41–52.

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in the process of his arrest. Therefore, the procedure adopted for his arrest did not disable the Trial Chamber from exercising its jurisdiction.209

Slobodan Milosˇevic´ unsuccessfully argued abuse of process with respect to his transfer to The Hague. He said it had been done in breach of the laws of the Federal Republic of Yugoslavia. At the outset, the ICTY Trial Chamber observed that ‘if there is an abuse of process, it does not lead to a lack of jurisdiction on the part of the International Tribunal; what it raises is the question whether, assuming jurisdiction, the International Tribunal should exercise its discretion to refuse to try the accused’.210 The Tribunal concluded that ‘the circumstances in which the accused was arrested and transferred – by the government of the Republic of Serbia, to whom no request was made, but which is a constituent part of the Federal Republic of Yugoslavia, to whom the request for arrest and transfer was made – are not such as to constitute an egregious violation of the accused’s rights’.211

Recourse to international human rights mechanisms Can an accused who has failed before the tribunals in challenges based upon fundamental rights lodge an application with an international human rights body? The issue is still largely speculative, and there are no authorities on the subject. A defendant detained at the ICTY might submit a petition against the Netherlands to the European Court of Human Rights or the United Nations Human Rights Committee. In accordance with article 1, the Netherlands ‘shall secure to everyone within their jurisdiction’ the rights and freedoms set out in the European Convention on Human Rights. Similarly, under article 2(1) of the International Covenant on Civil and Political Rights, which applies to the host States of all three tribunals, an obligation is imposed on a State party ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction’ the rights enshrined therein. Petition mechanisms to international courts and treaty bodies exist with respect to the European Convention, the Covenant, and other international human rights treaties. Presumably, a respondent State will argue that it is not responsible for the activities of the tribunals, because the institutions are not ‘subject to its jurisdiction’. The United Nations Working Group on Arbitrary Detention, which is created pursuant to a resolution of the Commission on Human Rights, has received complaints from at least three ICTR prisoners, Ignace Bagilishema,

209

210 211

Dragan Nikolic´ (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, paras. 30–32. Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 48. Ibid., para. 51.

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Jean-Bosco Barayagwiza and Laurent Semenza. The Working Group said that communications directed against international courts did not fall within its remit. Bagilishima had been acquitted but remained detained because States were not cooperating in granting him asylum. The Working Group noted that since filing the complaint he had obtained asylum, and said that while it was not competent to examine the conduct of international tribunals, it was in the position to address non-cooperation by States with the international criminal tribunals and indicated that it would be prepared to do so in the future.212 After unsuccessfully challenging the legitimacy of the ICTY before the Dutch courts,213 Slobodan Milosˇevic´ petitioned the European Court of Human Rights, arguing that the Netherlands, as host State of the tribunal, had violated his rights under the European Convention on Human Rights. The application was dismissed because Milosˇevic´ had failed to exhaust domestic remedies; he should have appealed the judgment of the Dutch court before proceeding to the European Court in Strasbourg.214 As is the case with other international human rights tribunals, the exhaustion of domestic remedies is a prerequisite to the admissibility of an application alleging that fundamental rights have been violated by a State. A somewhat more indirect challenge to the ICTY occurred at an early stage in proceedings, when an accused was still within the custody of a State that is party to one or other of the international instruments. There is a long line of authority establishing that in cases where they transfer individuals to other jurisdictions, by extradition or deportation, States bear a measure of responsibility for potential violations of human rights that may be committed after rendition. The threshold is a high one, however, being generally confined to accusations of torture that are, realistically, unlikely to arise in the context of an international criminal tribunal. The European Court of Human Rights has already rejected an application from an individual awaiting transfer to the ICTY who argued that the international tribunal was not an impartial and independent tribunal established by law. Dismissing the application, the European Court said: The Court recalls that exceptionally, an issue might be raised under Article 6 of the [European] Convention [on Human Rights] by an extradition decision in circumstances where the applicant risks suVering a flagrant denial of a fair trial. However, it is not an act in the nature of an extradition that is at stake here, as the applicant seems to think. Involved 212

213

214

‘Report of the Working Group on Arbitrary Detention’, UN Doc. E/CN.4/2003/8, paras. 49–60. Milosˇevic´ v. The Netherlands, Case No. KG. 01/975, ELRO No. AD 3266, Judgment, 31 August 2001, reprinted in (2002) 41 International Legal Materials 86. Milosˇevic´ v. The Netherlands (App. No. 77631/01), Admissibility Decision, 19 March 2002.

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here is the surrender to an international court which, in view of the content of its Statute and Rules of Procedure, oVers all the necessary guarantees including those of impartiality and independence.215

Of course, in cooperating with the international tribunals under their own legislative provisions, States need to ensure that the entire range of fundamental rights, including fair and public hearing, non-discrimination and so on are respected. Intervention by international human rights bodies can also be envisaged at the end of the process, when national systems again become involved as part of the detention process. As discussed elsewhere in this book, the international tribunals, which have prison facilities for persons only during the trial process, delegate much of the responsibility for facilitating service of prison sentences to cooperating governments. Many years ago, a petition filed by the wife of Rudolf Hess complaining about his detention pursuant to the Nuremberg judgment was dismissed by the European Commission of Human Rights on jurisdictional grounds.216 The case is probably distinguishable from the contemporary situation, in that Hess was detained in an international prison, subject to the jurisdiction of the four occupying powers, and not in a national prison more properly falling within the ambit of the European or international human rights monitoring systems. The ‘completion strategy’ of the tribunals may also result, again indirectly, in an assessment of their own human rights record by international human rights bodies. On 17 May 2005, an ICTY Referral Bench authorised the transfer of Radovan Stankovic´ to the authorities of Bosnia and Herzegovina for trial. Stankovic´ had been arrested on 10 July 2002, and held in custody by the ICTY since then. To be returned to Bosnia and Herzegovina after three years of detention in The Hague for a trial that never took place certainly raises prima facie issues of undue delay, for which the accused bears no responsibility himself. Were it not for the intervention of the ICTY, and the cooperation of the authorities of Bosnia and Herzegovina (albeit under a duty imposed by the Security Council), Stankovic´’s prosecution might well have been completed years earlier before the national courts.217 He may choose to complain about his treatment before the courts of Bosnia and Herzegovina and, eventually, at the European Court of Human Rights.

215 216 217

Naletilic´ v. Croatia (App. No. 51891/99), Admissibility Decision, 4 May 2000. Hess v. United Kingdom (App. No. 6231/73), (1975) 2 DR 72. Stankovic´ (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11bis, 17 May 2005.

14 Punishment

Nuremberg established many important principles, notably with respect to the definition of crimes against humanity as part of customary law or of general principles of law, to the unavailability of certain defences, such as superior orders and oYcial capacity or position, and to notions of criminal participation, such as the principle of command responsibility. However, the international tribunals at Nuremberg and Tokyo, and the successor trials held by various national military tribunals in the aftermath of the Second World War, left little in the way of guidelines applicable to sentencing issues in cases of war crimes and crimes against humanity. The tribunals occasionally appended a perfunctory final paragraph to their judgments reviewing ‘mitigating factors’, in the rare cases where these were deemed to be present. When the new generation of international criminal tribunals began to consider the issue of sentencing convicted persons, there was little precedent of any assistance. In the course of their work, the ad hoc tribunals have now built up a substantial body of authority on the question of sentencing, even if the whole area remains somewhat nebulous, and precise guidelines from the Appeals Chambers remain to be established. In 2001, the ICTY Appeals Chamber said that whether the sentencing practice of the Tribunal ‘is far enough advanced to disclose a pattern is not clear’.1 The process has been described as ‘essentially discretionary’,2 although ‘[s]entences of like individuals in like cases should be comparable’.3 The Appeals Chamber has often said that it will not intervene on sentencing appeals unless the Trial Chamber has committed ‘discernible error’.4

1

2 3 4

Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 96. Also: Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 237. Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 669. Ibid., para. 681. Also: Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 719. Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 22; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 680; Dragan Nikolic´ (IT94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 9.

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Neither the statutes nor the Rules provide any specific indication as to the length of an appropriate sentence. The ICTY and ICTR statutes state only that ‘the penalty imposed by the Trial Chamber shall be limited to imprisonment’.5 The SCSL Statute reaches much the same result but, reflecting the language of article 77 of the Rome Statute, declares that convicted persons shall be subject to ‘imprisonment for a specified number of years’.6 The statutes do not allow for imposition of other sanctions, such as a fine or penal servitude.7

Exclusion of capital punishment The death penalty has been in eVect in all three territories covered by the ad hoc tribunals. In Yugoslavia and Rwanda, the practice had declined and was virtually obsolete when the conflicts broke out. In Sierra Leone, on the other hand, capital punishment was alive and well. Indeed, at the height of the conflict several insurgents were executed following a dubious trial, and one from which there was no appeal. Sierra Leone has been condemned by both the African Commission on Human and Peoples’ Rights and the Human Rights Committee for the executions.8 But there is certainly no ambiguity about the exclusion of capital punishment in the statutes of the tribunals. This reflects the progress of the international human rights law norm promoting the abolition of the death penalty.9 An historic comparison can be made with the previous generation of international criminal tribunals, those of Nuremberg and Tokyo, where the death penalty was not only authorised but employed. Those tribunals were empowered to impose upon a convicted war criminal ‘death or such other punishment as shall be determined by it to be just’.10 5 6

7

8

9

10

ICTY Statute, art. 25; ICTR Statute, art. 24. SCSL Statute, art. 19(1). The provision does not apply to ‘juvenile oVenders’ who are, apparently, not subject to imprisonment at all. Rather, according to article 7(2), a juvenile oVender is subject to ‘care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies’. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 10; Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 12; Rutaganda (ICTR-96-3T), Judgment and Sentence, 6 December 1999, para. 448. Mansaraj et al. v. Sierra Leone (Nos. 839, 840 and 841/1998), UN Doc. CCPR/C/64/D/ 839, 840 & 841/19; Forum of Conscience v. Sierra Leone (No. 223/98), 28th Ordinary Session of the African Commission of Human and Peoples’ Rights, Cotonou, Benin, 23 October to 6 November 2000. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 6(6). See also: William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd edn, Cambridge: Cambridge University Press, 2003. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951)

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Paragraph 2 of the draft ICTY statute prepared by the CSCE rapporteurs declared: ‘The Court shall not pass sentence of capital punishment.’11 A subsequent Italian proposal expressed the same sentiment.12 The commentary on the Italian proposal for such a tribunal stated: ‘The death penalty has been excluded, in line with a principle that is by now part of the European legal heritage, as shown by Additional Protocol No. 6 to the European Convention on Human Rights.’ The Russian Federation’s proposal, quite similar to that of Italy, also explicitly excluded capital punishment.13 In a note verbale, Canada ‘strongly oppose[d] the imposition of the death penalty, notwithstanding that the oVence committed may be of a particularly heinous nature’.14 The Committee of French Jurists was also against the death penalty.15 The Netherlands stated that it ‘agree[d] with the other proposals already submitted to the secretary-general that [capital punishment] should be ruled out’.16 Two contributors to the debate who might have been expected to support the death penalty, the Organization of the Islamic Conference and the United States of America, avoided any direct confrontation. The Islamic Conference proposal left room for the death penalty, but made no explicit reference to it: ‘Penalties shall be based on ‘‘general principles’’ of law as they exist in the world’s major legal systems.’17 The United States proposal was similarly ambiguous on the issue of capital punishment: ‘The Trial Court shall have the power to sentence convicted persons to imprisonment or other appropriate punishment.’18 The Secretary-General, in his report

11

12

13

14

15

16

17

18

82 UNTS 279, annex, art. 27. See also: Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 4 Bevans 20, as amended, 4 Bevans 27 (‘Charter of the Tokyo Tribunal’), art. 16. Proposal for an International War Crimes Tribunal for the Former Yugoslavia by Rapporteurs (Corell – Tu¨rk – Thune) under the CSCE Moscow Human Rights Dimension to Bosnia–Herzegovina and Croatia, 9 February 1993, pp. 111–112. ‘Letter from the Permanent Representative of Italy to the United Nations Addressed to the Secretary-General’, UN Doc. S/25300, art. 7(1)–(2). ‘Letter from the Permanent Representative of the Russian Federation to the United Nations Addressed to the Secretary-General (April 5, 1993)’, UN Doc. S/25537, art. 22(3). ‘Letter dated 13 April 1993 from the Permanent Representative of Canada to the United Nations Addressed to the Secretary-General’, UN Doc. A/25594. ‘Letter dated 10 February 1993 from the Permanent Representative of France to the United Nations Addressed to the Secretary-General’, UN Doc. S/25266, para. 127(b). ‘Letter dated 30 April 1993 from the Permanent Representative of the Netherlands to the United Nations Addressed to the Secretary-General’, UN Doc. A/25716. ‘Letter from the Representatives of Egypt, the Islamic Republic of Iran, Malaysia, Pakistan, Saudi Arabia, Senegal and Turkey to the United Nations Addressed to the Secretary-General (March 31, 1993)’, UN Doc. A/47/920-S/25512. ‘Letter from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General (April 5, 1993)’, UN Doc. A/25575.

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to the Security Council on the draft statute, said: ‘The International Tribunal should not be empowered to impose the death penalty.’19 There was no preparatory work of a comparable nature in the drafting of the ICTR Statute. The issue of capital punishment arose during debate in the Security Council when the draft statute was being adopted.20 In the Security Council, Rwanda claimed there would be a fundamental injustice in exposing criminals tried by its domestic courts to execution if those tried by the international tribunal – presumably the masterminds of the genocide – would only be subject to life imprisonment. ‘Since it is foreseeable that the Tribunal will be dealing with suspects who devised, planned and organized the genocide, these may escape capital punishment whereas those who simply carried out their plans would be subjected to the harshness of this sentence’, said Rwanda’s representative. ‘That situation is not conducive to national reconciliation in Rwanda.’ But to counter this argument, the representative of New Zealand reminded Rwanda that ‘[f]or over three decades the United Nations has been trying progressively to eliminate the death penalty. It would be entirely unacceptable – and a dreadful step backwards – to introduce it here.’21 Even the United States, which was presiding over the Council at the time, stated that ‘indeed, on the death penalty we might even agree [with Rwanda, but] it was simply not possible to meet those concerns and still maintain broad support in the Council’.22 Prior to the 1994 genocide, Rwanda had become a de facto abolitionist State. The death penalty has not been imposed since the early 1980s, and in 1992 President Habyarimana systematically commuted all outstanding death sentences.23 The programme of the Rwandese Patriotic Front, which won military victory in July 1994, called for the abolition of capital punishment. Furthermore, in the 1993 Arusha peace accords, which have constitutional force in Rwanda, the government undertook to ratify the Second Optional Protocol.24 The Secretary-General’s report on the Sierra Leone Special Court said: ‘For a nation which has attested to atrocities that only few societies have witnessed, 19

20

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22 23 24

‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 112. See, e.g., Raymond Bonner, ‘Rwandans Divided on War-Crimes Plan’, New York Times, 2 November 1994, p. 10. UN Doc. S/PV.3453, p. 16. See: ‘Report on the Mission to Rwanda on the Issues of Violence Against Women in Situations of Armed Conflict’, UN Doc. E/CN.4/1998/54/ Add.1, para. 40. UN Doc. S/PV.3453, p. 17. Arreˆte´ pre´sidentiel no 103/105, Mesure de graˆce, JO 1992, p. 446, art. 1. ‘Protocole d’Accord entre le Gouvernement de la Re´publique Rwandaise et le Front Patriotique Rwandais portant sur les questions diverses et dispositions finales signe´ a` Arusha’, 3, August 1993, Journal oYciel, Year 32, No. 16, 15 August 1993, p. 1430, art. 15.

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it will require a great deal of persuasion to convince it that the exclusion of the death penalty and its replacement by imprisonment is not an ‘‘acquittal’’ of the accused, but an imposition of a more humane punishment.’25 There is no other suggestion in the record of this being an issue. In 2004, the final report of the Sierra Leone Truth and Reconciliation Commission called upon Sierra Leone to abolish capital punishment.26

Imprisonment Terms of imprisonment imposed by the tribunals have varied from a minimum of three years27 to a maximum of forty-six years.28 Both the ICTY and ICTR have imposed sentences of life imprisonment, the ICTR in the great majority of the cases, the ICTY rather more sparingly. Although the statutes make no mention of life imprisonment, the ICTY and ICTR RPE clarify the issue. Rule 101 of the RPE, adopted by the ICTY Plenary in February 1994, states: ‘A person convicted by the Tribunal may be sentenced to imprisonment for a term up to and including the remainder of his life.’ It was subsequently amended in a more gender-neutral formulation, and apparently to clarify the option of imposing a fixed term: ‘A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.’29 The text in the ICTR RPE is slightly diVerent: ‘A person convicted by the Tribunal may be sentenced to imprisonment for a fixed term or the remainder of his life.’ The unique terminology in the SCSL Statute (‘imprisonment for a specified number of years’) suggests that a term of life imprisonment is not an option. This is confirmed by the RPE, which amend Rule 101 of the ICTR RPE, and in eVect repeat the text of the provision in the Statute.30 There is no explanation for the exclusion of life imprisonment in the report of the Secretary-General. It is all the more puzzling in light of the second sentence of article 19(1), which says that in determining the terms of imprisonment, Trial Chambers shall have recourse to the practice regarding prison sentences of the International Criminal Tribunal for Rwanda. When the SCSL Statute was being drafted, the ICTR’s penchant for terms of life imprisonment was already apparent. Life imprisonment was included

25

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27 28

29 30

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 6. Report of the Sierra Leone Truth and Reconciliation Commission, Freetown, 5 October 2004, vol. 2, chapter 3, ‘Recommendations’, paras. 54–58. Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 245. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 726. The sentence was reduced on appeal to thirty-five years: Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 275. ICTY RPE, Rule 101(A) (revised 12 November 1997). With one curious modification, the word ‘specified’ is changed to ‘specific’.

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in the Rome Statute, but is to be used only ‘when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’.31 The preference, in the Rome Statute, is for a term of imprisonment not to exceed thirty years.32 The first person to be convicted by the ICTR received a sentence of life imprisonment. This had been proposed by the Prosecutor, and was imposed despite certain significant mitigating factors, including the accused’s ongoing cooperation with the Tribunal and his guilty plea.33 The Appeals Chamber said ‘that this sentence falls within the discretionary framework provided by the Statute and the Rules, and so sees no reason to disturb the decision of the Trial Chamber’.34 Subsequent life sentences imposed by the ICTR have been upheld on appeal. In Musema the Appeals Chamber said that even ‘[i]f a Trial Chamber finds that mitigating circumstances exist, it is not precluded from imposing a sentence of life imprisonment, where the gravity of the oVence requires the imposition of the maximum sentence provided for’.35 Niyitegeka argued that imposing a life sentence ‘failed to give the Appellant any credit whatsoever for the mitigating circumstances in the case and/or to provide for any element of rehabilitation and/or the public policy considerations of providing incentive to other accused charged before the Tribunal to deal with their cases in a way similar to that adopted by the Appellant’.36 But the Appeals Chamber responded that ‘nothing prevents a Trial Chamber from imposing a life sentence in light of the gravity of the crimes committed, even if the evidence in the case reveals the existence of mitigating circumstances’.37 In Jelisic´, the ICTY Appeals Chamber stated that ‘it falls within the Trial Chamber’s discretion to impose life imprisonment’.38 Perhaps this was a message to the Trial Chambers, as none of them had previously seen fit to pronounce such a sentence. The ICTY finally issued its first (and only) sentence of life imprisonment in 2003. In setting the sentence, the Trial Chamber referred to the abolition of capital punishment in Europe and in the territory of the former Yugoslavia, observing that if the crime had been prosecuted by national courts the maximum sentence would have been life imprisonment. It added: ‘The Trial Chamber notes that in many countries

31

32 33 34 35 36 37 38

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 77(1)(b). Ibid., art. 77(1)(a). Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998. Kambanda (ICTR-97-23-A), Judgment, 19 October 2000, para. 126. Musema (ICTR-96-13-A), Judgment, 16 November 2001, para. 396. Niyitegeka (ICTR-96-14-A), Appellant’s Brief, 23 December 2003, para. 215. Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 267. Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 100.

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the possibility of a review of a life sentence exists under certain conditions.’39 The Trial Chamber acknowledged that in some countries life imprisonment is forbidden by the constitution, but that the Statute ‘reflects the global policy of the United Nations aiming at the abolition of the death penalty and favours life imprisonment as the maximum sanction to be imposed’.40 The RPE establish that credit is to be given to the convicted person for the period, if any, during which he or she was detained in custody pending surrender to the Tribunal or pending trial or appeal.41 In Tadic´, the Appeals Chamber decided to extend this to time spent in custody before a national tribunal for proceedings related to ‘substantially the same criminal conduct’ as that for which he was prosecuted by the ICTY.42 The statutes require that the tribunals also ‘take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served’.43 The statutes authorise that ‘in addition to imprisonment’, the tribunals ‘may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners’.44 It seems that this provision has never been applied. Most convictions have been recorded for several oVences, either because the perpetrator was found guilty of several separate violations or because a single violation has been charged under diVerent provisions of the Statute.45 In the early years of the tribunals, distinct sentences were often imposed for diVerent oVences, although sentences were ordered to be served concurrently.46 The ICTY Appeals Chamber has promoted a ‘totality principle’, whereby the final principle should reflect the totality of the culpable conduct.47 But as the ICTY Appeals Chamber noted, it is within a Trial Chamber’s 39 40 41 42

43 44

45 46

47

Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 890. Ibid., para. 932. ICTY RPE, Rule 101(C); ICTR RPE, Rule 101(D); SCSL RPE, Rule 101(D). Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, paras. 38, 75. ICTY Statute, art. 10(3); ICTY RPE, Rule 101(B)(iv). ICTY Statute, art. 24(3); ICTR Statute, art. 23(3); SCSL Statute, art. 19(3). See also: ICTY RPE, Rule 105; ICTR RPE, Rule 105; SCSL RPE, Rule 104. For the conditions applicable to multiple convictions, see above at pp. 434–438. ICTY RPE, Rule 101(C) of the original ICTY RPE specified that the Trial Chamber was to determine whether or not a multiple sentence was to be served concurrently or consecutively. The provision was later repealed, although the same principle continues to apply. See ICTY RPE, Rule 87(C): ‘If the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment, it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently, unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.’

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discretion to impose sentences that are global,48 concurrent or consecutive, or a mixture of concurrent and consecutive.49 [S]entencing in relation to more than one oVence involves more than just an assessment of the appropriate period of imprisonment for each oVence and the addition of all such periods so assessed as a simple mathematical exercise. The total single sentence, or the eVective total sentence where several sentences are imposed, must reflect the totality of the oVender’s criminal conduct but it must not exceed that totality. Where several sentences are imposed, the result is that the individual sentences must either be less than they would have been had they stood alone or they must be ordered to be served either concurrently or partly concurrently.50

The Appeals Chamber has noted that in and of themselves, cumulative convictions involve additional punishment by reason of not only the social stigmatisation inherent in being convicted of that additional crime, but also the risk that, under the law of the State enforcing sentence, the eligibility of a convicted person for early release will depend to some extent upon the number or nature of the convictions entered.51

‘General practice’ in sentencing The ICTY and ICTR statutes direct that judges shall have ‘recourse to the general practice regarding prison sentences’. The RPE make this somewhat more precise, stating that the Trial Chambers may consider ‘the general practice regarding prison sentences in the courts of [the former Yugoslavia] [Rwanda]’.52 The SCSL Statute repeats the same idea, but it is formulated diVerently: ‘In determining the terms of imprisonment, the Trial Chamber shall, as appropriate, have recourse to the practice regarding prison sentences in the International Criminal Tribunal for Rwanda and the national courts of Sierra Leone.’ The SCSL has eliminated the provision in the RPE that, in eVect, echoes the text of the Statute.

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49 50 51

52

E.g., Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, paras. 805–807; Semanza (ICTR97-20-T), Judgment and Sentence, 15 May 2003, paras. 562–564; Kambanda (ICTR-9723-A), Judgment, 19 October 2000, paras. 101–102; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 989; Ntakirutimana et al. (ICTR-96-10 and ICTR96-17-T), Judgment, 21 February 2003, para. 917; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 483. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 428–430. Mucic´ et al. (IT-96-21-Abis), Judgment on Sentence Appeal, 8 April 2003, para. 46. Ibid., para. 25. See: Olaoluwa Olusanya, Double Jeopardy Without Parameters: Re-Characterisation in International Criminal Law, Antwerp: Intersentia, 2004, pp. 168–171. ICTY RPE, Rule 101(b)(iii); ICTR RPE, Rule 101(b)(iii).

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The statutes require the Trial Chambers to consider the relevant sentencing practices of the national courts in the former Yugoslavia, Rwanda and Sierra Leone, as the case may be, as an aid in determining the appropriate sentence, but they do not oblige them to do this.53 The tribunals can even impose a sentence in excess of that which would be applicable under the national law.54 But their reference to national sentencing practice must certainly be more than merely perfunctory. As was stated by an ICTY Trial Chamber in Kunarac: Although the Trial Chamber is not bound to apply the sentencing practice of the former Yugoslavia, what is required certainly goes beyond merely reciting the relevant criminal code provisions of the former Yugoslavia. Should they diverge, care should be taken to explain the sentence to be imposed with reference to the sentencing practice of the former Yugoslavia, especially where international law provides no guidance for a particular sentencing practice. The Trial Chamber notes that, because very important underlying diVerences often exist between national prosecutions and prosecutions in this jurisdiction, the nature, scope and the scale of the oVences tried before the International Tribunal do not allow for an automatic application of the sentencing practices of the former Yugoslavia.55

This provision concerning ‘general practice’ was originally included in the ICTY Statute as a response to concerns about retroactive sentences. It was argued that the maxim nulla poena sine lege required the international tribunals to harmonise their sentences with those of the law in force in the territories where the crimes were committed at the time of their perpetration.56 Several Trial Chambers have invoked the national practice not to protect the accused against an excessive sentence but rather as justification for the harshness of the penalty. For example, an ICTY Trial Chamber, in the Tribunal’s very first sentencing ruling, said that the ‘reference to the general practice regarding prison sentences applied by the courts of the former 53

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Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 813, 816; Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 21; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 377; Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, paras. 116–117; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004, para. 681. Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, paras. 96–100; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 157–165. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 829. This formulation has been endorsed by the Appeals Chamber: Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 260; Blasˇkic´ (IT-95-14-A), Judgment, 29 July 2004 para. 682; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 347–349; Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 21; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 813; Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 418. The relevant authorities are cited in: William A. Schabas, ‘Perverse EVects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals’, (2000) 11 European Journal of International Law 521.

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Yugoslavia is, in fact, a reflection of the general principle of law internationally recognized by the community of nations whereby the most severe penalties may be imposed for crimes against humanity’.57 In Kayishema and Ruzindana, the ICTR imposed terms of life imprisonment and twenty-five years respectively on two ge´nocidaires for their key role in atrocities in Kibuye prefecture during the events of 1994, noting that had they been sentenced in Rwanda they would have been exposed to the death penalty.58 Few of the decisions have done more than make brief and summary references to sentencing practice in the relevant State. An exception is the Dragan Nikolic´ sentencing judgment, in which the ICTY Trial Chamber commissioned an expert opinion from a German academic on both the range of sentences and sentencing practice in the component States of the former Yugoslavia, as well as that in Member States of the Council of Europe and other States. The Trial Chamber was confronted with a plea bargain between Prosecutor and defence counsel, and a joint submission that Nikolic´ be sentenced to fifteen years. It noted that on the territory of the former Yugoslavia, Nikolic´ would have been subject to a sentence of twenty years’ imprisonment or, alternatively, capital punishment.59 Referring to the expert report, the Trial Chamber observed that in other countries crimes of the sort committed by the accused were subject to penalties of death or life imprisonment.60 This led the Trial Chamber to conclude that were it not for some mitigating factors, the accused deserved a sentence of life imprisonment,61 and in the end it pronounced a term of twenty-three years.62

Purposes of sentencing Classical criminal law theory proposes several objectives for punishment: deterrence, retribution, protection of the public and rehabilitation. Some of these are echoed in the resolutions setting up the two international tribunals. For example, referring implicitly to the notion of deterrence, the Security Council aYrmed its conviction that the work of the ICTY ‘will contribute to ensuring that such violations are halted’.63 The eVective prosecution and 57 58 59

60 61 62

63

Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 40. Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 150–156. The same expert report was admitted in at least one other case and before the same Trial Chamber, by consent of the parties: Deronjic´ (IT-02-61-S), Sentencing Judgment, 30 March 2004, para. 22. Dragon Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 166–173. Ibid., para. 214. It was reduced to twenty years by the Appeals Chamber: Dragan Nikolic´ (IT-02-60/1-A), Judgment on Sentencing Appeal, 4 February 2005. UN Doc. S/RES/827 (1993), preamble.

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punishment of oVenders is therefore intended to deter others from committing the same crimes, and perhaps to convince those already engaged in such behaviour that they should stop. The Security Council also alluded to retribution when it said that the violations must be ‘eVectively redressed’.64 However, the statutes themselves are rather laconic as to the criteria that should guide the judges in establishing appropriate levels of punishment, and they make no specific mention of such factors as deterrence, whether general or individual, or retribution. They state simply: ‘In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the oVence and the individual circumstances of the convicted person.’65 In Erdemovic´, an ICTY Trial Chamber turned to the declarations of Security Council members at the time Resolution 827 was adopted, in May 1993. These show, according to the Trial Chamber, that they saw the International Tribunal as a powerful means for the rule of law to prevail, as well as to deter the parties to the conflict in the former Yugoslavia from perpetrating further crimes or to discourage them from committing further atrocities. Furthermore, the declarations of several Security Council Members were marked by the idea of a penalty as proportionate retribution and reprobation by the international community of those convicted of serious violations of international humanitarian law.66

The Trial Chamber continued: The International Tribunal’s objectives as seen by the Security Council – i.e. general prevention (or deterrence), reprobation, retribution (or ‘just deserts’), as well as collective reconciliation – fit into the Security Council’s broader aim of maintaining peace and security in the former Yugoslavia. These purposes and functions of the International Tribunal as set out by the Security Council may provide guidance in determining the punishment for a crime against humanity.67

The sentencing case law of the tribunals has been largely concentrated on the two objectives of deterrence and retribution. Sometimes these are expressed as twin objectives, of more or less equal importance. As an ICTY Trial Chamber said in one of the early cases: It is the mandate and the duty of the International Tribunal, in contributing to reconciliation, to deter such crimes and to combat impunity. It is 64 65 66

67

Ibid. ICTY Statute, art. 24(2); ICTR Statute, art. 23(2); SCSL Statute, art. 19(2). Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 58. The statements are contained in UN Doc. S/PV/3175. The Trial Chamber referred to comments by France, Morocco, Pakistan, the United Kingdom, Hungary and New Zealand. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 58.

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not only right that punitur quia peccatur (the individual must be punished because he broke the law) but also punitur ne peccatur (he must be punished so that he and others will no longer break the law). The Trial Chamber accepts that two important functions of the punishment are retribution and deterrence.68

ˇ elebic´i, an ICTY Trial But is one more important than the other? In C Chamber said that ‘[r]etributive punishment by itself does not bring justice’ and that ‘[d]eterrence is probably the most important factor in the assessment of appropriate sentences for violations of international humanitarian law’.69 But subsequently, the Appeals Chamber said that while it accepted ‘the general importance of deterrence as a consideration in sentencing for international crimes’, it should ‘not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal’.70 According to the Appeals Chamber, ‘[a]n equally important factor is retribution. This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.’71 Thus, said the Appeals Chamber, ‘a sentence of the International Tribunal should make plain the condemnation of the international community’ and show ‘that the international community was not ready to tolerate serious violations of international humanitarian law and human rights’.72 A focus on retribution is at odds with much progressive thinking among criminologists, as well as with international human rights law, which states that ‘[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation’.73 Some judgments have taken pains to formulate the concept of retribution in

68

69 70

71 72 73

Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 288. See also Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 64, where the Trial Chamber held deterrence and retribution to be the most important purposes for sentences imposed in respect of crimes against humanity. Also: Rutaganda (ICTR-963-T), Judgment and Sentence, 6 December 1999, para. 456; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 28; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 986. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1231 and 1234. Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 48. Also: Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 185; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 801, 806; Todorovic´ (IT-95-9/ 1-S), Sentencing Judgment, 31 July 2001, paras. 29–30; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 508; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 840–841. Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 185. Ibid., references omitted. International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 10(3).

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the mildest manner possible. Thus, in Dragan Nikolic´, an ICTY Trial Chamber said that retribution should be viewed as an objective, reasoned and measured determination of an appropriate punishment which properly reflects the culpability of the oVender, having regard to the intentional risk-taking of the oVender, the consequential harm caused by the oVender, and the normative character of the oVender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.74

In Momir Nikolic´, an ICTY Trial Chamber explained that [c]lassical retributive theory requires that the punishment be proportionate to the harm done. In light of the purposes of the Tribunal and international humanitarian law generally, retribution is better understood as the expression of condemnation and outrage of the international community at such grave violations of, and disregard for, fundamental human rights at a time that people may be at their most vulnerable, namely during armed conflict.75

Recently, another ICTY Trial Chamber has said that ‘[r]etribution must be understood as reflecting a fair and balanced approach to the exaction of punishment for wrongdoing. This means that the penalty must be proportionate to the wrongdoing; in other words, the punishment must fit the crime.’76 Another approach is to use the ‘just deserts’ concept: ‘The Trial Chamber also adopts retribution, or ‘‘just deserts’’, as legitimate grounds for pronouncing a sentence for crimes against humanity, the punishment having to be proportional to the gravity of the crime and the guilt of the accused.’77 With respect to deterrence, some Trial Chambers have noted that this is a reference to ‘general deterrence’ as opposed to ‘specific deterrence’ or individual deterrence.78 In national systems, where the oVender manifests a social pathology, specific deterrence may assume more importance, of course.

74

75 76

77 78

Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 140 (emphasis in the original). Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 86. Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 1090. Also: Todorovic´ (IT-959/1), Sentencing Judgment, 31 July 2001, para. 29; Simic´ (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, para. 33. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 65. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 273. Also: Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 28, endorsed in Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 66. See also Kayishema et al. (ICTR-95-1-T), Sentence, 21 May 1999, para. 2; Ntakirutimana et al. (ICTR-9610 and ICTR-96-17-T), Judgment, 21 February 2003, para. 882; Niyitegeka (ICTR-9614-T), Judgment and Sentence, 16 May 2003, para. 484.

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Individual deterrence is intended to discourage an oVender from recidivism after the sentence has been served and he or she has been released. It is surely of minor importance in the context of international crimes, whose commission depends so much upon a political context the existence of which goes well beyond the will of any particular individual. The purpose of general deterrence is to ensure that those who would consider committing similar crimes are dissuaded from doing so.79 At the international tribunals, the hope is that the likelihood of criminal punishment will discourage others from committing atrocities. According to one ICTY Trial Chamber: During times of armed conflict, all persons must now be more aware of the obligations upon them in relation to fellow combatants and protected persons, particularly civilians. Thus, it is hoped that the Tribunal and other international courts are bringing about the development of a culture of respect for the rule of law and not simply the fear of the consequences of breaking the law, and thereby deterring the commission of crimes.80

This seems like a good bet, and worth the eVort, although whether criminal punishment actually deters those who commit crimes against humanity in the context of conflict is a proposition that rests on faith rather than empirical evidence. The ICTY Appeals Chamber has said that deterrence is particularly relevant to ‘commanders in similar situations in the future’.81 Nevertheless, it has cautioned Trial Chambers that ‘this factor must not be accorded undue prominence in the overall assessment’.82 There is always a danger that too great a focus on general deterrence distorts the criminal justice process, and the individual becomes ‘simply an instrument to achieving the goal of the establishment of the rule of law’.83 In Jokic´, an ICTY Trial Chamber said ‘it would be unfair, and would ultimately weaken the respect for the legal order as a whole, to increase the punishment imposed on a person merely for the purpose of deterring others’.84 Other purposes are also relevant, and find some support in the case law, although their role is secondary. For example, there are isolated references to ‘individual and general aYrmative prevention aimed at influencing the legal

79

80

81 82

83 84

Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 45; Stakic´ (IT-97-24-T), Judgment, 31 July 2003, para. 900. Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 89 (emphasis in the original). Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 1073. Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 48; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 185. Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 46. Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 90. Jokic´ (IT-01-42/1-S), Sentencing Judgment, 18 March 2004, para. 34. Also: Babic´ (IT-0372-S), Sentencing Judgment, 29 June 2004, para. 45.

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awareness of the accused, the victims, their relatives, the witnesses, and the general public in order to reassure them that the legal system is being implemented and enforced’.85 Another factor referred to in some judgments is ‘public reprobation and stigmatisation by the international community’.86 This is sometimes referred to as ‘social defence’.87 Perhaps it reflects an evolution in the thinking of the tribunals that this aspect of sentencing has been receiving greater attention. An ICTY Trial Chamber said, in Kupresˇkic´, that another relevant sentencing purpose is to show the people of not only the former Yugoslavia, but of the world in general, that there is no impunity for these types of crimes. This should be done in order to strengthen the resolve of all involved not to allow crimes against international humanitarian law to be committed as well as to create trust in and respect for the developing system of international justice.88

ˇ erkez, the ICTY Appeals Chamber said: In Kordic´ and C One of the most important purposes of a sentence imposed by the International Tribunal is to make it abundantly clear that the international legal system is implemented and enforced. This sentencing purpose refers to the educational function of a sentence and aims at conveying the message that rules of humanitarian international law have to be obeyed under all circumstances. In doing so, the sentence seeks to internalise these rules and the moral demands they are based on in the minds of the public. The reprobation or stigmatisation associated with a sentence is closely related to the purpose of aYrmative prevention. Similarly, putting an end to impunity for the commission of serious violations of international humanitarian law refers to aYrmative prevention.89

Rehabilitation is acknowledged as a legitimate purpose in sentencing, but there seems little real commitment to its importance.90 A few Trial Chambers have expressed enthusiasm for the concept: The Trial Chamber finds that punishment must strive to attain a further goal: rehabilitation. The Trial Chamber observes that the concept of rehabilitation can be thought of broadly and can encompass all stages of the criminal proceedings, and not simply the post-conviction stage. Particularly in cases where the crime was committed on a discriminatory basis,

85 86 87 88 89

90

Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 1073. Ibid. Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 1092. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 848. Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 1080–1081 (references omitted). Ibid., para. 1073.

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like this case, the process of coming face-to-face with the statements of victims, if not the victims themselves, can inspire – if not reawaken – tolerance and understanding of ‘the other’, thereby making it less likely that if given an opportunity to act in a discriminatory manner again, an accused would do so. Reconciliation and peace would thereby be promoted.91

Judge Mumba wrote, in a separate opinion filed with a sentencing decision following a guilty plea, where Judge Schomburg, dissenting, wanted to impose twenty years but the majority settled for half of that: In addition to the objectives of prevention and deterrence, in imposing a sentence, another key consideration is the rehabilitation of the convicted person. A guilty plea is accepted as a first step to rehabilitation of the oVender and a positive factor towards reconciliation of the oVended community . . . Vengeance may be manifested in terms of a harsh sentence for an accused person who has pleaded guilty. In my humble opinion, rehabilitation, after turmoil, may serve to reduce the incidence of political instability and conflict.92

ˇ elebic´i that ‘although both national But the ICTY Appeals Chamber said in C jurisdictions and certain international and regional human rights instruments provide that rehabilitation should be one of the primary concerns for a court in sentencing, this cannot play a predominant role in the decision-making ˇ erkez the Appeals process of a Trial Chamber of the Tribunal’.93 In Kordic´ and C Chamber said that ‘[i]n the light of the gravity of many of the crimes under the International Tribunal’s jurisdiction, the weight of rehabilitative considerations may be limited in some cases’.94 The Appeals Chamber continued: ‘It would violate the principle of proportionality and endanger the pursuit of other sentencing purposes if rehabilitative considerations were given undue prominence in the sentencing process.’95 An explicit role for rehabilitation is recognised in determining eligibility of a convicted person for pardon or commutation of sentence. According to the Rules of Procedure and Evidence, ‘[i]n determining whether pardon or commutation is appropriate, the President shall take into account, inter alia,

91

92 93

94 95

Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 93. Also: Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, para. 34; Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, para. 18; Babic´ (IT-03-72-S), Sentencing Judgment, 29 June 2004, para. 46. Deronjic´ (IT-02-61-S), Separate Opinion of Judge Mumba, 30 March 2004, paras. 2–3. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 806 (emphasis in original; footnote omitted), referring to International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 10(3), ‘General Comment 21/44’, UN Doc. CCPR/C/21/Rev.1/ Add.3 and American Convention on Human Rights, (1978) 1144 UNTS 123, art. 5(6). Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 1079. Ibid., para. 1073.

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the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor’.96 In a recent judgment of the ICTR, a Trial Chamber invoked yet another objective of sentencing when it said that ‘[r]econciliation amongst Rwandans, towards which the processes of the Tribunal should contribute, must also weigh heavily in the Chamber’s mind when passing sentence’.97 As one ICTY Trial Chamber explained, these other aims of sentencing have not yet achieved the same dominance as retribution and deterrence in the sentencing history of this Tribunal, even though, in the opinion of the Trial Chamber, they are important for achieving the goals of this Tribunal. Such factors have tended to be dealt with as mitigating or aggravating factors, with social defence intermingling with the understanding that this Tribunal has of the aim of deterrence.98

No hierarchy of crimes All of the oVences within the jurisdiction of the tribunals are serious, and the tribunals have largely rejected the idea that there is a hierarchy between genocide and crimes against humanity, or between crimes against humanity and war crimes.99 Early decisions showed division among the judges on this point. For example, an ICTR Trial Chamber famously described genocide as ‘the crime of crimes’.100 ‘The heinous nature of the crime of genocide and its absolute prohibition makes [sic] its commission inherently aggravating’, it

96 97

98 99

100

ICTY RPE, Rule 125. Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, para. 754. See also: Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 554. Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 1092. Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 69; Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, paras. 243, 247. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 16. Also: Akayesu (ICTR-96-4-T), Sentencing Judgment, 2 October 1998; Rutaganda (ICTR-96-3T), Judgment and Sentence, 6 December 1999, para. 451; Serushago (ICTR-98-39-S), Sentence, 5 February 1999, para. 15; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 981. The ICTR Appeals Chamber implied that it did not agree with the expression, given the lack of a hierarchy of crimes in the Statute: Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 367; Rutaganda (ICTR-963-A), Judgment, 26 May 2003, para. 590. Subsequently, it cited the expression with approval: Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 53. See also: Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 2; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 800.

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stated in its first genocide sentence.101 Judge Wald of the ICTY Appeals Chamber said that ‘genocide is at the apex’ of a hierarchy of ‘seriousness’.102 But in Serushago, after noting that in theory the sentences are the same for each of the three categories of crimes, namely a maximum term of life imprisonment,103 an ICTR Trial Chamber declared: [I]t is diYcult to rank genocide and crimes against humanity as one being the lesser of the other in terms of their respective gravity. Therefore, the Chamber held in these two judgements that both crimes against humanity, already punished by the Nuremberg and Tokyo tribunals, and genocide, a concept defined later, are crimes which both particularly shock the collective conscience. In fact, they are inhumane acts committed against civilians on a discriminatory basis.104

In Kambanda, an ICTR Trial Chamber described war crimes as ‘lesser crimes’ alongside genocide or crimes against humanity.105 The Appeals Chamber of the ICTY, after initially encouraging such a position,106 has now disapproved of the view that war crimes are inherently less serious than crimes against humanity. ‘[T]here is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter’, it said. ‘It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes.’107 Even the argument that crimes resulting in loss of life are inherently more serious, and therefore attract higher sentences, was considered by the ICTY Appeals Chamber to be ‘too rigid and mechanistic’.108 But there remain suggestions that within the definitions of crimes themselves there are important gradations. Thus, an ICTY Trial Chamber considered the crime against humanity of persecution to be inherently more serious than other punishable acts falling within the scope of crimes against

101 102

103 104 105 106

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Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 42. Jelisic´ (IT-95-10-A), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 13. Also: Krstic´ (IT-98-33-T), Judgment, 2 August 2001, paras. 699–700. Serushago (ICTR-98-39-S), Sentence, 5 February 1999, para. 13. Ibid., para. 14. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 14. Erdemovic´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, paras. 20–21. Contra: Erdemovic´ (IT-96-22-S), Separate Opinion of Judge Shahabuddeen, 5 March 1998, para. 20; Tadic´ (IT-94-1-T), Separate Opinion of Judge Robinson, 11 November 1999. Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 247; Tadic´ (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 69. Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 246.

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humanity.109 There is authority for the proposition that a failure to punish torture is more serious than a failure to punish pillage.110 Olaoluwa Olusanya has argued that the reluctance to distinguish between war crimes and crimes against humanity, and more particularly the persecution-type crimes against humanity that include an element of discriminatory intent or motive, is responsible for a failure of the tribunals to develop a fair and consistent sentencing regime.111

Sentencing factors The statutes state that ‘[i]n imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the oVence and the individual circumstances of the convicted person’.112 The Appeals Chamber has described this as the ‘primary consideration’ and stated that the ‘sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused’.113 The case law also supports the proposition that individual circumstances are of secondary importance. In Blasˇkic´, an ICTY Trial Chamber explained: Keeping in mind the mission of the Tribunal, it is appropriate to attribute a lesser significance to the specific personal circumstances. Although they help to explain why the accused committed the crimes they do not in any event mitigate the seriousness of the oVence. Furthermore, these circumstances may aggravate the responsibility of an accused depending on the position he held at the time of the acts and on his authority to prevent the commission of crimes.114

Judgments emphasise that sentencing is ‘a discretionary decision and that it is inappropriate to set down a definitive list of sentencing guidelines’.115 In other words, while the Trial Chambers ‘should take into account’ the factors listed in the Statute, ‘the sentence must always be decided according to the

109

110 111

112 113

114 115

Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 232. Also: Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 785; Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 113. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 732. Olaoluwa Olusanya, Sentencing War Crimes and Crimes Against Humanity under the International Criminal Tribunal for the Former Yugoslavia, Groningen: Europa Law Publishing, 2005. ICTY Statute, art. 24(2); ICTR Statute, art. 23(2); SCSL Statute, art. 19(2). Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 731, citing Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 852; and Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 182. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 765. Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 242.

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facts of each particular case and the individual guilt of the perpetrator’.116 The Appeals Chambers are not well disposed to intervention in the sentencing decisions of the Trial Chambers, although they will of course revise a sentence when changes to the verdict itself require a reassessment of what is fit punishment. They will not intervene unless there is a ‘discernible error’.117 They have also said that sentences should not be ‘capricious or excessive’. These terms describe a sentence that is ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same oVences’. But, said the Appeals Chamber, ‘it is diYcult and unhelpful to lay down a hard and fast rule on the point; there are a number of variable factors to be considered in each case’.118 According to an ICTY Trial Chamber, ‘[t]he determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime’.119 The determination that the gravity of the oVence is the ‘primary consideration’ has been used to justify a relatively harsh sentence, even when there are compelling personal circumstances and when the accused’s position in the hierarchy is not that significant. In Aleksovski, the Appeals Chamber relied on the ‘gravity of the oVence’ when it granted the Prosecutor’s appeal on sentence, increasing a two-and-a-half-year term imposed by the Trial Chamber to seven years: [T]he Trial Chamber erred in not having suYcient regard to the gravity of the conduct of the Appellant. His oVences were not trivial. As warden of a prison he took part in violence against the inmates. The Trial Chamber recognised the seriousness of these oVences but stated that his participation was relatively limited. In fact, his superior responsibility as a warden seriously aggravated the Appellant’s oVences. Instead of preventing it, he involved himself in violence against those whom he should have been protecting, and allowed them to be subjected to psychological terror. He also failed to punish those responsible. Most seriously, the Appellant, by participating in the selection of detainees to be used as human shields and for trench digging, as he must have known, was putting at risk the lives of those entrusted to his custody. Thus, the instant case is one of a prison warden who personally participated in physical violence against detainees

116 117

118 119

Ibid., para. 241; Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 101. Tadic´ (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 22. Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 96. Kupresˇkic´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 852. See also: Jelisic´ (IT95-10-A), Judgment, 5 July 2001, para. 94; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 731; Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 182; Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 249; Kambanda (ICTR97-23-A), Judgment, 19 October 2000, para. 125.

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when, by virtue of his rank, he should have taken steps to prevent or punish it. The Appellant did more than merely tolerate the crimes as a commander; with his direct participation he provided additional encouragement to his subordinates to commit similar acts. The combination of these factors should, therefore, have resulted in a longer sentence and should certainly not have provided grounds for mitigation.120

In another case where a sentence was revised on appeal, the Appeals Chamber held that ‘proof of active participation by a superior in the criminal acts of subordinates adds to the gravity of the superior’s failure to prevent or punish those acts and may therefore aggravate the sentence’.121 The Appeals Chamber found evidence of the Trial Chamber’s inadequate attention to the gravity of the oVence in the fact that it imposed identical individual sentences in relation to each count rather than a single global sentence; ‘such an approach fails to take account of the essential consideration that the gravity of the failure to prevent or punish is in part dependent on the gravity of the underlying subordinate crimes’.122 And yet the Trial Chambers have imposed relatively clement sentences on oVenders despite evidence of the extreme gravity of their acts. For example, Bosnian Serb leader Biljana Plavsˇic´ was sentenced to eleven years, after the Trial Chamber conceded that this is a crime of utmost gravity, involving as it does a campaign of ethnic separation which resulted in the death of thousands and the expulsion of thousands more in circumstances of great brutality. The gravity is illustrated by: the massive scope and extent of the persecutions; the numbers killed, deported and forcibly expelled; the grossly inhumane treatment of detainees; and the scope of the wanton destruction of property and religious buildings.123

Similarly, Drazen Erdemovic´ was sentenced to five years for his active participation in summary executions – perhaps 70 to 100 can be attributed to him alone – during the Srebrenica massacre in July 1995. The Trial Chamber focused on various mitigating factors, and never really considered the objective gravity of the oVence.124 The statutes declare that sentence is also to be determined in light of ‘the individual circumstances of the convicted person’. As an ICTR Trial Chamber explained, in Kambanda: 120 121 122 123

124

Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 183. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 736. Ibid., para. 741. Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 52. See: Nancy Amoury Combs, ‘International Decisions: Plavsˇic´’, (2003) 97 American Journal of International Law 929. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998.

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[I]t is true that among the joint perpetrators of an oVence or among the persons guilty of the same type of oVence, there is only one common element: the target oVence which they committed with its inherent gravity. Apart from this common trait, there are of necessity fundamental diVerences in their respective personalities and responsibilities: their age, their background, their education, their intelligence, their mental structure . . . It is not true that they are a priori subject to the same intensity of punishment.125

Individualisation of the sentence is a somewhat contradictory standard. On the one hand, it argues against comparisons between cases, unless they relate to the same oVence committed in substantially similar conditions.126 At the same time, consideration of individual circumstances should lead to consistency, something that is ‘an important reflection of the notion of equal justice’.127 An ICTR Trial Chamber said that ‘as far as the individualization of penalties is concerned, the judges of the Chamber cannot limit themselves to the factors mentioned in the Statute and the Rules. Here again, their unfettered discretion in assessing the facts and attendant circumstances should enable them to take into account any other factor that they deem pertinent.’128 Although uncommon, one ICTY Trial Chamber has requested that experts be appointed to provide a report on the accused person’s ‘socialisation’, including details of his childhood, the conditions under which he grew up, his school and work career and relations with friends and family.129 An expert designated by the Registrar presented a written report and also testified before the Trial Chamber. The expert opinion assisted the Trial Chamber in assessing the validity of certain mitigating factors, including the guilty plea and expression of remorse.130 In another case, a report was admitted by consent of the parties, and the expert did not testify.131

Aggravating and mitigating circumstances There are two references to mitigating circumstances in the statutes. OYcial position of an accused is not to mitigate punishment.132 On the other hand, the fact that a person acted pursuant to superior orders ‘may be considered in

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Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 29. Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 101. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 756–757. Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 458–459. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 39. Ibid., paras. 236, 238, 240, 251–252, 268. Deronjic´ (IT-02-61-S), Sentencing Judgment, 30 March 2004, para. 20. ICTY Statute, art. 7(2); ICTR Statute, art. 6(2); SCSL Statute, art. 6(2).

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mitigation of punishment if the International Tribunal determines that justice so requires’.133 The RPE instruct the Trial Chambers that in addition to the factors that the Statute requires them to consider, that is, the gravity of the oVence and the individual circumstances of the oVender, they are also to take into account ‘such factors as: (i) any aggravating circumstances; (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction’.134 In practice, this is just another way of examining the gravity of the oVence and the individual circumstances of the oVender. For example, the ‘gravity’,135 the ‘extreme gravity’136 or the ‘intrinsic gravity’137 of an oVence have been invoked in many judgments as an ‘aggravating circumstance’. The Appeals Chambers have established that aggravating circumstances must be proven beyond a reasonable doubt, but that mitigating circumstances need only be established on a balance of probabilities.138 There is no exhaustive list of aggravating and mitigating factors in the RPE. Because such factors have not been defined, reliance must be placed on earlier decisions, although Trial Chambers have considerable discretion in determining what they wish to consider.139 By contrast, the RPE of the International Criminal Court attempt to enumerate the relevant factors. In that instrument, aggravating factors are to include: relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature; abuse of power or oYcial capacity; commission of the crime where the victim is particularly defenceless; commission of the crime with particular cruelty or where there were multiple victims; commission of the crime for a discriminatory motive. Examples of mitigating factors in the ICC RPE are circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress, and the convicted person’s conduct after the act, including any eVorts by the person to compensate the victims and any cooperation with the Court.140 Case law refers to a number of important aggravating factors, of which probably the most important is abuse of power or oYcial capacity. Although 133 134 135

136 137 138

139 140

ICTY Statute, art. 7(4); ICTR Statute, art. 6(4); SCSL Statute, art. 6(4). ICTY RPE, Rule 101(B); ICTR RPE, Rule 101(B); SCSL RPE, Rule 101(B). Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 468–470; Ruggiu (ICTR-97-32-T), Judgment, 1 June 2000, paras. 47–51. Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 27–30. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 61–62. Delalic´ et al. (IT-96-2.1-A), Judgment, 20 February 2001, para. 763; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 847; Simic´ (IT-959/2-S), Sentencing Judgment, 17 October 2002, para. 40. Naletilic´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 742. ‘Rules of Procedure and Evidence’, ICC-ASP/1/3, p. 10, Rule 145(2)(e).

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the judgments have not made the link, there is obviously a relationship between the importance of oYcial capacity and the references in the Statute: oYcial capacity is not a mitigating factor, whereas obedience to superior orders may be. An ICTY Trial Chamber said that ‘[a] distinction is to be made between the individuals who allowed themselves to be drawn into a maelstrom of violence, even reluctantly, and those who initiated or aggravated it and thereby more substantially contributed to the overall harm’.141 In Tadic´, the ICTY Appeals Chamber observed that the position of the oVender ‘in the command structure, when compared to that of his superiors, i.e. commanders, or the very architects of the strategy of ethnic cleansing, was low’.142 An ICTY Trial Chamber in Blasˇkic´ said that ‘[c]ommand position must . . . systematically increase the sentence or at least lead the Trial Chamber to give less weight to the mitigating circumstances, independently of the issue of the form of participation in the crime’.143 But in Krstic´, another Trial Chamber was somewhat more nuanced: A high rank in the military or political field does not, in itself, lead to a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence than an individual acting on his or her own. The consequences of a person’s acts are necessarily more serious if he is at the apex of a military or political hierarchy and uses his position to commit crimes.144

Many judgments refer to the accused’s ‘leadership role’145 as an aggravating factor. Sometimes, reference is made to the importance of the person in the community, and participation in crimes is treated as an abuse of a position of authority or trust.146 The aggravating factor does not only apply to political

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Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 711. Tadic´ (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, paras. 55–56. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 788. Also: Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 57; Simic´ (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, para. 67. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 709. Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 27–30; Kambanda (ICTR97-23-S), Judgment and Sentence, 4 September 1998, paras. 61–62; Dragan Nikolic´ (IT94-2-S), Sentencing Judgment, 18 December 2003, paras. 179–183; Babic´ (IT-03-72-S), Sentencing Judgment, 29 June 2004, para. 62. Akayesu (ICTR-96-4-T), Sentence, 2 October 1998; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 736–737; Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, paras. 138–140; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 44; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 468–470; Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 573; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 499.

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and military leaders, but also to prominent personalities in business,147 religion,148 intellectual life149 and the media.150 Aggravating factors are often closely related to the victims of the crimes. In Krstic´, an ICTY Trial Chamber said that ‘the circumstance that the victim detainees were completely at the mercy of their captors, the physical and psychological suVering inflicted upon witnesses to the crime, the ‘‘indiscriminate, disproportionate, terrifying’’ or ‘‘heinous’’ means and methods used to commit the crimes are all relevant in assessing the gravity of the crimes . . . Appropriate consideration of those circumstances gives ‘‘a voice’’ to the suVering of the victims.’151 Another Trial Chamber stated ‘that these oVences were committed against particularly vulnerable and defenceless women and girls is also considered in aggravation’.152 Notice has been taken of the degree of suVering and harm caused to victims,153 lack of contrition, regret or sympathy for the victims,154 the actual number of victims,155 and the fact that the victim was a civilian detainee,156 a young victim of a sexual assault,157 or that women and children were victims.158 But the impact on relatives of the victim is ‘irrelevant to the culpability of the oVender’ and it ‘would be unfair to consider such eVects in determining a sentence’.159

147 148

149 150 151 152

153

154

155 156 157

158 159

Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 1001–1004. Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 900–905. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1099. Ibid., para. 1100. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 703. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 867; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 352; Dragan Nikolic´ (IT94-2-S), Sentencing Judgment, 18 December 2003, paras. 184–185. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 70; Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 20; Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 229; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1225, 1260, 1273; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 16; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 786; Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 271; Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 167; Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, para. 39. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 51; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 473; Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 788. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 784. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 282. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 835, 864, 879. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 786. Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 260; Delalic´ et al. (IT-9621-T), Judgment, 16 November 1998, para. 1226; Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, paras. 39–41.

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Other aggravating factors that have been taken into account by the ad hoc tribunals include depravity and sadism in carrying out the crime,160 the enjoyment the oVender took in the crimes,161 the means used for killing,162 cruelty and humiliation,163 and accompanying verbal abuse.164 One Trial Chamber explained that ‘[t]he sexual, violent, and humiliating, nature of the acts are therefore considered in aggravation, as it would certainly have increased the mental suVering and feeling of degradation experienced by the victims’.165 Trial Chambers have also considered membership in extremist organisations,166 espousal of ethnic and religious discrimination and nationalist sentiments,167 and discriminatory grounds based on gender.168 Some judgments have held that although a ‘discriminatory state of mind’ is an aggravating circumstance, it should not be considered separately where the oVence itself – the crime against humanity of persecution, for example – involves an element of discriminatory intent.169 But where a war crime is committed and the perpetrator has a discriminatory intent, this is a legitimate aggravating factor.170 In national legal systems, premeditation is normally deemed to be an aggravating factor. Of course, most crimes likely to attract the attention of the Prosecutor will be those involving a degree of premeditation, so the relevance of this factor cannot be too great. The Trial Chamber of the ICTR in Rutaganda noted as an aggravating factor that ‘[h]e knowingly and

160

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166 167 168 169

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Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 16; Delalic´ et al. (IT-96-21T), Judgment, 16 November 1998, paras. 1264, 1268, 1275; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 783; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 874–875; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 186–199. Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, paras. 24–30. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 20; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 18. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 22; Delalic´ et al. (IT-96-21T), Judgment, 16 November 1998, para. 1274; Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, paras. 63–65; Simic´ (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, para. 63 Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, para. 276; Vasiljevic´ (IT-98-32A), Judgment, 25 February 2004, para. 162. Simic´ (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, para. 63. Also: Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 697. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 55. Ibid., para. 55; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 785. Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 867. Vasiljevic´ (IT-98-32-T), Judgment, 29 November 2002, paras. 277–278; Todorovic´ (IT95-9/1), Sentencing Judgment, 31 July 2001, para. 57 Vasiljevic´ (IT-98-32-A), Judgment, 25 February 2004, para. 172.

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consciously participated in the commission of the crimes’,171 a comment diYcult to reconcile with the general principle by which all crimes be committed knowingly and consciously. But there is authority for premeditation being taken into account as an aggravating circumstance.172 The Trial Chambers have also considered that the accused’s comportment in the trial itself may amount to an aggravating circumstance. For example, they have referred to failure to cooperate with the Prosecutor,173 unsatisfactory expressions of remorse,174 inappropriate behaviour at trial,175 threatening witnesses,176 assertion of an alibi defence and denial of guilt.177 Where guilt is established with respect to an accused as both a direct participant and on the basis of command responsibility, the tribunals generally enter a conviction for only one of the modes of perpetration. Nevertheless, in imposing sentence, the Trial Chamber should take into account both types of responsibility in determining the appropriate sentence. In that sense, responsibility under both forms of liability operates as a kind of aggravating circumstance.178 The Prosecutor has argued that criminal acts committed by the accused but not referred to in the indictment are nevertheless relevant as aggravating ˇ elebic´i, the Appeals Chamber circumstances in the determination of guilt. In C did not exclude the possibility that such evidence be relevant at the sentencing stage, although in the specific case it was unable to determine with clarity whether the Trial Chamber had actually determined that Zdravko Mucic´ was responsible for non-indicted acts on a standard of proof beyond a reasonable doubt. It also raised the question, but without answering it, whether this would be fair to an accused who had not been properly put

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Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 473. Also: Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 30; Kayishema et al. (ICTR95-1-T), Judgment and Sentence, 21 May 1999, para. 13; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 793. Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 30. Also: Delalic´ et al. (IT-9621-T), Judgment, 16 November 1998, paras. 1261, 1275; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 61–62; Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 711; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 793. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 58. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1280. Ibid., paras. 1217, 1244, 1251. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1244; Kordic´ et al. (IT95-14/2-T), Judgment, 26, February 2001, paras. 853, 855; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 863. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 58; Kayishema et al. (ICTR95-1-T), Judgment and Sentence, 21 May 1999, para. 16. Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 745; Naletilic´ et al. (IT-9834-T), Judgment, 31 March 2003, para. 81; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 173.

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on notice that unindicted acts were live issues at the trial.179 The controversial practice of considering unindicted crimes as part of the sentencing calculus has been found by the Inter-American Commission on Human Rights to violate the right to a fair trial.180 Mitigating circumstances are to be considered in general, but the RPE make explicit reference in this context to ‘the substantial cooperation with the Prosecutor by the convicted person before or after conviction’.181 Not all cooperation will meet the qualification ‘substantial’. In Todorovic´, an ICTY Trial Chamber held that the determination as to whether an accused’s cooperation has been substantial ‘depends on the extent and quality of the information he provides’.182 One ICTY Trial Chamber has singled out for mention ‘the spontaneity and selflessness of the co-operation which must be lent without asking for something in return’.183 However, the fact that an accused may benefit from cooperation does not preclude this being considered.184 General Krstic´ gave a voluntary statement, but the Trial Chamber found that it was neither complete nor wholly true: He put up a false defence on several critical issues . . . General Krstic´’s manner was one of obstinacy under cross-examination. He continually refused to answer directly or forthrightly legitimate questions put to him by the Prosecution or even Judges. Overall, his conduct during the proceedings evidences a lack of remorse for the role he played in the Srebrenica area in July 1995.185

As a general rule, when there has been substantial cooperation, the Prosecutor will be prepared to admit it, and the issue will not be in dispute.186 As a

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181 182

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Delalic´ et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 760–765. For the views of the Inter-American Commission on Human Rights on these issues, see: Garza v. United States of America (Case 12.243), Report No. 52/01, 4 April 2001. Garza v. United States of America (Case 12.243), Report No. 52/01, 4 April 2001, paras. 105–111. ICTY RPE, Rule 101(B)(ii); ICTR RPE, Rule 101(B)(ii); SCSL RPE, Rule 101(B)(ii). Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 86. Also: Plavsˇic´ (IT-0039 and 40/1), Sentencing Judgment, 27 February 2003, para. 63; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 774. Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 774; Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16. Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 86. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 722. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, paras. 3, 16, 20; Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 99–101, 111; Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, paras. 94–96; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 36, 47, 60.iii; Serushago (ICTR-9839), Sentence, 5 February 1999, paras. 31, 33, 35, 39; Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 58; Kayishema et al. (ICTR-95-1-T), Judgment and

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consequence of substantial cooperation with the Prosecutor, an accused may require subsequent protection from the threat of reprisals; this is an additional factor that may mitigate sentence.187 Accused persons may ‘assist’ the tribunals in a variety of ways that do not amount to ‘substantial cooperation’ with the Prosecutor, and such acts will generally be considered as mitigating circumstances. For example, voluntary surrender188 has usually been held to be a mitigating circumstance. An admission of guilt and a guilty plea are also taken into account.189 The amount of credit for a guilty plea diminishes if it is made during the trial, rather than before it begins.190 Decisions have recognised the importance of guilty pleas as a demonstration of repentance, honesty and readiness to take responsibility,191 as an example to other oVenders,192 and because they relieve witnesses from giving evidence in court193 and save the Tribunal’s time and

187 188

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190 191

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Sentence, 21 May 1999, para. 20; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 774; Musema (ICTR-96-13-T), Judgment, para. 1006; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 56–58; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 868; Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, paras. 83–88; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 258–260; Babic´ (IT-03-72-S), Sentencing Judgment, 29 June 2004, paras. 72–75. Babic´ (IT-03-72-S), Sentencing Judgment, 29 June 2004, paras. 87–89. Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 34; Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 55; Kupresˇkic´ et al. (IT-96-16-T), Judgment, 14 January 2000, paras. 843, 847, 850; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 776; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 868; Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 65; Strugar (IT-01-42), Judgment, 31 January 2005, para. 472; Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, para. 73; Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 710. Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 122, Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, para. 76; Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, paras. 16, 21; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 232–237; Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 55, 111; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 36, 48, 50, 52; Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 35; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 777; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 52–54; Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, paras. 75–82. Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, para. 150. Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 70; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 237. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16(ii); Simic´ (IT-959/2-S), Sentencing Judgment, 17 October 2002, para. 83. Momir Nikolic´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 150; Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 80; Simic´ (IT-95-9/2S), Sentencing Judgment, 17 October 2002, paras. 84–85.

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resources.194 Furthermore, a guilty plea has been acknowledged for its contribution to establishing the truth195 and for promoting peace and reconciliation.196 Admiral Miodrag Jokic´ pleaded guilty to his role in the shelling of Dubrovnik in 1991. According to the Trial Chamber: The Trial Chamber recognizes that Miodrag Jokic´’s guilty plea prior to the commencement of the trial contributes to establishing the truth about the events in and around the Old Town of Dubrovnik on 6 December 1991. Mutual understanding and conciliation presuppose, to some extent, a true and acknowledged record of the events which made up the conflict in the former Yugoslavia. The Trial Chamber believes that such mutual appreciation of the events can be only advanced by Miodrag Jokic´’s guilty plea. His plea has the potential to strengthen the foundations for reconciliation between the peoples of the former Yugoslavia and for the restoration of a lasting peace in the region. The Trial Chamber finally notes that Miodrag Jokic´’s plea saves considerable time and resources for the Tribunal.197

Similarly, in Deronjic´, the Trial Chamber took into account that public acknowledgement that massacres of Bosnian Muslims had occurred in Srebrenica in 1995 served two purposes: ‘it establishes the truth and it undercuts the ability of future revisionists to distort historically what happened’.198 Other mitigating circumstances considered by Trial Chambers have included an expression of remorse,199 public expression of remorse and 194

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197 198 199

Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, para. 149; Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16(ii); Todorovic´ (IT-959/1), Sentencing Judgment, 31 July 2001, para. 81; Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 73; Banovic´ (IT-02-65/1-S), Sentencing Judgment, 28 October 2003, para. 67; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 53. Todorovic´ (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 81; Momir Nikolic´ (IT02-60/1-S), Sentencing Judgment, 2 December 2003, para. 149; Dragan Nikolic´ (IT-94-2S), Sentencing Judgment, 18 December 2003, para. 233. Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 80; Obrenovic´ (IT-02-60/2-S), Judgment, 10 December 2003, para. 111; Dragan Nikolic´ (IT-94-2S), Sentencing Judgment, 18 December 2003, para. 233; Babic´ (IT-03-72-S), Sentencing Judgment, 29 June 2004, paras. 68–69. Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, para. 77. Deronjic´ (IT-02-61-S), Sentencing Judgment, 30 March 2004, para. 260. Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 39–41; Erdemovic´ (IT-96-22S), Sentencing Judgment, 5 March 1998, para. 16.iii.; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 20; Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 44, 55, 111; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 34, 36, 50–52; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 775; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 69–72; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 868; Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, paras. 89–92; Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, paras. 152, 192, 194;

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contrition200 and an eVort to promote reconciliation.201 However, an ICTR Trial Chamber has cautioned that remorse is not the only reasonable inference that can be drawn from a guilty plea.202 General good character and lack of a criminal record is often cited,203 although it has been noted that this is not deserving of significant weight because it can be said of many defendants.204 Trial Chambers have also considered the relevance of such factors as: participation in acts of mercy and assistance to victims,205 indigence,206 poor family background,207 various personal and family circumstances,208 emotional immaturity,209 physical and mental conditions of the oVender,210 work record,211 lack of dangerousness,212 lack of personal participation in

200 201 202 203

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Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, para. 89; Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, paras. 66–81; Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 241; Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 715. Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 38. Dragan Nikolic´ (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 245–252. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 52. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 63; Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1238; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 43, 45; Akayesu (ICTR-96-4-S), Sentencing Judgment, 2 October 1998, para. 35.iii; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 11, 12; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 780; Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 65; Kupresˇkic´ et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 459; Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 44; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, paras. 495–498. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 284. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16; Erdemovic´ (IT96-22-T), Sentencing Judgment, 29 November 1996, paras. 96–98, 106, 111; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1239, 1270; Rutaganda (ICTR-96-3T), Judgment and Sentence, 6 December 1999, para. 471; Kupresˇkic´ et al. (IT-96-16-T), Judgment, 14 January 2000, para. 850; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 781; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 73–74; Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, paras. 195, 229. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 60. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1284. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 362, 408; Vasiljevic´ (IT98-32-T), Judgment, 29 November 2002, para. 300; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 779. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 44; Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16;Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, paras. 93–95. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 63. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16; Erdemovic´ (IT96-22-T), Sentencing Judgment, 29 November 1996, para. 111.

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killings,213 previous conduct,214 the fact that the oVender was not a ‘soldier of fortune’,215 reluctant participation,216 tolerance and lack of bigotry,217 behaviour in preventive detention218 and service of sentence in a prison far from home.219 According to the ICTY Appeals Chamber, poor health is to be considered only in exceptional or rare cases.220 It is hard to determine what importance should be accorded to the young age of the oVender. The ad hoc tribunals have regularly referred to it as a mitigating factor,221 even in a case where the oVender was thirty-seven years old (and in a country where the average life expectancy is less than fifty!).222 But in a judgment involving a twenty-three-year- old, an ICTY Trial Chamber said this factor did not deserve significant weight because it could be said of many defendants.223 In another, the Trial Chamber explicitly considered as a mitigating circumstance the fact that the person was aged thirty-one, and 213

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Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 77–78; Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 895–898. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 44; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, paras. 495–498; Plavsˇic´ (IT-0039 and 40/1), Sentencing Judgment, 27 February 2003, para. 65. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16. Krstic´ (IT-98-33-T), Judgment, 2 August 2001, para. 711. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 105, 107; Kupresˇkic´ et al. (IT-96-16-T), Judgment, 14 January 2000, para. 846; Ruggiu (ICTR-9732-I), Judgment and Sentence, 1 June 2000, paras. 61–62; Ntakirutimana et al. (ICTR96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 895–898, 908–909; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, paras. 495–498; Strugar (IT-01-42), Judgment, 31 January 2005, para. 468. Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 17; Erdemovic´ (IT96-22-T), Sentencing Judgment, 29 November 1996. para, 21; Strugar (IT-01-42), Judgment, 31 January 2005, para. 472; Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, para. 100. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 111. Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 271; Simic´ (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, para. 98. See also: Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 472; Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 895–898; Strugar (IT-01-42), Judgment, 31 January 2005, para. 469. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 44, 111; Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, paras. 62–63; Erdemovic´ (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16; Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1238, 1284; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 12; Blasˇkic´ (IT-95-14-T), Judgment, 3 March 2000, para. 778. Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 39. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 284. At the December 1999 session of the International Criminal Court Preparatory Commission, Rwanda, Senegal and Israel opposed including age within the list of relevant sentencing factors.

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had been twenty-three at the time of the oVence.224 With respect to an oVender who was twenty-five years old at the time of the crimes, an ICTY Trial Chamber said this was not ‘such a young age that it would justify mitigation’.225 The same view was taken of the fact the criminal may have young children,226 although several decisions appear to have taken this into account.227 Old age has been considered in mitigation, for example with regard to an oVender of seventy-eight,228 others of seventy-two,229 seventy-one,230 sixty-eight231 and even one of sixty-two.232 Trial Chambers have also rejected delay between the time when the crime was committed and the imposition of sentence as a relevant factor. With the passage of time, many defendants remake their lives. But historically, war crimes prosecutions have been completely indiVerent to the fact that the defendant has built a new life, and even rehabilitated himself or herself, in the often-lengthy interval between crime and punishment. In one case, when this issue was raised by the defence as a possible mitigating factor, an ICTY Trial Chamber referred to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. It also noted that the German Supreme Court had disregarded a delay of almost sixty years between the commission of an oVence and the conviction for crimes committed during the Second World War.233 Grounds of defence that are rejected by the Court as an issue of guilt or innocence will almost always be relevant to mitigation of sentence.234 Thus, the Court might reduce sentence in light of evidence of mental illness235 or duress,236 even where insuYcient to constitute a full defence. However, the

224

225 226 227

228

229 230 231 232 233 234 235

236

Jelisic´ (IT-95-10-T), Judgment, 14 December 1999, para. 124. The Appeals Chamber considered this to be within the discretion of the Trial Chamber: Jelisic´ (IT-95-10-A), Judgment, 5 July 2001, para. 131. Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, para. 93. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 287. Tadic´ (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 62; Serushago (ICTR-9839), Sentence, 5 February 1999, para. 39. Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 895–898. Plavsˇic´ (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 65. Strugar (IT-01-42), Judgment, 31 January 2005, para. 469. Jokic´ (IT-01-42/1-S), Judgment, 18 March 2004, paras. 100–101. Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 533. Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, para. 103. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 56. Delalic´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1284; Vasiljevic´ (IT-9832-T), Judgment, 29 November 2002, paras. 282–283. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996; Blasˇkic´ (IT-95-14T), Judgment, 3 March 2000, para. 769; Serushago (ICTR-98-39-A), Decision, 6 April 2000; Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, paras. 65–66.

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tribunals have refused to consider voluntary intoxication as a mitigating circumstance.237

Enforcement of the sentence All three statutes allow for the sentence to be served in a country designated by the Tribunal, subject to agreements being reached with the State in question. The ICTY Statute makes no mention of service of sentence in the States of the former Yugoslavia, whereas the ICTR Statute acknowledges the possibility that sentence be served in Rwanda,238 and the SCSL Statute almost creates a presumption in favour of service of sentence within Sierra Leone.239 In his Report to the Security Council on the draft ICTY Statute, the SecretaryGeneral said he was ‘of the view that, given the nature of the crimes in question and the international character of the tribunal, the enforcement of sentences should take place outside the territory of the former Yugoslavia’.240 The place of detention was a sore point with Rwanda when the ICTR Statute was being adopted.241 Rwanda was concerned that convicted persons would be housed in relatively luxurious prisons in ‘the North’.242 Rwandese President Paul Kagame claimed in an interview: ‘I’m sure there are even Rwandese who are innocent who would want to live in those prisons because they will live better than they do here when they are not prisoners.’243 The Statute of the SCSL states that ‘[i]mprisonment shall be served in Sierra Leone’, but allows, ‘[i]f circumstances so require’, that sentence be served in one of the States that has reached agreement with the ICTY or ICTR, or in a State that reaches any similar agreement with the SCSL.244 In the Secretary-General’s report on the draft SCSL Statute, an example of such ‘circumstances’ is ‘the

237

238

239 240

241

242

243

244

Todorovic´ (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, para. 93, fn. 98; Simic´ (IT95-9/2-S), Sentencing Judgment, 17 October 2002, para. 74. Confirmed: Kvocˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 707. See: ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134 (1995), para. 19. ICTY Statute, art. 27; ICTR Statute, art. 26; SCSL Statute, art. 22. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 121. Larry D. Johnson, ‘The International Tribunal for Rwanda’, (1996) 67 International Review of Penal Law 211, at p. 227. Payam Akhavan, ‘The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment’, (1996) 90 American Journal of International Law 501, at pp. 507–508. Cited in: Mariann Meier Wang, ‘The International Tribunal for Rwanda: Opportunities for Clarification, Opportunities for Impact’, (1995) 27 Columbia Human Rights Law Review 177, at p. 203. SCSL Statute, art. 22.

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security risk entailed in the continued imprisonment of some of the convicted persons on Sierra Leonean territory’.245 States have not been particularly enthusiastic in welcoming convicted prisoners from the international tribunals. Initial appeals from the ICTY, in 1994 and 1995, stimulated commitments from Pakistan, Bosnia and Herzegovina, Croatia, Norway, Finland and Iran. Other States agreed to take prisoners, but only if they had a link to the country.246 Several States told the Tribunal that they were not in a position to accept prisoners.247 The Registry has prepared a model agreement for enforcement of sentences which has been signed by Italy, Finland, Norway, the United Kingdom, Austria, France, Spain, Denmark and Sweden.248 On 9 July 1998, the ICTY President adopted a Practice Direction on the procedure for the Tribunal’s designation of the State in which a convicted person is to serve a sentence of imprisonment.249 Once the sentence has become final, the Registrar inquires with States that have declared their willingness to accept convicted persons and that have signed an agreement with the Tribunal. In determining the State of detention, the President gives particular attention to the proximity to the convicted person’s relations, taking into account the financial resources they have available to visit the convicted person. Other relevant criteria include whether the convicted person is expected to serve as a witness in further proceedings, whether the convicted person is expected to be eventually relocated as a witness, medical or psychological reports, linguistic skills, general conditions of imprisonment and rules governing security and liberty in the State concerned. The Practice Direction recognises that the President may decide that the designation of the State shall not be made public, and in several cases there is in fact no public record of this. Norway was the first to accept an ICTY convict. Drazen Erdemovic´ was sent to a Norwegian prison after the Trial Chamber finally settled on a term of five years, of which approximately two years had already been served in

245

246

247

248 249

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 49. Germany, Denmark, the Netherlands, Spain and Sweden. See: First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 138; Third Annual Report of the ICTY, UN Doc. A/51/292-S/1996/665, para. 189; Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, para. 152. Bahamas, Belarus, Belize, Burkina Faso, Ecuador, France, Liechtenstein, Malaysia, Poland and Slovenia. See: Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/ 1997/729, para. 155. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 299. ‘Practice Direction on the Procedure for the International Tribunal’s Designation of the State in which a Convicted Person is to Serve His/Her Sentence of Imprisonment’, 9 July 1998.

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preventive detention.250 Norway has taken three other prisoners.251 On 31 October 2000, more than a year after dismissal of his appeal of conviction, Dusˇko Tadic´ was sent to Germany on the basis of an ad hoc arrangement with the ICTY and an ‘exequatur decision’ by the Regional Court of Munich I which confirmed the ICTY’s twenty-year sentence.252 Tadic´ had originally been arrested in Germany, and prosecution of him was underway when the ICTY requested deferral in November 1994. Germany has also taken a second prisoner, Dragoljub Kunarac, under an ad hoc arrangement.253 Prisoners have also been sent to Austria,254 Denmark,255 Finland,256 France,257 Italy,258 Spain,259 Sweden260 and the United Kingdom.261 Several States have agreed to enforce sentences of the ICTR in their national prisons, including Belgium, Denmark, Norway, Sweden and Switzerland, Italy, France, Mali, Benin and Swaziland.262 Belgium and Mali did so unconditionally, whereas the others will agree on a case-by-case basis, or only if there is some tie between the convicted person and the proposed country of detention.263 The Registrar took the view that ‘the enforcement of sentences should take place, to the extent possible and for obvious socio-cultural reasons, in an environment which is comparable to that in which the convicted persons formerly lived, in this case Africa’.264 On 9 December 2001, six convicted

250 251

252 253 254

255 256

257 258

259

260

261 262

263

264

Erdemovic´ (IT-96-22-A), Sentencing Judgment, 5 March 1998. Radomir Kovacˇ, Zoran Vukovic´ and Dragan Obrenovic´. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 263; Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 157. Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 211. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 263. Dusˇko Sikirica, Damir Dosˇen and Mitar Vasiljevic´. Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 242. Ranko Cesic´. JP/MOW/959e, 12 April 2005. Hazim Delic´ and Esad Landzˇo. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/ 2003/829, annex, para. 263. Predrag Banovic´. Goran Jelisic´. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 263. Darko Mrda, Stevan Todorovic´, Drago Josipovic´ and Vladimir Sˇantic. Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 242. Biljana Plavsˇic´. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 263. Radislav Krstic´. Third Annual Report of the ICTR, UN Doc. A/53/429-S/1998/857, annex, para. 153; Fourth Annual Report of the ICTR, UN Doc. A/54/315-S/1999/943, annex, paras. 121; Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, paras. 82, 133–134; Ninth Annual Report of the ICTR, UN Doc. A/59/183-S/2004/601. Third Annual Report of the ICTR, UN Doc. A/53/429-S/1998/857, annex, para. 153; Fourth Annual Report of the ICTR, UN Doc. A/54/315-S/1999/943, annex, para. 121. Third Annual Report of the ICTR, UN Doc. A/53/429-S/1998/857, annex, para. 158.

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persons, Kambanda, Akayesu, Kayishema, Ruzindana, Musema and Serushago, were transferred to Mali after it had been designated by the President as the State of enforcement.265 In the first sentencing decision, an ICTY Trial Chamber said it would ‘take account of the place and conditions of enforcement of the sentence in an eVort to ensure due process, the proper administration of justice and equal treatment for convicted persons’.266 The Trial Chamber said it shared the view of the Secretary-General that sentences should be served outside the territory of the former Yugoslavia,267 given that ‘because of the situation prevailing in that region, it would not be possible to ensure the security of the convicted person or the full respect of a decision of the International Tribunal in that regard’.268 The Tribunal supervises sentences of imprisonment, although ‘imprisonment shall be in accordance with the applicable law of the State concerned’.269 This clearly perturbed the ICTY Trial Chamber in Erdemovic´, because it signalled the danger that disparities in national legislation might violate principles of equal treatment. It said: Article 27 of the Statute states that ‘imprisonment shall be in accordance with the applicable law of the State concerned’ and therefore reserves to the States the control over some aspects of the enforcement of penalties. The Trial Chamber recalls that, pursuant to the general supervisory power which this same text grants to the International Tribunal, it also has jurisdiction over the enforcement of the penalties. Since it does not have any further details regarding the respective jurisdictions of the International Tribunal and the designated State, the Trial Chamber is of the opinion that no measure which a State might take could have the eVect of terminating a penalty or subverting it by reducing its length. As regards the measures aVecting the enforcement of the sentences, such as the remission of sentence and provisional release in eVect in a certain number of States, the Trial Chamber can only recommend that these be taken into account when the choice of the State is made. The Trial Chamber wishes that all the measures of this type be brought beforehand to the attention of the President of the International Tribunal who, pursuant to Article 28 of the Statute, moreover, is entitled to review pardons or commutations of penalties before such measures are granted or enforced.270

265 266

267

268 269 270

Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, para. 93. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 70. See also: Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, para. 109. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 121. Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 70. ICTY Statute, art. 27(2); ICTR Statute, art. 26(2); SCSL Statute, art. 22(2). Erdemovic´ (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 73.

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A convicted person may become eligible for pardon or commutation of the sentence, to the extent that this is provided for under the applicable law of the State of imprisonment. If this happens, the State concerned is to notify the Tribunal. The President, in consultation with the judges, then decides the matter ‘on the basis of the interests of justice and the general principles of law’.271 The ICTY and ICTR RPE provide somewhat more detail on the relevant considerations: ‘In determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor.’272 The statutes say nothing about ‘parole’ or ‘conditional release’, by which a convicted person is freed prior to completion of the full term of the sentence subject to fulfilling certain conditions. This may be a form of temporary release for, say, a specific event like the funeral of a loved one. It may also be indefinite release, but always subject to renewed imprisonment should the convicted person breach the conditions imposed. This category of release is common in many States, including several where sentences are being served. Normally, under the laws of a given State a prisoner will only become eligible for parole or conditional release after serving a significant portion of the sentence. Erdemovic´ obtained parole after serving two-thirds of his sentence, in accordance with Norwegian law. Finland, which has taken ICTY prisoners, has similar legislation. Italy grants a credit of forty-five days for every six months of a sentence, provided an oVender participates in a re-education programme.273 In authorising the early release of Miroslav Tadic´, ICTY President Meron observed that ‘eligibility for pardon or commutation of sentence in the enforcement states generally ‘‘starts at two-thirds of the sentence served’’. It has been a consistent practice of this Tribunal to apply this standard when determining the eligibility of persons imprisoned at the [United Nations Detention Unit] for pardon or commutation of sentence.’274 The ICTY Appeals Chamber has also taken note of ‘the practice of the International

271 272

273

274

ICTY Statute, art. 28; ICTR Statute, art. 27; SCSL Statute, art. 23. ICTY RPE, Rule 125; ICTR RPE, Rule 126. This Rule was dropped by the judges from the SCSL RPE. Mary Margaret Penrose, ‘Spandau Revisited: The Question of Detention for International War Crimes’, (2000) 16 New York Law School Journal of Human Rights 553, at p. 581. Miroslav Tadic´ (IT-95-9), Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadic´, 24 June 2004, para. 4.

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Tribunal of granting early release after the convicted person has served twothirds of his sentence’.275 There has been some recognition of the reality of conditional release or parole in judgments of the tribunals. For example, in Stakic´, which was the first ICTY case to impose a term of life imprisonment, the Trial Chamber imposed its own conditions for ‘early release’. Although nothing in the Statute or the Rules gives a Trial Chamber this authority under the Statute,276 the Stakic´ Trial Chamber said that after twenty years have been served the sentence is to be reviewed. Sentence review is not contingent upon application by Stakic´, but according to the judgment it does require his consent. The ‘then competent court’ (i.e., ‘by the Tribunal or a body designated by it’277) may ‘suspend the execution of the remainder of the punishment of imprisonment for life and grant early release, if necessary on probation’. The Trial Chamber provided a non-exhaustive list of relevant considerations, including ‘the importance of the legal interest threatened in case of recidivism’, the conduct of the convicted person while serving his sentence, the personality of the convicted person, his previous history and the circumstances of his acts, and the living conditions of the convicted person and the eVects which can be expected as a result of the suspension. The ICTY Appeals Chamber has acknowledged that Trial Chambers may set a minimum period that must be served before early release,278 but has warned them not to attach too much weight to the possibility of early release in setting the maximum term of the sentence.279 The binding eVect of a judgment imposing a minimum term is not clear. As Judge Shahabuddeen has pointed out, ‘[a]n order for a minimum term must be understood as if it includes the words ‘‘subject to article 28 of the Statute’’’,280 which gives the President the authority to determine the moment when early release should be granted. Thus, a minimum term would be served before release only in cases where the President had not already granted early release. Judge Shahabuddeen’s theory has the consequence of reducing minimum prison terms imposed by Trial Chambers to mere recommendations.281

275 276 277 278

279 280 281

Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 97. Ibid., para. 95. ICTY RPE, Rule 104. Tadic´ (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, para. 28; Krstic´ (IT-98-33-A), Judgment, 19 April 2004, para. 274; Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 95; Dragan Nikolic´ (IT-94-2-A), Partial Dissenting Opinion of Judge Shahabuddeen, 4 February 2005, para. 17. Dragan Nikolic´ (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 97. The equivalent provisions are: ICTR Statute, art. 27; SCSL Statute, art. 23. Dragan Nikolic´ (IT-94-2-A), Partial Dissenting Opinion of Judge Shahabuddeen, 4 February 2005, para. 27.

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Early release may also be granted by the President on the basis of inherent powers in a case where an oVender has already served a substantial portion of the sentence within the Tribunal’s own detention unit. Following the ICTY Appeals Chamber decision of 29 July 2004 which reduced the sentence from forty-five years to nine years, minus the more than eight years of time already served in preventive detention (he surrendered on 1 April 1996 and first appeared before the ICTY on 3 April 1996), President Meron granted his application for early release, to be eVective 2 August 2004.282 Blasˇkic´ had never been in the custody of a State.

282

Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 230.

PA R T I V Organisation of the tribunals

15 Structure and administration of the tribunals

The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are ‘subsidiary organs’ of the United Nations Security Council, established in accordance with articles 7(2), 8 and 29 of the Charter of the United Nations. The Special Court for Sierra Leone (SCSL), on the other hand, is a distinct international organisation created pursuant to an agreement between the United Nations and the Government of Sierra Leone. The distinction operates principally in terms of modification to the respective statutes. Whereas the statutes of the ICTY and ICTR can be (and have been) amended by resolutions of the Security Council,1 any change to the Statute of the SCSL requires the written agreement of the two parties to the agreement that created it.2 The structure of the three institutions is largely the same. They are divided into three main units: the Chambers (or judges); the Registry; and the OYce of the Prosecutor (OTP).3 The Secretary-General explained this in his report to the Security Council on the draft ICTY Statute: The organisation of the International Tribunal should reflect the functions to be performed by it. Since the International Tribunal is established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia, this presupposes an international tribunal composed of a judicial organ, a prosecutorial organ and a secretariat. It would be the function of the prosecutorial organ to investigate cases, prepare indictments and prosecute persons responsible for committing the violations referred to above. The judicial organ would hear the cases presented to its Trial Chambers, and consider appeals from the Trial Chambers in its Appeals

1

2 3

UN Doc. S/RES/1165 (1998); UN Doc. S/RES/1166 (1998); UN Doc. S/RES/1329 (2000); UN Doc. S/RES/1411 (2002); UN Doc. S/RES/1431 (2003); UN Doc. S/RES/1481 (2003); UN Doc. S/RES/1503 (2003); UN Doc. S/RES/1512 (2003); UN Doc. S/RES/1597 (2005). SCSL Agreement, art. 22. A body known as the ‘Coordination Council’ is composed of the President, the Prosecutor and the Registrar. It meets at least once a month, and is charged with ‘the coordination of the activities of the three organs of the Tribunal’. See ICTY RPE, Rule 23bis.

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Chamber. A secretariat or Registry would be required to service both the prosecutorial and judicial organs.4

There is no separate police or investigative section, and responsibility for investigations falls to the OTP. No particular provision is made for defence counsel in the statutes. With a few exceptions, they are funded by the tribunals and account for a very significant part of the budget of the institutions, although they operate largely autonomously and without much formal structure.

Seat of the tribunals The seat of the ICTY is in The Hague,5 which also hosts several other important international judicial bodies, including the International Court of Justice and the International Criminal Court. The Security Council made this provision contingent upon conclusion of acceptable arrangements between the Government of the Netherlands and the United Nations. Such an agreement was reached on 27 May 1994.6 The Security Council also authorised the Tribunal to sit elsewhere, ‘when it considers it necessary for the eYcient exercise of its functions’.7 The seat of the ICTR is in Arusha, in Tanzania. This was one of the diYcult issues when the Tribunal was being established. Rwanda felt strongly that the seat should be in its capital, Kigali. In the Security Council debate, Rwanda argued that locating the Tribunal within the country was important in ‘teach[ing] the Rwandese people a lesson, to fight against the impunity to which it had become accustomed . . . and to promote national reconciliation’. Furthermore, Rwanda said that ‘establishing the seat of the Tribunal on Rwandese soil would promote the harmonization of international and national jurisprudence’.8 The Statute does not specify the seat. In the accompanying resolution, the Security Council charged the Secretary-General with making recommendations on this matter.9 In his 13 February 1995 report to the Security Council, the Secretary-General said that ‘the choice of Rwanda as the location of the seat would not be feasible or appropriate’. He proposed that

4

5 6

7 8

‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 69. ICTY Statute, art. 31. ‘Agreement Between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia’, UN Doc. S/1994/848, annex. See: First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, paras. 168–171. UN Doc. S/RES/827 (1993), para. 7. 9 UN Doc. S/PV.3453 (1994), at 16. UN Doc. S/RES/955 (1994), para. 5.

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Arusha be designated,10 and the Security Council obliged a few days later.11 A headquarters agreement was reached between the United Nations and the host country, Tanzania, on 31 August 1995.12 The seat of the SCSL is in Freetown, the capital of Sierra Leone. The Security Council had initially asked the Secretary-General to consider whether it might be more appropriate for the Court to be located in another State.13 The Secretary-General left this matter unresolved, but in his report there are several paragraphs entitled ‘An alternative host country’.14 The Agreement between Sierra Leone and the United Nations establishing the Court states: The Special Court shall have its seat in Sierra Leone. The Court may meet away from its seat if it considers it necessary for the eYcient exercise of its functions, and may be relocated outside Sierra Leone, if circumstances so require, and subject to the conclusion of a Headquarters Agreement between the Secretary-General of the United Nations and the Government of Sierra Leone, on the one hand, and the Government of the alternative seat, on the other.15

The Government of Sierra Leone and the United Nations reached a headquarters agreement on 21 October 2003, more than a year after the Court had actually begun its operations in Freetown.16 Commenting on the seat of the various international tribunals, the SecretaryGeneral has noted that the ICTY and ICTR were able to benefit from better operational facilities, as well as security and independence, because they were not located in the country concerned. But he added that if security and independence can be adequately maintained, there are a number of important benefits to locating tribunals inside the countries concerned, including easier interaction with the local population, closer proximity to the evidence and witnesses and being more accessible to victims. Such accessibility allows victims and their families to witness the processes in which their former tormentors are brought to account. National location also enhances the national capacity-building 10

11 12

13 14

15

16

‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134 (1995), para. 45. UN Doc. S/RES/977 (1995). ‘Agreement Between the United Nations and the United Republic of Tanzania Concerning the Headquarters of the International Tribunal for Rwanda’, UN Doc. A/51/399-S/ 1996/778, annex. UN Doc. S/RES/1315 (2000), para. 7. ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, paras. 51–54. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 10. Headquarters Agreement, Between the Republic of Sierra Leone and the Special Court for Sierra Leone, 21 October 2003.

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contribution of the ad hoc tribunals, allowing them to bequeath their physical infrastructure (including buildings, equipment and furniture) to national justice systems, and to build the skills of national justice personnel. In the nationally located tribunals, international personnel work side by side with their national counterparts and on-the-job training can be provided to national lawyers, oYcials and staV. Such benefits, where combined with specially tailored measures for keeping the public informed and eVective techniques for capacity-building, can help ensure a lasting legacy in the countries concerned.17

A practice has developed of making on-site visits; these take place in the presence of counsel, but in the absence of the accused. In Bagilishema, an ICTR Trial Chamber granted a request of the defence, which was not contested by the Prosecutor, and visited sites in Kibuye Prefecture in Rwanda in order ‘to better appreciate the evidence to be adduced during the trial’.18 In Kupresˇkic´ et al., the President of the ICTY authorised an on-site visit at the request of the Chamber, determining that it was in the interests of justice to obtain a first-hand knowledge of the area.19 A site visit in Blagojevic´ was conducted to various places and sites in the Srebrenica, Bratunac and Svornik municipalities for the purpose of assisting the Trial Chamber ‘in familiarising itself with the sites mentioned in the indictment and during the trial’.20 But often requests for on-site visits have been denied.21

Working languages of the tribunals The working languages of the ICTY and the ICTR are English and French.22 Courtroom proceedings are also translated into the national languages:

17

18 19

20 21

22

‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General’, UN Doc. S/2004/616, para. 44. Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 10. Kupresˇkic´ et al. (IT-95-16-T), Authorisation by the President of an On-Site Visit Pursuant to Rule 4 of the Rules of Procedure and Evidence, 29 September 1998; Kupresˇkic´ et al. (IT-95-16-T), Confidential Order on On-Site Visit, 13 October 1998. The visit did not take place because of security issues. Blagojevic´ et al. (IT-02-60-T), Judgment, 17 January 2005, paras. 31, 910. Akayesu (ICTR-96-4-T), Decision on the Defence Motion Requesting an Inspection of the Site and the Conduct of a Forensic Analysis, 17 February 1998, para. 8; Ndayambaje et al. (ICTR-98-42-T), Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda Under Rules 4 and 73 of the Rules of Procedure and Evidence, 23 September 2004, paras. 14–15; Bagosora (ICTR-98-41-T), Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda, 29 September 2004; Simba (ICTR-01-76-T), Decision on Defence Renewed Request for Site Visits in Rwanda, 4 May 2005. ICTY Statute, art. 33, ICTY RPE, Rule 3(A); ICTR Statute, art. 31, ICTR RPE, Rule 3(A). Also: ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134 (1995), paras. 135–136.

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Serbo-Croatian, at the ICTY, and Kinyarwanda, at the ICTR. The working language of the SCSL is English,23 although major documents are also translated into Krio, Sierra Leone’s lingua franca, as well as into its most important regional languages, Themne and Mende.24 At the ICTY and the ICTR, proceedings are systematically interpreted or translated so that they are available in both of the oYcial languages.25 EYcient and eVective interpretation has been a logistical headache. Only in 2003 did the ICTR report that it had finally managed to achieve simultaneous translation of proceedings into the three languages. Since it began operations, it had used time-consuming consecutive interpretation. According to the ICTR, the switch to simultaneous translation resulted in a time saving of 25 per cent.26 Was the ICTR really suggesting that it might have been two years more advanced in its work had it opted for the rather simple measure of simultaneous interpretation, one whose only real cost implications involve some rather inexpensive electronic equipment? The Appeals Chamber has held that all acts of procedure and briefs must be provided in both oYcial languages of the tribunals.27 Judgments are generally issued initially in only one of the oYcial languages, which is usually English, although on occasion French-language judgments have been issued many months before they became available in English. The procedure contrasts with a body like the International Court of Justice, which releases its judgments in both English and French simultaneously. When the first major decision of the ICTY was released on 2 October 1995, in English only, Judge Jules Descheˆnes authored a short individual opinion complaining that the new Tribunal was not respecting the tradition of oYcial bilingualism of international courts.28

23

24

25

26 27

28

SCSL Statute, art. 24, SCSL RPE, Rule 3(A). The SCSL Agreement, art. 18, contains a provision entitled ‘Working language’: ‘The oYcial working language of the Special Court shall be English.’ ‘First Annual Report of the President of the Special Court for Sierra Leone, for the period 2 December 2002 – 1 December 2003’, p. 15. ICTY RPE, Rule 3(E); ICTR RPE, Rule 3(E). See: Delalic´ et al. (IT-96-21), Order on Defence Applications for Amendment of the Directive on Assignment of Defence Counsel, Forwarding the Documents in the Language of the Accused and Confirmation of the Status of Witnesses for the Defence, 31 May 1996; Muhimana (ICTR-95-1-B-I), De´cision relative a` la requeˆte de la defence aux fins de traduction des documents de l’accusation et des actes de procedure en kinyarwanda, langue de l’accuse´, et en franc¸ais, langue de son conseil, 6 November 2001. Eighth Annual Report of the ICTR, UN Doc. A/58/140-S/2003/707, para. 4. Akayesu (ICTR-96-4-A), Ordonnance (Requeˆte aux fins de traduction des me´moires de l’Appelant), 29 March 2001. Tadic´ (IT-94-1-AR72), Separate Declaration of Judge J. Descheˆnes on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

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In principle, counsel before the tribunals must be fluent in one, and ideally both, of the oYcial languages. This is not really an issue at the ICTR and the SCSL. But in The Hague, many defence counsel come from one of the States of the former Yugoslavia and are not able to function eVectively in English or French. Because the working language rule conflicts with the right of the accused to counsel of his or her choosing, an exception has been made allowing counsel for an accused to apply to the president judge of a chamber for leave to use a language other than the two working languages or the language of the accused.29 If leave is granted, the expenses of interpretation and translation are borne by the Tribunal, ‘to the extent, if any, determined by the President, taking into account the rights of the defence and the interests of justice’.30 If procedural documents are filed in a language other than one of the oYcial languages, any applicable delays do not begin to run against the other party until they have been translated.31 Of course, the accused person is always entitled to use his or her own language in court.32 Even at the earliest stages in a prosecution, when the ‘accused person’ is still only a suspect, he or she is entitled ‘to necessary translation into and from a language he speaks and understands’.33 Once accused, a person has a right ‘to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him’,34 to have a translation of the indictment itself 35 as well as of supporting material,36 and to be cautioned about the rights of the accused in a language that is understood.37 The SCSL RPE make special provision for the case where an accused is illiterate or where there is no written form of the language spoken by the accused, in which case an interpreter is to explain the content of the relevant documents.38 More generally, an accused is entitled ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal’.39 The judgment is also translated into a language that the accused understands.40

29 30 31 32 33

34 35 36 37 38 39 40

ICTY RPE, Rule 44(B). ICTY RPE, Rule 3(D); ICTR RPE, Rule 3(C). ICTY RPE, Rule 3(F). ICTY RPE, Rule 3(B); ICTR RPE, Rule 3(B); SCSL RPE, Rule 3(B). ICTY Statute, art. 18(3), ICTY RPE, Rules 42(A), 43(i); ICTR Statute, art. 17(3), ICTR RPE, Rules 42(A), 43(i); SCSL RPE, Rules 42(A), 43(i). ICTY Statute, art. 21(4)(a); ICTR Statute, art. 20(4)(a); SCSL Statute, art. 17(4)(a). ICTY RPE, Rule 47(G); SCSL RPE, Rule 52(C). ICTY RPE, Rule 66(A). ICTY RPE, Rules 55(C), 59(B); SCSL RPE, Rule 55. SCSL RPE, Rule 52(C). ICTY Statute, art. 21(4)(f); ICTR Statute, art. 20(4)(f); SCSL Statute, art. 17(4)(f). ICTY RPE, Rule 98ter(D).

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Persons who appear before the ICTY and the ICTR, other than as counsel, and who do not have suYcient knowledge of either of the two working languages, are entitled to use their own language.41 The SCSL RPE do not formulate this as a right, stating that ‘[a]ny person appearing before or giving evidence to the Special Court, who does not have suYcient knowledge of English, may ask for permission to use his own language’.42

Chambers There are two types of Chambers, Trial Chambers and Appeals Chambers. Each of the three tribunals has an Appeals Chamber and at least two Trial Chambers. The Chambers are composed of judges. Three judges make up a Trial Chamber bench, and five that of the Appeals Chamber. The RPE authorise the Trial Chambers to sit with two judges for brief periods, and on an exceptional basis.43 There is nothing in the Rules authorising the Appeals Chamber to sit without a full bench, although they have often sat as a bench of three without apparent challenge. For a time, the SCSL Appeals Chamber lacked a judge, following the appointment of Hassan Jallow as Prosecutor of the ICTR, and therefore had no alternative but to sit with three or four judges. The President of the ICTY is ex oYcio a member of the Appeals Chamber. The President designates four of the permanent judges as members of the Chamber; the other judges are members of the Trial Chambers.44 Originally, the Appeals Chamber of the ICTY and the ICTR was shared between the two institutions. It was believed that this would result in economies of scale and, moreover, promote consistency in the case law of the two tribunals.45 In fact, there were two distinct Appeals Chambers, but with the same membership.46 A similar suggestion was made when the SCSL was being established,47 but was not adopted. Responding to the Security Council on this point, the Secretary-General said: ‘The sharing of one Appeals Chamber between all

41 42 43 44 45

46

47

ICTY RPE, Rule 3(C); ICTR RPE, Rule 3(D). SCSL RPE, Rule 3(C). ICTY RPE, Rule 15bis(A); ICTR RPE, Rule 15bis(A); SCSL RPE, Rule 16(A). ICTY Statute, art. 14(3). ‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994)’, UN Doc. S/1995/134 (1995), para. 9. ICTR Statute, art. 12(2): ‘The members of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter referred to as ‘‘the International Tribunal for the Former Yugoslavia’’) shall also serve as the members of the Appeals Chamber of the International Tribunal for Rwanda.’ UN Doc. S/RES/1315 (2000), para. 7.

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three jurisdictions would strain the capacity of the already heavily burdened Appeals Chamber of the two tribunals in ways which could either bring about the collapse of the appeals system as a whole, or delay beyond acceptable human rights standards the detention of accused pending the hearing of appeals from either or all jurisdictions.’48 Subsequently, the Security Council decided to create a more autonomous Appeals Chamber for the ICTR. Two additional judges were provided who were to sit as members of the ICTR Appeals Chamber.49 These judges reside in The Hague, rather than in Arusha, although the Chamber travels to Arusha for hearings. The two ICTR appellate judges are assigned by the President of the ICTR from amongst the permanent judges of that tribunal, but in addition to sitting on the ICTR Appeals Chamber they also become permanent judges of the ICTY and members of its Appeals Chamber.50 The ICTY and ICTR began their operations with two Trial Chambers each. The ICTY was soon enlarged with the appointment of additional judges, and a third Trial Chamber was created in 1998.51 With the arrival of ad litem judges, what amounts to new Trial Chambers were created at the ICTY, although the Tribunal treated the new units, composed of one permanent judge and two ad litem judges, as a division of the Trial Chamber to which the permanent judge belonged. By 2002, six panels of three judges each were hearing separate cases in The Hague, dividing the day into morning and afternoon sittings so that the three courtrooms could be used to the maximum.52 Similarly, in Arusha, the number of judges was expanded in 1998 to allow for three Trial Chambers to operate simultaneously.53 The appointment of ad litem judges resulted in the creation of additional panels. The SCSL began its operations with only one Trial Chamber, which began hearing two cases in parallel during 2004. By 2005, a second Trial Chamber had been appointed, and a third trial was underway. The President of the Tribunal assigns both permanent judges and ad litem judges to the Trial Chambers.54 Each of the Trial Chambers has a president, elected by the permanent judges who make up that Trial Chamber.55

48

49 50 51 52 53 54

‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 42. UN Doc. S/RES/1329 (2000), paras. 2–3. ICTY Statute, art. 14(4). UN Doc. S/RES/1166 (1998). Ninth Annual Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 60. UN Doc. S/RES/1165 (1998). 55 ICTY Statute, art. 14(3) & (5). ICTY Statute, art. 14(7).

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Judges of the Chambers Judges of the ICTY and ICTR are elected by the General Assembly of the United Nations, from a list prepared by the Security Council.56 They are elected to terms of four years. They must be nominated by a Member State of the United Nations, or by a non-member State with a permanent observer mission. The elections themselves do not show the most glorious side of international justice. They involve complex negotiations, often insincere pledges to vote for certain candidates, and commitments by States based on considerations that are far from judicial excellence and the need for the most qualified judges at the international tribunals. Lacking any formula similar to that adopted by the International Criminal Court aimed at ensuring gender balance,57 the ICTY and ICTR have not been particularly eVective at ensuring the election of an appropriate number of women judges. The statutes do not allow the election of two judges of the same nationality,58 although the norm does not seem to apply with respect to ad litem judges who may have the same nationality as a permanent judge.59 The Security Council allowed for an exception to the general rule, on a temporary basis, when ICTR Judge Ostrovsky was authorised to complete a case that had begun prior to expiry of his term while another judge who was also of Russian nationality began serving a new term at the Tribunal.60 Given potential diYculties with the composition of the ICTY and ICTR Appeals Chambers, because some of them might have dual nationality, the statutes were amended to state that ‘for the purposes of membership of the Chambers of the International Tribunals, such persons should be regarded as bearing the nationality of the State in which they ordinarily exercise civil and political rights’.61 Judges at the SCSL are appointed. Of the five judges making up the Appeals Chamber, two are appointed by the Government of Sierra Leone, and three by the Secretary-General ‘upon nominations forwarded by States, and in particular the member States of the Economic Community of West African States

56

57

58 59

60

For the ICTY: UN Doc. S/RES/857 (1993); UN Doc. S/RES/1104 (1997); UN Doc. S/ RES/1191 (1998); UN Doc. S/RES/1340 (2001); UN Doc. S/RES/1567 (2004). For the ICTR: UN Doc. S/RES/989 (1995); UN Doc. S/RES/1200 (1998); UN Doc. S/RES/1347 (2001); UN Doc. S/RES/1449 (2002). Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 36(8)(a)(iii). ICTY Statute, art. 13(2)(d). In 2004, for example, there were ad litem judges serving on the ICTY from Argentina (Carmen Maria Argibay), the Netherlands (Bert Swart) and Germany (Albin Eser), alongside permanent judges from the same countries (Ine´s Mo´nica Weinberg de Roca of Argentina, Alphonsus Martinus Maria Orie of the Netherlands, Wolfgang Schomburg of Germany). 61 UN Doc. S/RES/1482 (2003), para. 1(c). UN Doc. S/RES/1411 (2002).

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and the Commonwealth, at the invitation of the Secretary-General’.62 Similarly, of the three judges composing each Trial Chamber, two are appointed by the Secretary-General and one by the Government of Sierra Leone. It is not a requirement that the Government of Sierra Leone appoint nationals of that country, and in fact in its first appointments one of the two members of the Appeals Chamber was a foreign national. Reflecting on the experience of the tribunals, the United Nations SecretaryGeneral has insisted that persons appointed to the bench possess extensive criminal trial experience, preferably as judges. He has recommended that States establish career structures making it easier for serving members of the judiciary to be seconded to international criminal justice institutions. The Secretary-General has also noted that ‘adjudicating in international criminal proceedings is an arduous and stressful task, as the high number of casual vacancies that have arisen at the two ad hoc tribunals shows’. Finally, he has insisted that only persons in good health be proposed for such positions, and has suggested that an age limit might be imposed, as is the case in many national jurisdictions.63 Yet some of the finest judges of the tribunals have been quite elderly. One of the best, Judge Haopei Li of China, was in his nineties. He died on the bench, but not from ill health; Judge Li was murdered by an insane nurse in a Dutch hospital. In 2001, following various proposals aimed at expediting trials,64 the Security Council authorised the establishment of a new category of judge, known as the ad litem judge.65 The ICTY Statute was duly amended to authorise the election of judges who would sit in trials on a case-by-case basis. The maximum term was set at three years, thereby ensuring that they would not become eligible for United Nations pensions. A pool of ad litem judges was elected, from which could be designated judges to join specific Trial Chambers. As a general rule, priority was given to those who had obtained the highest number of votes in the General Assembly elections. Two years later, after entreaties from the President of the ICTR,66 a similar pool of ad litem judges was elected for that Tribunal.67 The ad litem judges sit as full members of a Trial Chamber, but they do not have the same powers as

62

63

64

65 66

67

Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 2(2)(a). ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General’, UN Doc. S/2004/616, para. 45. See: Daryl A. Mundis, ‘Improving the Operation and Functioning of the International Criminal Tribunals’, (2000) 94 American Journal of International Law 759, at pp. 767–773. UN Doc. S/RES/1329 (2000), para. 1. Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, paras. 19– 20. UN Doc. S/RES/1431 (2002). Also: UN Doc. S/RES/1512 (2003).

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‘permanent judges’68 with respect to pre-trial matters and administrative issues, such as amendment of the RPE.69 In 2003, the Security Council expanded their powers so that they could assist in the pre-trial process.70 In 2005, the ICTY Statute was amended to allow ad litem judges to stand for re-election and thereby sit in a new set of trials for a second period not to exceed three years.71 Judges must be ‘persons of high moral character, impartiality and integrity who possess the qualifications required in their countries for appointment to the highest judicial oYces’. In his report to the Security Council, the SecretaryGeneral said that ‘due account should be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law’.72 The judges are required to make a ‘solemn declaration’ upon assuming their functions.73 Judges are subject to re-election, although this is far from automatic. There are a number of cases of judges who stood for re-election and did not succeed, resulting in administrative problems with respect to ongoing trials. Early in the history of the ICTY, when all three members of a Trial Chamber, who were in the final stages of a complex and lengthy trial, were not re-elected, the Security Council adopted a resolution allowing them to continue in their functions until the trial was completed.74 Subsequently, the Security Council resisted this approach, refusing to authorise the extension of mandates. This imposed another solution whereby a judge could be replaced in the midst of a trial if unable to continue sitting for, amongst other reasons, ‘non re-election’.75 The SCSL Statute opts for a somewhat diVerent solution, allowing the appointment of ‘alternate judges’.76 There were alternate judges at Nuremberg, although their services were not required. Nevertheless, the four alternates 68

69 70

71 72

73 74

75

76

This terminology was adopted when ad litem judges were created, although it seems odd to describe those who serve four-year terms as ‘permanent’. ICTY Statute, art. 13quater. UN Doc. S/RES/1481 (2003), which added art. 13quater to the ICTY Statute; UN Doc. S/RES/1512 (2003), which added art. 12quater to the ICTR Statute. UN Doc. S/RES/1597 (2005). ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 74. ICTY RPE, Rule 14(A); ICTR RPE, Rule 14(A); SCSL RPE, Rule 14(A). UN Doc. S/RES/1126 (1997). Similarly, when Judge Aspegren decided not to seek an additional term, the Security Council authorised him to continue to serve until two trials in which he was involved had been completed: UN Doc. S/RES/1241 (1999). It did the same for several ICTR judges in 2003 (UN Doc. S/RES/1482 (2003)) and ICTY ad litem judges in 2005 (UN Doc. S/RES/1581 (2005)). ICTY RPE, Rule 15bis(C); ICTR RPE, Rule 15bis(C); SCSL RPE, Rule 16. This is discussed above at pp. 412–413. SCSL Statute, art. 12(4).

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remained throughout the trial in case of absence of one of the principal judges. The SCSL Statute implies the same sort of arrangement, but this is not reflected in the RPE adopted by the judges themselves, which do not really contemplate alternate judges sitting from the beginning of the trial. Rather, they treat them as if they are a pool of back-up judges available in case of longterm absence of a regular judge.77 In practice, alternate judges were designated but they have not actually attended the trials on a regular basis. When a judge leaves the ICTY or ICTR before the end of his or her term, the Secretary-General may appoint a replacement.78 There is a tradition by which the State that nominated the judge being replaced is entitled to designate the replacement. But while customary, there are exceptions to the general rule that the replacement judge is of the same nationality as the departing judge.79 At the ICTY and the ICTR, there is a rotation of judges from the Trial Chambers to the Appeals Chamber. The President can assign temporarily a member of a Trial Chamber or of the Appeals Chamber to another Chamber.80 There is no rotation at the SCSL, as the judges are appointed specifically to either the Trial Chambers or the Appeals Chamber. There is always a ‘duty judge’ available to deal with urgent matters. Judges take their turn as duty judge, serving for terms of one week at a time.81

OYcers and members of the Chambers The statutes provide for the election of a President of the Tribunal.82 The election is carried out at a meeting of all of the permanent judges of the Tribunal, known as the ‘Plenary’.83 The RPE govern the election of a Vice-President.84 Both the President and the Vice-President of the ICTY and ICTR are elected for terms of two years. There has been a tradition at the ICTY of alternating between Presidents drawn from common law and Romano-Germanic legal traditions. The Presidency of the SCSL changes every year.85 The President of the ICTY is a member of the Appeals Chamber of both the ICTY and

77 79

80 81 82 83 84 85

78 SCSL RPE, Rule 16. ICTY Statute, art. 13(3); ICTR Statute, art. 12(3). E.g., at the ICTY, Jules Descheˆnes of Canada was replaced in 1997 by Mohamed Shahabuddeen of Guyana. At the ICTR, Dionysios Kondylis of Greece was replaced in 1999 by Asoka de Zoysa Gunawardana of Sri Lanka. ICTY RPE, Rule 27. ICTY RPE, Rule 27(B). ICTY Statute, art. 14(1); ICTR Statute, art. 13(1); SCSL Statute, art. 12(3). ICTY RPE, Rules 24–26, 35; ICTR RPE, Rules 24–26, 35; SCSL RPE, Rules 24–26, 35. ICTY RPE, Rule 20; ICTR RPE, Rule 20; SCSL RPE, Rule 20. SCSL RPE, Rule 18(B). The original Rule allowed for a three-year term, but was changed several months after the first President entered his second term.

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ICTR.86 The President often delegates this responsibility to other members of the Appeals Chamber. The various functions of the President are set out in both the statutes and the RPE. The statutes provide that the Registrar is designated following consultation with the President,87 and that the President shall ‘decide’ issues of pardon or commutation of sentence.88 Perhaps the President’s most important function is in designation of Trial Chambers89 and the assignment of judges,90 including designation of the ad litem judges.91 According to the RPE, the President coordinates the work of the Chambers and supervises the activities of the Registry. The President may issue ‘Practice Directions’ that deal with detailed aspects of the conduct of proceedings before the tribunals.92 The President also has authority with respect to translation facilities,93 authorisation for the Tribunal to sit elsewhere than at its seat,94 formal communication with the Security Council95 and the Secretary-General,96 review of certain decisions of the Registrar,97 ethical matters concerning defence counsel,98 review of provisional detention in a State,99 and designation of State of detention of a convicted person.100 The President is assisted in matters concerning administrative and judicial support for the Chambers and the judges, and in the preparation and implementation of the budget, by a Management Committee composed of the President, the Vice-President, a Judge elected by his or her colleagues, the Registrar, the Deputy Registrar and the Chief of Administration.101 When the President is absent or unable to act, the Vice-President exercises the functions of the President.102 The Bureau is a body composed of the President, the Vice-President and the Presiding Judges of the Trial Chambers.103 The President is to consult the Bureau ‘on all major questions relating to the functioning of the Tribunal’.104 Under the RPE, the Bureau’s powers include determinations that a judge

86 87 88 89 90

91 92 93 94 95 96 98 101 103

ICTY Statute, art. 14(2); ICTR Statute, art. 34(2); ICTY Statute, art. 12(3). ICTY Statute, art. 17(3); ICTR Statute, art. 16(3); SCSL Statute, art. 16(3). ICTY Statute, art. 28; ICTR Statute, art. 27; SCSL Statute, art. 23. ICTY RPE, Rules 9, 11bis, 62; ICTR RPE, Rules 9, 11bis, 15(A), (B). ICTY Statute, art. 14(3), ICTY RPE, Rules 15(A), 15bis(C) and (D), 27, 28, 50(A), 51 (A), 72(E), 77(K), 119(A). ICTY Statute, art. 14(5). ICTY RPE, Rule 19. ICTY RPE, Rule 3(D); ICTR RPE, Rule 3(C). ICTY RPE, Rule 4; ICTR RPE, Rule 4. ICTY RPE, Rules 7bis, 11, 13, 59, 61(E); ICTR RPE, Rule 7bis; 11, 13. 97 ICTY RPE, Rule 16. Ibid., Rule 44(B). 99 100 Ibid., Rule 46(B) and (C). Ibid., Rule 64. Ibid., Rule 103(A). 102 Ibid., Rule 23ter. Ibid., Rule 21. 104 Ibid., Rules 2(A), 23(A). Ibid., Rule 23(B).

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should be disqualified,105 examination of indictments to ensure they concentrate on senior leaders106 and approval of a list of medical practitioners to carry out competency examinations.107

Prosecutor The ‘ Prosecutor’ is a distinct organ of the tribunals. The Prosecutor is to act independently, and ‘shall not seek or receive instructions from any Government or from any other source’.108 The functions of the Prosecutor are described as ‘investigation and prosecution’.109 The Prosecutor directs the ‘OYce of the Prosecutor’ (or simply OTP), which is made up of the Prosecutor and his or her staV.110 The staV of the ICTY and ICTR OTP are appointed by the Secretary-General on the recommendation of the Prosecutor.111 The Prosecutor’s powers and duties under the Rules may be exercised by staV members of the OYce of the Prosecutor authorised by the Prosecutor, or by any person acting under the Prosecutor’s direction.112 Each Prosecutor is assisted by a Deputy Prosecutor, who can exercise the functions of the Prosecutor in the event of the latter’s absence from duty or inability to act or upon the Prosecutor’s express instructions.113 The Deputy Prosecutors of the ICTY and ICTR are appointed by the Secretary-General,114 while the SCSL Deputy Prosecutor is appointed by the Government of Sierra Leone.115 The ICTY Prosecutor has established several field oYces, in Zagreb, Sarajevo, Banja Luka, Belgrade, Pristina and Skopje. The ICTR Prosecutor operates a major field oYce in Kigali, and has contemplated establishing oYces in both Kinshasa and Brussels. The Prosecutor must be of ‘high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases’.116 Because of the hybrid nature of the proceedings, the Prosecutor must combine some of the characteristics of an ‘adversarial’ prosecutor from the common-law tradition and some of those of an instructing magistrate from the Romano-Germanic tradition. It is probably fair to say that the instructing magistrate (or juge d’instruction) is more balanced, and principally seeks to find the truth, whereas the adversarial prosecutor is focused on building a case to prove guilt of the suspect. But an

105 108 109

110 112 115

106 107 Ibid., Rule 15(B). Ibid., Rule 28(A). Ibid., Rule 74bis. ICTY Statute, art. 16(2). Ibid., art. 16(1). On the structure of the OTP, see: First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, paras. 150–155. 111 ICTY Statute, art. 16(3). Ibid., art. 16(5). 113 114 ICTY RPE, Rule 37(B). Ibid., Rule 38(B). Ibid., Rule 38(A). 116 SCSL Agreement, art. 3(2). ICTY Statute, art. 16(4).

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ethical prosecutor in the common-law tradition should also be seeking truth, and should resist partisan tendencies. Similarly, in Romano-Germanic systems it is not unknown for an instructing magistrate to become rather one-sided in a quest for convictions. It is a commonplace that the international tribunals have a primarily adversarial system.117 In Blagojevic´, an ICTY Trial Chamber said that ‘the primary responsibility for investigating the charges against an accused, including seeking and gathering information related to those charges, lies with his or her defence counsel’.118 According to Judge David Hunt, the Prosecutor ‘acts on behalf of the international community, including the victims of the oVences charged’.119 Moreover, the Prosecutor also has a duty to the Tribunal to clarify issues of law, procedure and evidence, even in circumstances where this may be adverse to the Prosecutor’s contentions.120 When the ICTR was established, the Security Council provided for a shared prosecutor. In eVect, the ICTY Prosecutor was also the ICTR Prosecutor. This was changed by the Security Council in August 2003 when the position of a separate ICTR Prosecutor was created.121 The ICTY and ICTR Prosecutors are appointed by the Security Council on nomination by the Secretary-General of the United Nations.122 They have a term of four years. The Secretary-General of the United Nations appoints the Prosecutor of the SCSL for a term of three years.123 Prosecutors are eligible for reappointment, although in the history of the three tribunals only one, Carla Del Ponte, has sought this.124 The political manoeuvring that took place at the time of her reappointment, notably pressure from the Government of Rwanda with respect to prosecutorial strategy, revealed the potential threat to prosecutorial independence that can arise in such a situation. Filling the Prosecutor’s shoes has always been a great challenge, and it is obvious that this is the most sensitive position in the tribunals. When the ICTY was being established, it took the Secretary-General more than a year to find the right person for the job, and even then, an incumbent was identified who agreed to serve for only two years. The Secretary-General moved quickly to develop a short list of candidates, but the selection became mired in the 117 118

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Kordic´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 22. Blagojevic´ et al. (IT-02-60-PT), Joint Decision on Motions Related to Production of Evidence, 12 December 2002, para. 26. Simic´ et al. (IT-95-9-PT), Separate Opinion of Judge Hunt, 27 July 1999, para. 25. Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, p. 4. UN Doc. S/RES/1503 (2003). A few days later, the Security Council appointed Hassan Bubacar Jallow as ICTR Prosecutor: UN Doc. S/RES/1505 (2003). ICTY Statute, art. 16(4); ICTR Statute, art. 15(4) (as amended by UN Doc. S/RES/1503 (2003)). 124 SCSL Statute, art. 15(3). UN Doc. S/RES/1504 (2003).

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politics of the Security Council.125 The United States initially chose Luis Moreno Ocampo, an Argentinian human rights lawyer, but the Argentine government opposed the appointment.126 A decade later, Ocampo was the consensus choice as first Prosecutor of the International Criminal Court. In early September 2003, Secretary-General, Boutros Boutros-Ghali nominated M. Cherif Bassiouni, an Egyptian-American law professor from De Paul University in Chicago who had been proposed by the United States. Professor Bassiouni had previously demonstrated his expertise and his dynamism in directing the Commission that had been set up by the Security Council a year earlier. But the United Kingdom, France and Russia were apparently all opposed to him, amongst other reasons because they felt his Muslim background made him unsuitable for an ethnic conflict with such religious dimensions.127 Then the Secretary-General identified a Venezuelan jurist, Ramon Escovar Salom, and he was duly appointed by the Security Council on 21 October 1993,128 on the understanding that he would be unable to serve until February 1994. In February 1994, Escovar resigned to become Venezuela’s Interior Minister.129 The search was renewed, and it was not until 8 July 1994 that the Security Council could reach consensus on the appointment of a new Prosecutor.130 A distinguished South African judge, Richard Goldstone, who had just been named to his own country’s new post-apartheid Constitutional Court, met with agreement. President Mandela agreed that Judge Goldstone could serve, but only for two years.131 Goldstone later identified his own successor, Canadian judge Louise Arbour.132 When Judge Arbour resigned, after serving three years, to take up an appointment at the Supreme Court of Canada, the diYculties in identifying a suitable candidate returned. Eventually, the Security Council

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Names that were circulated included: John Duncan Lowe (Scotland); Amos Wako (Kenya); M. Cherif Bassiouni (Egypt and United States of America); Jose Roberto Franco da Fonseca (Brazil); Christopher Amerasinghe (Canada); Charles E. RuV (United States of America). ‘UN Trims List of Candidates for Tribunal on Balkan War Crimes’, New York Times, 22 August 1993, p. 15; Paul Lewis, ‘South African is to Prosecute Balkan War Crimes’, New York Times, 9 July 1994, p. 2. David J. ScheVer, ‘Three Memories from the Year of Origin, 1993’, (2004) 2 Journal of International Criminal Justice 353, at pp. 359–360. Paul Lewis, ‘Disputes Hamper UN Drive for a War Crimes Tribunal’, New York Times, 9 September 1993, p. 10. UN Doc. S/RES/877 (1993). First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 139. UN Doc. S/RES/936 (1994). Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 36. UN Doc. S/RES/1047 (1996). Also: Third Annual Report of the ICTY, UN Doc. A/51/ 292-S/1996/665, para. 87.

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settled on Carla Del Ponte, a Swiss prosecutor who had made a name for herself litigating organised crime cases.133 Goldstone appointed an Australian prosecutor, Graham Blewitt, as his deputy. This immediately gave a decidedly common-law bent to the OYce of the Prosecutor, and prompted the Security Council to recommend that a second assistant versed in the continental European civil law system be designated.134 Inevitably, cultural issues influenced the structure and approach of the OYce of the Prosecutor. Goldstone appointed another Australian, this time a distinguished detective with experience in war crimes, as chief of investigations. When Carla Del Ponte took over, in 1999, she endeavoured to readjust the structure of the OYce along lines more familiar to continental jurists. Accordingly, the investigations side of the Prosecutor’s functions were increasingly entrusted to lawyers rather than professional investigators. Until 2003, the ICTY Prosecutor was also the ICTR Prosecutor. That year, the Security Council appointed a Gambian jurist, Hassan Jallow, as the ICTR Prosecutor. The first SCSL Prosecutor was appointed in July 2002 for a three-year term. David Crane had worked in the United States government for many years prior to being selected. Upon completion of his term, the Secretary-General appointed the Deputy Prosecutor, Desmond Da Silva, to replace Crane. Da Silva is a London-based barrister with considerable experience in West Africa. The independence of the Prosecutor is, of course, circumscribed by the very limited jurisdiction of the tribunals. No real comparison can be made with the enormous discretion given the independent prosecutor of the International Criminal Court. But because of the limited jurisdictional scope of the ad hoc tribunals, there has been no corresponding initiative to subject the Prosecutor’s discretion to judicial oversight, as is the case with the ICC. Perhaps the most controversial question involving prosecutorial discretion was the decision by the Prosecutor to investigate allegations of war crimes committed by NATO forces during the 1999 bombing campaign. The Prosecutor took the unprecedented step of actually publishing the internal report, which recommended against further investigation.135 The Prosecutor’s decision was harshly criticised by international NGOs.136 133 134

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UN Doc. S/RES/1259 (1999). Paul Lewis, ‘South African is to Prosecute Balkan War Crimes’, New York Times, 9 July 1994, p. 2. ‘Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report to the Prosecutor’, The Hague, 13 June 2000, PR/ P.I.S./510-e. Anthony J. Colangelo, ‘Manipulating International Criminal Procedure: The Decision of the ICTY OYce of the Independent Prosecutor not to Investigate NATO Bombing in the Former Yugoslavia’, (2003) 97 Northwestern University Law Review 1393.

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When the ICTY began operations, the war in Bosnia and Herzegovina was still raging, and it was not apparent that the leading suspects – those identified, for example, in the famous ‘naming names’ speech of United States diplomat Lawrence Eagleburger137 – were going to fall into the ICTY’s custody any time soon. But there was an additional issue: as the war continued, it seemed essential that the ‘suspects’ be involved in negotiating peace. When Goldstone indicted the leaders of the Bosnian Serb faction, Radovan Karadzˇic´ and Radko Mladic´, in July 1995, Secretary-General Boutros Boutros-Ghali expressed his irritation at not being consulted on the wisdom of such a step.138 The American judge at the time, Gabrielle Kirk McDonald, has described the dilemma: The Tribunal’s creation was simultaneously an act of hope, desperation and cynicism by an international community lacking a coherent policy to respond to the carnage inflicted in the former Yugoslavia. Its mandate was to help restore international peace and security, but the logical implication of this – the indictment and trial of the most senior oYcials considered to be the primary perpetrators – also was considered an unacceptable risk to the peace process.139

Ultimately, the indictment seemed to isolate Karadzˇic´ and Mladic´, and they did not attend the Dayton peace negotiations later that year. Instead, another potential suspect, Slobodan Milosˇevic´, stood in their place. Both Milosˇevic´ and the Croatian leader, Tudjman, must have been confident that they were not threatened with prosecution at the time. Goldstone justified what was described as a ‘pyramidal approach’. He would build a base by prosecuting low-level oVenders, and this would gradually lead to the ‘big fish’. But the strategy was in many ways quite opportunistic. As Goldstone explained, the future financing of the Tribunal depended on its ability to initiate prosecutions promptly, and at the time, low-level oVenders were the only thing on the market. When Goldstone presented his plans to the judges, in January 1995, they were scandalised. They threatened to issue a press release criticising Goldstone’s approach, and ultimately did adopt a resolution, on 31 January 1995, saying that the tribunal should pursue the main planners and organisers.140

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See above at p. 19. Richard J. Goldstone, For Humanity. Reflections of a War Crimes Investigator, New Haven: Yale University Press, 2000, pp. 102–103. Gabrielle Kirk McDonald, ‘Reflections on the Contributions of the International Criminal Tribunal for the Former Yugoslavia’, (2001) 24 Hastings International and Comparative Law Review 155, at p. 161. Antonio Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2 Journal of International Criminal Justice 585, at pp. 586–588.

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Nevertheless, the first trials were of relatively minor and insignificant suspects. When Louise Arbour took over as Prosecutor, in September 1996, there was already a large caseload of quite secondary oVenders in custody awaiting trial. She decided to drop several of the indictments. But there were conflicting pressures, and focusing on the senior leaders might have the consequence of downgrading other priorities, such as the prosecution of gender crimes. As Louise Arbour explained: Part of the debate concerned whether prosecuting the direct perpetrators of sexual oVences was an equally appropriate prosecutorial strategy. We discussed whether there was more to be gained by prosecuting actual perpetrators, the Mr Nobodies who actually committed the crimes, rather than deciding that the goal of prosecution was to move up the chain of command. Punishment would, in the case of sexual violence, be particularly diYcult to visit on the commanders under the doctrine of command responsibility. It would require proving that the commanders either participated in the oVences, or knew that the oVences were being committed but failed to punish those responsible.141

Then, gradually, and as the NATO forces in Bosnia and Herzegovina became more cooperative in apprehending suspects, the OTP began to mount Goldstone’s famous pyramid. The crowning moment occurred in June 2001, when political transformation in Serbia ultimately delivered Slobodan Milosˇevic´, who had been publicly indicted in May 1999, when he was still the country’s president, to The Hague. Although the prosecutorial strategy had evolved in the direction of more senior oVenders, the Security Council still felt it necessary to send signals to the Prosecutor that minor criminals did not deserve the attention (and the resources) of the ICTY. In a Resolution adopted on 30 November 2000, the Council took note ‘of the position expressed by the International tribunals that civilian, military and paramilitary leaders should be tried before them in preference to minor actors’, and recalled that the tribunals had concurrent jurisdiction with national courts. The Security Council reminded the tribunals that ‘a Trial Chamber may decide to suspend an indictment to allow for a national court to deal with a particular case’.142 The ICTR has not had the same problems, because from the earliest days it was able to secure custody over many of the most important suspects in the Rwandan genocide.143 Its big issue, in terms of prosecutorial strategy, was 141

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Louise Arbour, ‘Crimes Against Women under International Law’, (2003) 21 Berkeley Journal of International Law 196 at p. 203. UN Doc. S/RES/1329 (2000). The first Annual Report of the ICTR noted that ‘the Prosecutor has made it clear that his strategy would be patterned on that of the OYce of the Prosecutor for the International Tribunal for the Former Yugoslavia, and would give priority to investigating and

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whether or not to pursue atrocities committed by the Rwandese Patriotic Front, which fought the genocidal regime and eventually brought its downfall, taking power in July 1994 and holding it ever since. On the one hand, the ICTR had been established to ensure accountability for genocide, and directing its attention to the RPF was a bit like asking the Nuremberg Tribunal to focus on crimes committed by Jewish partisans against Nazis. Still, there was compelling evidence of RPF persecutions committed in the second half of 1994, and there was great pressure on the Prosecutor to manifest her neutrality by indicting some Tutsi suspects. Both Louise Arbour and Carla Del Ponte indicated their interest in developing this. Threatening signals from Rwanda showed just how complicated investigations might become within Rwanda itself if the Prosecutor were to continue along this route.144 By the time indictments were to have been completed, in December 2004, there was nothing to indicate that any RPF leaders had been indicted, although the existence of secret indictments cannot, of course, be ruled out. The Special Court for Sierra Leone addresses the issue by defining the jurisdiction of the institution as being limited to ‘those who bear the greatest responsibility’. In practice, the SCSL Prosecutor has focused on the leaders of the various combatant factions in the civil war. However, the phrase ‘those who bear the greatest responsibility’ lends itself to interpretation, and it is not implausible that a Prosecutor would consider it to describe economic actors, for example, rather than military leaders. The Security Council remained aloof from prosecutorial strategy at the ICTY and ICTR for several years. By 2000, there were rumblings of a completion strategy, and by 2004 the Council was being quite directive to the Prosecutor, insisting that prosecutions focus on senior leaders.145 One factor in justifying the focus on senior leaders is the existence of alternative or parallel accountability mechanisms. When a truth and reconciliation commission for Bosnia and Herzegovina was mooted in 1997, the ICTY Prosecutor was not particularly friendly to the situation. Over the years, the attitude evolved, and by 2001, the ICTY Annual Report stated: ‘The Prosecutor’s investigative strategy continues to be to prosecute the leaders of the conflict. Lower level perpetrators will continue to be subject to local/domestic prosecutions and there may, in the future, be a truth and reconciliation process of

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prosecuting individuals who had held important responsibilities in the events which occurred in Rwanda in 1994’. First Annual Report of the ICTR, UN Doc. A/51/399-S/ 1996/778, annex, para. 42. Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, paras. 86– 87. On the at-times strained relationship between the ICTR and Rwanda, see: Theoge´ne Rudasingwa, ‘The Rwanda Tribunal and its Relationship to National Trials in Rwanda’, (1998) 13 American University International Law Review 1469. On the completion strategy, see above at pp. 40–43.

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some kind.’146 Nothing equivalent to a truth and reconciliation process has ever found much purchase within Rwanda, although a somewhat unique form of domestic prosecution known as gacaca has largely replaced traditional criminal prosecutions.147 From the beginning, the SCSL has worked in parallel with a Truth and Reconciliation Commission, generally in a very positive manner, although there were a few skirmishes when the activities of the two institutions directly overlapped.148

Registry The Registry has responsibility for ‘administration and servicing’,149 and has responsibilities in this respect to both the Chambers and the Prosecutor.150 The Registry is not ‘an independent body in itself and its objective is to service the two other organs of the Tribunal’.151 The Registrar directs the Registry. According to the RPE, ‘[t]he Registrar shall assist the Chambers, the plenary meetings of the Tribunal, the Judges and the Prosecutor in the performance of their functions. Under the authority of the President, the Registrar shall be responsible for the administration and servicing of the Tribunal and shall serve as its channel of communication.’152 The Registrar has sometimes been described as the ‘neutral messenger’ of the tribunals.153 Other responsibilities include public information and external relations, preparation of minutes of meetings, conference-service facilities, and printing and publication of all documents.154 The Registrar is also responsible for the ‘outreach’ programmes of the tribunals. These are

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Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 189. See: William A. Schabas, ‘Genocide Trials and Gacaca Courts’, (2005) 3 Journal of International Criminal Justice 879. William A. Schabas, ‘A Synergistic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’, (2004) 15 Criminal Law Forum 3; Abdul Tejan-Cole, ‘The Complementary and Conflicting Relationship Between the Special Court for Sierra Leone and the Truth and Reconciliation Commission’, (2003) 6 Yale Human Rights and Development Law Journal 139. ICTY Statute, art. 17(1); ICTR Statute, art. 16(1); SCSL Statute, art. 16(1). Very little has been written on the work of the Registry. See: Dorothee de Sampayo Garrido, ‘Problems and Achievements as Seen from the Viewpoint of the Registry’, (2004) 2 Journal of International Criminal Justice 474; David Tolbert, ‘Reflections on the ICTY Registry’, (2004) 2 Journal of International Criminal Justice 480. ICTY Statute, art. 11(c); ICTR Statute, art. 10(c). UN Doc. A/51/789, annex. ICTY RPE, Rule 33(A); ICTR RPE, Rule 33(A); SCSL RPE, Rule 33(A). The text in the SCSL RPE is slightly diVerent. Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 208. ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, UN Doc. S/25704 (1993), para. 90.

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attempts to publicise the work of the tribunals amongst the populations concerned.155 The Secretary-General appoints the Registrar after consultation with the President of the Tribunal.156 The ICTY and ICTR Registrars serve a term of four years, and may be reappointed.157 The term of the SCSL Registrar is three years.158 The Registrar works under the supervision of the President of the Tribunal.159 The Registrar is assisted by a Deputy Registrar, who exercises the functions of the Registrar in the event of the latter’s absence from duty or inability to act, or upon the Registrar’s delegation.160 On occasion, the Registrar has been held to have exceeded his or her authority. For example, issuance by the Registrar of a ‘safe conduct’ to a former accused following withdrawal of the indictment was ruled ultra vires, and the document was judged to be null and void.161 Within the registries of the three tribunals are a number of ‘sections’ or ‘units’ reflecting the various responsibilities of the organ. These deal with legal issues (e.g., Registry Legal Advisory Section, Legal Unit, Judicial Support Services Division), detention (e.g., Detention Unit), information, media and communications (e.g., Public Information Section, Press Unit, Publications and Documentation Unit, Internet Unit, Communication Section, Electronic Support Services), security (e.g., Security and Safety Service), finance (e.g., Budget and Finance Section), victims and witnesses (e.g., Victims and Witnesses Section), defence and legal aid (e.g., Defence Counsel Unit, OYce of the Principal Defender, OYce of Legal Aid and Detention Matters), gender issues (e.g., Gender Advisory Unit), human resources (e.g., Human Resources Section), conference services and translation (e.g., Conference and Language Services Section). In 1997, responding to complaints from Member States and individuals, the General Assembly requested the United Nations OYce of Internal Oversight 155

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Gabrielle Kirk McDonald, ‘The International Criminal Tribunals: Crime and Punishment in the International Arena’, (2001) 7 ILSA Journal of International and Comparative Law 667, at p. 684; Lal Chand Vohrah and Jon Cina, ‘The Outreach Programme’, in Richard May et al., eds., Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, The Hague: Kluwer Law International, 2001, pp. 547–557. ICTY Statute, art. 17(3); ICTR Statute, art. 16(3); SCSL Statute, art. 16(3). The President, in turn, is to consult the judges: ICTY RPE, Rule 30; ICTR RPE, Rule 30. The SCSL RPE eliminate the requirement that the President consult the other judges on this issue. ICTY Statute, art. 17(3); ICTR Statute, art. 16(3). SCSL Statute, art. 16(3). ICTY RPE, Rule 19(A); ICTR RPE, Rule 19(A); SCSL RPE, Rule 19(A). ICTY RPE, Rule 33bis. Ntuyahaga (ICTR-98-40-T), Declaration on a Point of Law by Judge Laı¨ty Kama, President of the Tribunal, Judge Lennert Aspergren and Judge Navanethem Pillay, 22 April 1999.

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Services (OIOS) to investigate the functioning of the ICTR. The OIOS concluded that ‘not a single administrative area of the Registry functioned eVectively’. It noted a lack of proper cooperation between the Registry and the OYce of the Prosecutor, and cited gross mismanagement in almost all areas of the Tribunal.162 Secretary-General Annan immediately replaced both the Registrar and the Deputy Prosecutor.163

Detention Unit The Registry is responsible for administering and supervising the detention of prisoners for whom a final judgment has not been rendered. The statutes say nothing about facilities for detention pending trial and prior to sentence. The Secretary-General’s Report on the draft ICTY Statute completely ignored the issue. But this was one of the matters to which the judges of the ICTY turned their attention when they first met in late 1993. At the third plenary session of the ICTY judges, Rules of Detention were adopted to govern the pre-trial detention of persons charged before the Tribunal.164 The Rules of Detention reflect the preoccupation of the judges, at the time, with ensuring that a high international standard of detention facilities was observed, that there was no discrimination in the treatment of prisoners, and that attention was paid to the danger that the ethnic conflict that had ravaged the territory of the former Yugoslavia might be reproduced within the carceral population of the ICTY prison.165 The ‘United Nations Detention Unit’ is actually situated within a Dutch prison in Scheveningen, only a few kilometres from the seat of the Tribunal in The Hague. The Government of the Netherlands constructed the Detention Unit for the Tribunal. The Detention Unit was built to accommodate the Tribunal’s specific needs. The premises of the Detention Unit have been leased to the Tribunal. It is supervised by a ‘Commanding OYcer’, and the Government of the Netherlands has loaned necessary staV. The Registrar, in cooperation with the Commanding OYcer, has issued regulations concerning a disciplinary procedure for detainees, a complaints procedure and the supervision of visits to and communications with detainees.166 Attempts to challenge their application before the Chambers have been rebuVed on the grounds that the administration of the Detention Unit falls within the

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UN Doc. A/51/789, annex. Second Annual Report of the ICTR, UN Doc. A/52/582-S/1997/868, annex, para. 57. First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 98. Ibid., paras. 99–116. ‘Detention Unit Regulations to Govern the Supervision of Visits to and Communications with Detainees’, UN Doc. IT/98/Rev.3. Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 29.

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jurisdiction of the Registrar.167 The Netherlands prison administration has a number of responsibilities, ranging from practical matters, such as the provision of food and laundry and medical services, to more substantive issues, such as complaints against a decision aVecting a detainee taken by the Governor of the host prison.168 At the United Nations Detention Facility in Arusha, each detainee has a cell unit that comprises a living/sleeping area and a shower cubicle with lavatory. Each compartment also has an outdoor eating area equipped with a table, two benches and roof, as well as a ‘green space’.169 Detainees are permitted essentially unlimited communication with family and friends, although at their own expense. Detainees are entitled to obtain books, newspapers and any other means of recreational occupation they may wish to have, at their own expense, subject only to the interests of the administration of justice and the security and good order of the Detention Unit. Radio and television are also available to the detainees, and there is a fitness centre as well as an open area where inmates can play basketball and volleyball. Prisoners have a library, as well as computer equipment, and they are also provided with English classes furnished by the Tribunal.170 The Detention Facility of the Special Court for Sierra Leone is located within its compound in central Freetown, only a few metres from the courtrooms and the oYces of the institution’s various units. There are eighteen cells, but in contrast with the other tribunals, the toilet and shower facilities are common. Although rather spartan, detainees have been successful in obtaining desktop computers, printers and mobile telephones, for use in preparation of their defence.171 Prisoners arrested before construction of the unit was completed were housed in a temporary facility on Bonthe Island, which lies just oV the Atlantic coast a few hundred kilometres from Freetown.172 The International Committee of the Red Cross makes frequent visits and monitors the prison conditions in all facilities.173 Prison conditions in these countries may be subject to the supervision of various international human

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Sˇesˇelj (IT-03-67-PT), Decision, 30 September 2003, reported in Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 218; Sˇesˇelj (IT-03-67-AR73.2), Decision on the Interlocutory Appeal Concerning the Denial of a Request for a Visit to an Accused in the Detention Unit, 29 January 2004. Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, paras. 103–104. Fifth Annual Report of the ICTR, UN Doc. A/55/435-S/2000/927, annex, para. 102. Fourth Annual Report of the ICTR, UN Doc. A/54/315-S/1999/943, annex, para. 92. Norman et al. (SCSL-04-14-PT), Decision on Request by Samuel Hinga Norman for Additional Resources to Prepare his Defence, 23 June 2004. First Annual Report of the SCSL, p. 24. Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, paras. 28, 106; Fourth Annual Report of the ICTR, UN Doc. A/54/315-S/1999/943, annex, para. 93.

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rights bodies, including the European Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee Against Torture and the European Committee for the Prevention of Torture. None of these bodies has yet pronounced on whether or not it has any jurisdiction with respect to conditions in the various facilities. Some of the prisoners remain engaged in the political life of their countries. On occasion, the Registrar has taken measures to restrict or curtail such activities. For example, the SCSL Registrar limited the contact of one of the Freetown detainees with the outside world, as a disciplinary sanction, when he contacted local media without authorisation.174 Similarly, from December 2003 to June 2004, the ICTY Registrar imposed restrictions on Vojislav Sˇesˇelj, who was accused of ‘violating the Rules of Detention by directly contacting the media and participating in an ongoing Serbian parliamentary election campaign in such a way that it was likely to frustrate the Tribunal’s mandate’.175 Visitors to the prisons remain subject to the laws of the host State, and there is no right of an individual to enter one of the three countries in order to meet with a detainee. Vojislav Sˇesˇelj complained that he could not be visited by Bishop Filaret of Milesˇevo, as authorised by Rule 70 of the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal, because Bishop Filaret was being denied the right to enter any Member State of the European Union. The Trial Chamber denied the request.176 An appeal of the decision was dismissed by the Appeals Chamber, which said this issue was within the authority of the Registrar.177

Victims and Witnesses Unit The ICTY RPE require the Registrar to establish a ‘Victims and Witnesses Section’. Its role is to recommend protective measures for victims and witnesses, in accordance with article 22 of the Statute; and to provide counselling and support for them, in particular in cases of rape and sexual assault.178 The ICTY Annual Report for 1995 explained that: The Unit is the first of its kind in any international context. It is an expression of the profound concern felt by the Security Council and by 174 175 176

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Norman et al. (SCSL-2004-14), Decision Prohibiting Visits, 8 November 2004. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 176. Sˇesˇelj (IT-03-67-T), Decision, 30 September 2003, reported in Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 218. Sˇesˇelj (IT-03-67-AR73.2), Decision on the Interlocutory Appeal Concerning the Denial of a Request for a Visit to an Accused in the Detention Unit, 29 January 2004. ICTY RPE, Rule 34(A)(iii).

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the Tribunal itself about the special problems faced by people who have witnessed or suVered from the traumatic events that have taken place, and continue to take place, in the former Yugoslavia. The Tribunal recognizes that, in giving testimony before it, victims and witnesses will have to relive their experiences in a country far away from their own and without the support from relatives and friends which they would normally receive if testifying in an ordinary court of law in their own country, in time of peace. Some may be anxious about reprisals.179

The ICTR and SCSL RPE are essentially identical on this matter. The ICTR RPE use the term ‘Victims and Witnesses Support Unit’, and add to the responsibilities: ‘Develop short term and long term plans for the protection of witnesses who have testified before the Tribunal and who fear a threat to their life, property or family’.180 The SCSL RPE are even more developed, and include attention to violence against children.181 The ‘Victims and Witnesses Unit’ is a neutral body, to the extent that it has responsibility for witnesses for the defence as well as for the Prosecutor. In March 2000, the ICTR divided its Unit into two subsections, one for prosecution witnesses and one for defence witnesses.182 The Units operate with a high level of confidentiality, commensurate with the delicate nature of their tasks. In the course of an average year, they organise the testimony of several hundred witnesses. Both the ICTY and ICTR Units maintain field oYces, in Sarajevo and Kigali respectively. Specific responsibilities include briefing investigators who interview victims and witnesses and, where necessary and feasible, the arrangement of protective measures and support for them. When victims and witnesses are called upon to appear before the Tribunal, the Unit has special responsibilities to inform them about the conduct of trials and on the role and the position of witnesses in the proceedings. The Victims and Witnesses Unit may also provide psychological help and support, and coordinate protection measures. Witnesses have been relocated subsequent to testifying in order to protect them from reprisals, sometimes within their country of residence and sometimes to another country.183 The Unit’s personnel comprises professionals experienced in dealing with sexual assault, and people who are fluent in the national languages but who do not themselves come from the country. Relying upon the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, witnesses who appear before the tribunals receive appropriate 179 180 181 182 183

Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 109. ICTR RPE, Rule 34. SCSL RPE, Rule 34. Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 169. Fourth Annual Report of the ICTR, UN Doc. A/54/315-S/1999/943, annex, para. 78.

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reimbursement for necessary expenses, including childcare during the period they give testimony.184 Often witnesses are themselves refugees and lack proper travel documents, complicating the problems of international travel so that they can testify in Arusha or The Hague.

Defence Counsel Unit The Registrar has two principal areas of responsibility with respect to defence counsel. First, the Registrar is charged with ensuring that counsel meet certain standards of professionalism and ethical conduct.185 Second, the Registrar provides legal aid for indigent defendants.186 In the ICTY, the structure for these activities was originally called the Defence Counsel Unit, sometimes described as a ‘channel of communication between defence counsel and the organs of the Tribunal’. Later, this was transformed into the OYce of Legal Aid and Detention Matters.187 At the ICTR, the Registry operates a Defence Counsel and Detention Management Section. The SCSL Registry has taken an innovative approach, establishing what is called the OYce of the Principal Defender. The supervision and regulation of lawyers in most modern justice systems is largely undertaken by the profession itself, through a bar association or similar organ whose authority and legal status is conferred by legislation. In the absence of anything analogous on an international level, many of the responsibilities normally assumed by a professional association have fallen to the Registrar, with limited guidance in the RPE. It was not until late 1996, more than three years after the establishment of the ICTY and two years since defence counsel first appeared in proceedings, that the Registrar proposed the preparation of a code of conduct to govern professional behaviour.188 The

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Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 116; Third Annual Report of the ICTY, UN Doc. A/51/292-S/1996/665, annex, para. 120. ICTY RPE, Rule 44(A); ICTR RPE, Rule 44(A); SCSL RPE, Rule 44(A). ICTY RPE, Rules 44(C), 45; ICTR RPE, Rules 44(C), 45; SCSL RPE, Rule 45. Seventh Annual Report of the ICTY, UN Doc. A/55/273-S/2000/777, annex, para. 229. Rule 44(D) of the ICTY RPE provide for an ‘Advisory Panel’ to assist the President and the Registrar in matters concerning defence counsel. The ICTY panel is composed of two lawyers drawn by lot from the Registrar’s roster of approved counsel and four lawyers proposed by the International Bar Association and the Union Internationale des Avocats (First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 135). There has been no mention of it in the Annual Reports of the ICTY since 1999. There is nothing comparable in the ICTR or SCSL RPE. However, article 29 of the ICTR Directive on the Assignment of Defence Counsel, Directive No. 1/94, provides for an ‘advisory council’, composed of representatives of the major international bar associations. The last report of its activity dates to 1998 (Third Annual Report of the ICTR, UN Doc. A/53/219-S/1998/737, para. 91).

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Code was promulgated in June the following year.189 It attempted to balance the diVering approaches to professional ethics recognised in adversarial and inquisitorial procedural systems,190 although it relied extensively on the American Bar Association’s Model Rules of Professional Conduct.191 The Code applies to defence counsel, whether or not they are subject to the legal aid scheme, but not to lawyers working for the OYce of the Prosecutor.192 Similar Codes of Conduct for defence counsel have been adopted by the other two tribunals.193 Because these matters are best addressed by a self-regulating profession, at least in national legal systems, the tribunals eventually understood that they needed to encourage the establishment of a genuine professional body. This was done with a degree of caution, however, it being recognised that there were diYculties with such analogies. As David Tolbert has explained: One of the long-term issues that the ICTY has faced is the lack of a properly functioning bar association for defence counsel. In domestic jurisdictions much of the role for education of lawyers, creation of standards and discipline is handled by the relevant bar association. However, establishment at the ICTY of a defence counsel association that would have the wide powers of a traditional domestic bar association would be problematic. At this stage, the number of defence practitioners at the ICTY is relatively small, and there is the danger that such a small group could be infected by cronyism or would take too narrow a view on a variety of subjects.194

In 2002, in accordance with decisions taken by the Plenary of judges, the ICTY established an Association of Defence Counsel of the ICTY.195 This resulted from an ad hoc working group composed of representatives of the various concerned groups, including judges, the OYce of the Prosecutor, defence counsel appearing before the Tribunal and representatives of the Dutch Bar. The RPE were revised to require counsel representing accused persons at the Tribunal to belong to the Association.196 Until that time, 189

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Michael Bohlander, ‘International Criminal Defence Ethics: The Law of Professional Conduct for Defence Counsel Appearing Before International Criminal Tribunals’, (2000) 1 San Diego International Law Journal 75. Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, annex, para. 88. Mark S. Ellis, ‘The Evolution of Defence Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia’, (2003) 37 New England Law Review 949, at p. 967. David Tolbert, ‘The ICTY and Defence Counsel: A Troubled Relationship’, (2003) 37 New England Law Review 975, at p. 985. In accordance with ICTR RPE, Rules 44(B), 46(G) and SCSL RPE, Rules 44(B), 46(G). Tolbert, ‘The ICTY and Defence Counsel’, at p. 985 (reference omitted). Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 11. ICTY RPE, Rule 44(A)(iii).

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discipline was handled by the Registrar, who could remove counsel from the roster, and by the Tribunal’s Chambers themselves, within the context of contempt of court proceedings197 and litigation concerning conflict of interest.198 The Association of Defence Counsel can expel a member, with the automatic consequence of disqualifying an individual from practice before the Tribunal. It is also responsible for professional training, a function that has been devolved to it from the Registry under a ‘gentlemen’s agreement’. The Association has set up a programme of mandatory courses for its members.199 According to the 2004 Annual Report of the ICTY, the Registry has developed an ‘often fruitful, if somewhat turbulent relationship’ with the Association of Defence Counsel. The Registry says it remains hopeful that the Association ‘can become a constructive force in improving the institution overall, in particular policing the conduct of its own membership’.200 The SCSL’s OYce of the Principal Defender is one of the more interesting innovations in this area. In an attempt to avoid some of the shortcomings with organisation of the defence at the other two tribunals, the SCSL first established a Defence OYce, with responsibility for ensuring the rights of suspects and accused persons, and providing some counterbalance to the OYce of the Prosecutor.201 The Defence OYce actively recruited qualified counsel to come to Freetown and represent accused persons. It also acted as duty counsel for persons at the time of arrest and in subsequent proceedings, until permanent counsel was retained by the accused. In March 2004, the SCSL appointed a ‘Principal Defender’, who falls under the authority of the Registry in a technical sense, but who acts independently.202 According to the first Annual Report of the SCSL, ‘[i]t is the Registrar’s intention that the OYce will, in the future, become as fully independent as the [OYce of the Prosecutor]’.203 At the SCSL it is the Principal Defender and not the Registrar

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Tadic´ (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000; Aleksovski (IT-95-14/1-T), Finding of Contempt of the Trial Chamber 1, 11 December 1998; Simic´ et al. (IT-95-9-R77), Judgment in the Matter of Contempt Allegations Against an Accused and his Counsel, 30 June 2000. Simic´ et al. (IT-95-9-PT), Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic, 25 March 1999; Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 118. Ellis, ‘Evolution of Defence Counsel’, at p. 972. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, ICTY, para. 361. SCSL RPE, Rule 2(A): ‘Defence OYce: The OYce established by the Registrar for the purpose of ensuring the rights of suspects and accused in accordance with the Statute and the Rules of Procedure and Evidence.’ Also: SCSL RPE, Rule 45. SCSL RPE, Rule 45. ‘First Annual Report of the President of the Special Court for Sierra Leone, for the period 2 December 2002 – 1 December 2003’, p. 16.

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who is responsible for the assignment of counsel and the negotiation of fees with defence lawyers. All three tribunals have established a legal aid scheme, based on a Directive on the assignment of Defence Counsel adopted by the Registrar.204 Legal aid systems with varying degrees of generosity and sophistication exist in most developed countries, having gradually replaced an older tradition among lawyers by which poor defendants received pro bono services. Their dynamics are well known to practitioners, and generally involve a more or less permanent state of tension, with the legal aid authority trying to get as much in the way of legal services for the least amount of money, and defence lawyers trying to do the opposite. The situation at the ad hoc tribunals is no diVerent. The vast majority of defendants have claimed indigence, with the result that the costs of their defence have been borne by the tribunals. This represents a very significant expense, perhaps 15 per cent of the total budget of the tribunals.205 For defence lawyers, there is the opportunity to make a substantial sum of money in a single case. Yet practitioners are required to spend much of their time in The Hague, Arusha or Freetown, and this can have disastrous consequences for the rest of their legal practice. Remuneration under the legal aid plan was not always very generous, but it has risen by perhaps 500 per cent over the years, as the realities of the time and expertise necessary for such complex litigation became evidence.206 In 2004, it was estimated that an experienced lead counsel could earn more than US $230,000 per year, an income competitive with the highest salaries paid to the personnel of the tribunal, including the judges. Designed to attract counsel of high quality from Western Europe and North America, such fees constitute a windfall for lawyers from the former Yugoslavia.207 There has been a tendency to move to a ‘lump sum’ system of payment rather than an hourly or daily rate. Timebased payment has the weakness of encouraging dilatory and frivolous proceedings so as to lengthen the trial and, accordingly, the amount of fees paid to defence counsel.208

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Stuart Beresford, ‘The International Criminal Tribunal for the Former Yugoslavia and the Right to Legal Aid and Assistance’, (1998) 2 International Journal of Human Rights 49. Tolbert, ‘The ICTY and Defence Counsel’, at p. 982. Ellis, ‘Evolution of Defence Counsel’, at pp. 952–954. Ibid., pp. 953–954. ‘Comprehensive Report on the Progress made by the International Criminal Tribunal for the Former Yugoslavia in Reforming its Legal Aid System’, UN Doc. A/58/288, paras. 23–27; Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 323; Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, paras. 246, 357.

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One of the recommendations made by the 1999 expert report was that the chambers provide oversight of fees paid to defence counsel.209 However, the Appeals Chamber has established that the primary responsibility for establishing the appropriate amount of remuneration to be paid under the legal aid system rests with the Registrar. It dismissed an appeal from a Trial Chamber decision that had refused to authorise additional funds for the preparation of a defence at the pre-trial stage. The newly minted Association of Defence Lawyers was denied leave to intervene in the case as amicus curiae.210 In 2004, defence counsel at the ICTR went on strike for several days in protest against decisions by the Registrar following ‘a more vigorous assessment of the time spent on activities charged by defence team members’.211 Control of the professional qualifications of defence counsel can be achieved somewhat indirectly by the Registrar in the imposition of conditions for eligibility under the legal aid scheme. Concerns that defence lawyers with inadequate experience were representing defendants led to an amendment of the ICTR RPE so as to require that any assigned counsel have at least ten years’ relevant experience.212 This did not prevent someone with less experience acting on behalf of a client who was funding the defence from his or her own resources. But because the vast majority of defendants benefit from legal aid it had the practical consequence of eliminating younger and less-experienced professionals. Commenting on this development, Michael Greaves protested that with the amendment ‘a vast swathe of legal practitioners and junior University Professors is rendered ineligible for practice before the ICTR’.213 The expert report on ICTY procedure recommended that its RPE be changed along the same lines, and that the standard be five years of professional experience rather than ten.214 In 2000, the ICTY Directive dealing with qualifications for assigned counsel was amended to require ‘reasonable experience in criminal and/or international law’.215 But, according to Mark Ellis, ‘these new standards are still vague 209

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‘Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135’, UN Doc. A/53/850, annex, para. 67. However, the recommendation was not particularly welcomed. See Mundis, ‘Improving the Operation’, at p. 769. Ojdanic´ (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003. Ninth Annual Report of the ICTR, UN Doc. A/59/183-S/2004/601, para. 69. ICTR RPE, Rule 45(A). Discussed by Tolbert, ‘The ICTY and Defence Counsel’, at p. 980. Michael Greaves, ‘The Right to Counsel Before the ICTY and the ICTR for Indigent Suspects: An Unfettered Right?’, in Richard May et al., eds., Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, The Hague: Kluwer Law International, 2001, pp. 177–185, at p. 179. ‘Report of the Expert Group to Conduct a Review of the EVective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda’, UN Doc. A/54/634, paras. 209–210. Directive on the Assignment of Defence Counsel, Directive No. 1/94, art. 14(A)(iii).

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and ineVectual in attracting the most qualified lawyers’.216 Another attempt to regulate assigned counsel was not based on qualifications but on geographic origin. The concept is familiar to international organisations, like the United Nations, where there are attempts at fair distribution of employment opportunities based on country and region of origin. But ‘it is nonsense to apply it to defence counsel, who are by definition not UN staV ’.217 For some time, the ICTR Registry established its roster of available counsel under the legal aid programme, taking into consideration the country the lawyer came from. In practice, it had the eVect of favouring African lawyers, and limiting the numbers of Canadian and French lawyers, who had proven popular with ICTR defendants. The practice was criticised by the judges,218 and then abandoned. Legal aid at the tribunals has been plagued by what is known as ‘feesplitting’. Some defendants have agreed to appoint an assigned counsel but only on the condition that the latter remits a percentage of the fees paid through the legal system to the defendant, or otherwise provides some form of gift or remittance. The practice may also involve hiring friends or relatives as investigators using Tribunal funds,219 or presenting expensive gifts to the accused.220 The tribunals have condemned fee-splitting, and the ICTR Code of Conduct has been amended so as to treat the matter as an ethical violation.221

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Ellis, ‘Evolution of Defence Counsel’, p. 957. Ibid., p. 981. E.g., Akayesu (ICTR-96-4-A), Decision Relating to the Assignment of Counsel, 27 July 1999, p. 1. ‘Report of the OYce of Internal Oversight Services on the Investigation into Possible Fee-Splitting Arrangements Between Defence Counsel and Indigent Detainees at the International Criminal Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia’, UN Doc A/55/759; ‘Report of the OYce of Internal Oversight Services on the Follow-up Investigation into Possible Fee-Splitting Arrangements Between Defence Counsel and Indigent Detainees at the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between l January and 31 December 1994 and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991’, UN Doc. A/56/836. See also: UN Doc. A/RES/55/250; UN Doc. A/RES/ 56/278. Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 185; Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, para. 102. ‘Code of Professional Conduct for Defence Counsel for the International Criminal Tribunal for Rwanda’, art. 5bis; ‘Code of Professional Conduct for Counsel Appearing Before the International Tribunal’, UN Doc. IT/125 REV. 1, art. 18.

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Amici curiae and intervenors The Rules authorise a Chamber, ‘if it considers it desirable for the proper determination of the case’, to invite or grant leave to a State, organisation or person to appear before it and make submissions on any issue specified by the Chamber.222 At the ICTY and ICTR, this is known as the amicus curiae.223 The SCSL RPE identify such participants in cases before the Court as ‘intervenors’.224 Many amici curiae have tended to be advocates for one side or another rather than neutral and independent ‘friends of the court’ and, by and large, they have taken the side of the Prosecutor. One Trial Chamber noted that ‘the general definition of amicus curiae does not call for impartiality on the part of the filing party. Rather it takes into consideration that such briefs are filed by a party, not a part of the action, but one with strong interests in or views on the subject matter before the court.’225 Often, the amicus mechanism has provided States with a way to participate in proceedings. At the deferral application in the Tadic´ case, which was the ICTY’s very first proceeding, counsel for the Federal Republic of Germany and counsel for Dusˇko Tadic´ appeared as amici curiae. The Federal Republic of Yugoslavia (Serbia and Montenegro) was also invited to appear on this basis, but declined to do so.226 The following year, when Tadic´ contested the establishment of the Tribunal, the United States of America submitted an amicus curiae brief based ‘on its special interest and knowledge as a permanent member of the United Nations Security Council and its substantial involvement in the adoption of the statute of the Tribunal’. It argued that objecting to the creation of the Tribunal because no such action had been taken before by the Security Council ‘would condemn the international community to refrain from actions necessary to maintain the peace because such actions had not been taken in the past [and] would eVectively prevent the international community from developing and advancing the system of international law’.227 When the ICTR decided to withdraw an indictment, the Government of Belgium applied, as amicus curiae, for an order to transfer the accused person to Belgium for trial rather than to release him. The accused was 222 223

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ICTY RPE, Rule 74. Herve´ Ascensio, ‘L’amicus curiae devant les jurisdictions internationales’, [2001] Revue ge´ne´rale de droit international public 897. SCSL RPE, Rule 74. Bagosora (ICTR-96-7-T), Decision on the Amicus Curiae Application by the Government of the Kingdom of Belgium, 6 June 1998. Tadic´ (IT-94-1-D), Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral to the Competence of the International Tribunal in the Matter of Dusˇko Tadic´, 8 November 1994. The FRY did appear subsequently, however: e.g., Erdemovic´ deferral, Third Annual Report of the ICTY, UN Doc. A/51/292-S/1996/ 665, annex, para. 29. Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 18.

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suspected of participating in the murder of Belgian soldiers.228 Rwanda was granted amicus status in the review of the decision to release Jean-Bosco Barayagwiza.229 But leave was denied to Croatia when it sought authorisation to submit an amicus brief in a Rule 61 hearing on whether there was an international armed conflict between Croatia and Bosnia and Herzegovina.230 Similarly, in a property-related case, the ICTR denied amicus curiae status to the Government of Rwanda.231 Many human rights NGOs and individual academics have successfully applied for this status. When proceedings were reopened in Furundzˇija because of the Prosecutor’s failure to disclose evidence that the victim had sought psychological therapy, the Trial Chamber authorised an amicus curiae brief from a group of eleven scholars of the international human rights of women and representatives of non-governmental organisations, and another from the Centre for Civil and Human Rights of the Notre Dame Law School.232 In several cases, leave to submit amicus briefs has been refused.233 The Appeals Chamber denied leave to two important organisations of the defence bar, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Defence Attorneys Association, because their submissions addressed principally the ‘merits and deficiencies’ of the legal aid system, and because such submissions were ‘not desirable for the proper determination of this case’.234 African Concern, a non-governmental organisation, applied for leave to submit an amicus brief with respect to an order for restitution under article 23 of the ICTR Statute. Leave was denied because the indictment contained no charges of unlawful taking of property.235 228

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Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999. Belgium also intervened as amicus curiae in Bagosora (ICTR-96-7-T), Decision on the Amicus Curiae Application by the Government of the Kingdom of Belgium, 6 June 1998. Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. Rajic´ (IT-95-12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996. Bagosora et al. (ICTR-98-41-T), Decision on Amicus Curiae Request by the Rwandan Government, 13 October 2004. Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 35; Furundzˇija (IT-9517/1-A), Judgment, 21 July 2000, para. 12. E.g., Illias Bantekas, University of Westminster, on the basis of his extensive research on the doctrine of command responsibility, in Hadzˇihasanovic´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12 November 2002. Milutinovic´ et al. (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 18. Musema (ICTR-96-13-T), Decision on an Application by African Concern for Leave to Appear as Amicus Curiae, 17 March 1999; Bagosora et al. (ICTR-98-41-T), Decision on Amicus Curiae Request by African Concern, 23 March 2004.

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In at least one case, an amicus curiae was authorised to intervene in an ex parte proceeding. The International Committee of the Red Cross did more than simply make written submissions, as the RPE suggest, but actually took part in the hearing on whether or not the testimony of a former ICRC employee was privileged.236 When Slobodan Milosˇevic´ indicated his intention to act in his own defence, an ICTY Trial Chamber determined it was ‘desirable and in the interests of securing a fair trial that an amicus curiae be appointed as permitted by the Rules of Procedure and Evidence, not to represent the accused but to assist in the proper determination of the case, and pursuant to Rule 74’.237 Three lawyers were soon appointed, and shortly afterward they filed a motion challenging the jurisdiction of the Tribunal.238 They remained active throughout the trial until events took a diVerent turn, and the Trial Chamber decided to impose counsel on the accused. Indeed, one of the amici, Stephen Kay, was appointed as counsel and then, following an Appeals Chamber decision, ‘standby-counsel’.239 This obviated the need for an amicus curiae and the appointment was brought to an end, although one of the amici remained engaged as an advisor to the judges on international humanitarian law. Given that the judges themselves are chosen for their expertise in this area, such an appointment seems redundant. The RPE provide for appointment of an amicus curiae in a case where a Chamber has reason to believe that a person may be in contempt. Normally, the Prosecutor would investigate the matter. But should the Prosecutor be in a conflict of interest, for example, where it is the Prosecutor himself or herself who is charged, the Chamber may direct the Registrar to appoint an amicus curiae to investigate and to report to the Chamber as to whether there are suYcient grounds for initiating contempt proceedings.240 This is not the classic amicus curiae at all, but more of a ‘special prosecutor’ position. Amicus briefs have shown the potential to derail legal proceedings, as Amnesty International so clearly demonstrated in the Pinochet case. Amnesty

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Simic´ et al. (IT-95-9-PT), Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross, 7 June 2000. Milosˇevic´ (IT-99-37-PT), Order Inviting Designation of Amicus Curiae, 30 August 2001. Milosˇevic´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001. Milosˇevic´ (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004. On the distinction between standby counsel and an amicus curiae, see: Sˇesˇelj (IT-03-67-PT), Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Sˇesˇelj with his Defence, 9 May 2003, para. 29. ICTY RPE, Rule 77(C). The Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/ 2004/627, annex, para. 195, notes that an amicus curiae has been appointed to deal with a confidential contempt case which is pending before it.

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insisted on intervening in the extradition proceedings as amicus curiae, which had the unintended consequence of putting one of the judges, Lord HoVmann, in a conflict of interest. The House of Lords ruling was later overturned for this reason.241 Although no similar disasters have occurred at the ad hoc tribunals, the zealotry of human rights NGOs has sometimes left defence counsel with compelling arguments, in cases where there have been previous relationships between judges and NGO experts or activists.242

Financing The ICTY and ICTR are financed out of the regular budget of the United Nations.243 The provisions in the ICTY Statute use the phrase ‘in accordance with article 17 of the Charter of the United Nations’, a reminder of the very significant role that the General Assembly plays in the operation of the tribunals. Article 17 of the Charter gives the General Assembly responsibility for approving the budget of the Organisation. The provision provoked controversy in the Fifth (Budgetary) Committee of the General Assembly, which questioned whether the Security Council had properly respected the division of responsibilities within the Charter. Because it is the General Assembly which approves the budget and apportions the expenses of the Organisation, members of the Fifth Committee questioned whether the Security Council was entitled to decide that these would be borne by the ‘regular budget’, as opposed to voluntary contributions or a special account. The Secretariat prepared a note explaining that in its opinion the Council was entitled to prepare a comprehensive statute, including its conclusions with respect to financing.244 The controversy influenced the Security Council when it drafted the ICTR Statute, because the equivalent provision says that the expenses of the Tribunal ‘shall be expenses of the Organization in accordance with Article 17 of the Charter of the United Nations’, without specifying what form they take.245 Challenged by a range of competing interests and, in the first part of the 1990s, a grave financial crisis provoked by a near-default of the United States in payment of its dues, the General Assembly initially provided the

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R v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2), [1999] 1 All ER 577 (HL). See, e.g., Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, paras. 167–171, 194–195, 206–207, 213–214. ICTY Statute, art. 32; ICTR Statute, art. 30. UN Doc. A/47/1002, para. 12. See also: Larry D. Johnson, ‘The International Tribunal for Rwanda’, (1996) 67 International Review of Penal Law 211, at p. 230. ICTR Statute, art. 30.

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ICTY and ICTR with a paltry and inadequate budget.246 The annual budget for the ICTY gradually increased, from about $10 million in 1994 to more than ten times that amount a decade later. The ICTR budget was of the same scale of magnitude, though somewhat less than that of the ICTY, a reflection of its smaller size. A little of the shortfall has been made up by voluntary contributions, both in money and in kind. In 1993, the General Assembly invited Member States and other interested parties to make voluntary contributions to the Tribunal.247 For example, as the ICTY was starting up, the United States pledged a $3 million computer system and seconded twenty-two professional staV to the OYce of the Prosecutor.248 Support has also come, although more indirectly, through contributions of non-governmental organisations, which are often funded by bodies like the European Union. Others who have assisted the tribunals include universities and even private corporations, such as IBM.249 Though very important in the first years of operation, as the overall budget has grown the actual proportion attributable to voluntary contributions has declined significantly.250 The Secretary-General proposed to fund the SCSL on the same basis as the other two tribunals, out of the general funds of the United Nations, but the Security Council did not endorse this approach. Instead, the Court’s resources have come exclusively from voluntary contributions. The scale of the SCSL is much smaller than that of the other two tribunals, as can be seen from a glance at its budget. The Secretary-General had originally planned on a Court with a three-year budget of slightly more than $100 million, but diYculties in raising money from donors forced a retrenchment to $57 million. Funding through voluntary contributions, whether partial, as in the case of the ICTY and ICTR, or full, as in the case of the SCSL, has both advantages and disadvantages. On the one hand, it may promote greater financial responsibility and accountability. But it makes the institutions vulnerable to inappropriate influences and even manipulation, something incompatible with judicial bodies. Neither Prosecutor nor judges should be forced to contemplate the consequences for the Tribunal should they proceed with investigations and indictments that aVect, even indirectly, the interests of a major donor State.

246

247 248

249 250

See, e.g., Michael P. Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’, (2000) 49 DePaul Law Review 925, at pp. 934–938. UN Doc. G/RES/47/235. First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 186; Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, para. 146. Seventh Annual Report of the ICTY, UN Doc. A/55/273-S/2000/777, annex, para. 257. Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 329.

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INDEX

Abi-Saab, Georges, 233, 242 abuse of process, 539–542 academic writings as source of tribunal law, 107, 112 accountability, individual. See individual accountability accused appeal, right of, 438–439 detention of. See detention of accused immunity from national criminal jurisdiction, 433 joinder of, 368–371 prejudice, cumulative convictions causing, 434 rights of, 501–503 abuse of process, protection from, 539–542 appeal, 438–439, 533–535 case files, access to, 515 charge, right to be informed of, 519–520 counsel, right to, 171, 523–531 equality before the law, 511–513 equality of arms, 513–514 habeas corpus, 539 independent and impartial tribunal and judges, 501–503 international human rights mechanisms, access to, 542–544 interpreter, right to, 531–532, 592 like cases treated alike, 438 presence at trial, 419–422, 523 presumption of innocence, 516–519 public hearing, 514–516

self-representation, 528–531 silence, right of, 391, 419, 429, 532–533 speedy trial, right to, 414, 521–523 wrongful prosecution, redress for, 537–539 statement at trial, 428 suspects vs., 358 actus reus (physical element of crimes), 292–296 ad hoc tribunals. See tribunals ad litem judges, 508, 594, 595, 596 Additional Protocols to the Geneva Conventions. See also ‘Table of legislative provisions’ for citation of specific articles Additional Protocol I adoption of, 228 applicable conflicts, 242 civilians, defined, 249 equality before the law in, 511 grave breaches provisions, 228, 241 war crimes, 275–282, 285 Additional Protocol II adoption of, 232–235 crimes against humanity, 211 ICTR and SCSL Statutes covering serious violations of, 269 legality and legitimacy of tribunals, 61, 66 war crimes, 275–282, 285 customary international law, as codification of, 98, 99 grave breaches provisions, 228, 241 norms, process of development and acceptance of, 98 war crimes, 275–282, 285

678

INDEX

adequate counsel, right to, 171, 523–531 administration of tribunals. See structure and organisation of tribunals admissibility of evidence, 453–467 adversarial vs. inquisitorial law. See civil, common and ‘other’ law jurisdictions, joint use of traditions of affidavits, 477 age of offender as mitigating factor, 576 agency test, 243–245 aggravating and mitigating circumstances, 566 Agius, Carmel, 417 aiding and abetting as general principle of law, 302–309 genocide, 184 Akayesu, Jean-Paul, 150, 211, 239, 454–455, 581. See also ‘Table of cases’ Akhavan, Payam, 232 Albright, Madeleine K., 20 Aleksovski, Zlatko, 536. See also ‘Table of cases’ alibi, as defence, 339–341 alternate judges at SCSL, 596 Amega, Atsu-Koffi, 27 amendment of indictments, 371–374 American Bar Association, 410, 418, 422, 570 amici curiae or intervenors, 411, 619–622 amnesty as defence, 337–339 SCSL and, 34, 35–36, 37, 337–339 Amnesty International amicus briefs submitted in Pinochet case by, 621 ICTY, creation and establishment of, 22 Anglo-American vs. European law jurisdictions. See civil, common and ‘other’ law jurisdictions, joint use of traditions of

679

Annan, Kofi, 609 anonymous testimony, 474, 503 apartheid as crime against humanity, 194 appeal and Appeals Chambers, 439–443 detention of accused prior to appeal, 433 disposition, 412, 432–433, 448–449 essentially common chamber for ICTR and ICTY, 109 fact, errors of, 445–446 interlocutory appeals, 441, 534 jurisdiction, 441 law, errors of, 229, 444–445 new evidence admitted on appeal, 447, 483–484 Notice of Appeal, 443 Pre-Appeal Judge or Pre-Hearing Judge, 443, 451 procedure on appeal, 443–444 review heard by Appeals Chamber, 450–451 right of appeal, 438–439, 533–535 RPE, non-compliance with, 447 rulings on grounds other than those advanced by appellant, 446–447 self-review, 448 standard of review, 444–448 structure and organisation of tribunals, 590 appearance, initial, 388–389 applicable law. See sources of law Arap Moi, Daniel, 134 Arbour, Louise, 3, 86, 348, 366, 379, 383, 403, 602, 605, 606 Argentina and creation and establishment of ICTR, 26 armed conflict crimes against humanity requiring presence of, 187–189, 194 international crimes not necessarily tied to, 152 law of war, concept of, 226, 228 war crimes and. See war crimes arrests, 377–383 Askin, Kelly, 497 Association of Defence Counsel of the ICTY, 614–615

680

INDEX

attack not same as armed conflict for purposes of crimes against humanity, 194 attorneys. See counsel audi alteram partem, as general principle of law, 106 Australia, legacy and influence of tribunals in, 46 Austria, service of tribunal sentences in, 579, 580, 582 aut dedere aut judicare, 158 authoritative information allowed as evidence, 477–479 Babic´, Milan, 427. See also ‘Table of cases’ Badinter, Robert, 13, 124 Bagilishema, Ignace, 433, 543. See also ‘Table of cases’ Bagosora, The´oneste, 124, 522. See also ‘Table of cases’ Bahamas, service of tribunal sentences in, 579 ‘balance of probabilities’ standard for evidence, 465 Balkan Wars (WWI), 259 Barayagwiza, Jean-Bosco, 182, 379, 421, 543, 620. See also ‘Table of cases’ Barletta-Calderera, Giacomo, 421 Bassiouni, M. Cherif, 17, 602 Belarus, service of tribunal sentences in, 579 Belgium ‘eVects’ jurisdiction, 131 Iraqi tribunal, proposal for, 12 primacy in concurrent jurisdiction, 124 ratification of Rome Statute by, 100 service of tribunal sentences in, 580 as third party, 411 Belize, service of tribunal sentences in, 579 Benin, service of tribunal sentences in, 580 Bentham, Jeremy, 77 Berewa, Solomon, 39 ‘best evidence rule’, 458

bias, disqualification of judges on grounds of, 415, 416–419 biological experimentation, as war crime, 251 biological or chemical weapons, 261 birth, genocidal measures preventing, 177–178 Bizimungu, Pasteur, 27 Blasˇkic´, Tihomir, 380, 385, 391, 584. See also ‘Table of cases’ Blewitt, Graham, 474, 603 bodily harm, serious. See serious bodily or mental harm Bosnia and Herzegovina, 130, 133, 411, 579. See also International Criminal Tribunal for the former Yugoslavia Boutros-Ghali, Boutros, 602, 604 Brazil ICTY, creation and establishment of, 21 on temporal jurisdiction of ICTY, 133 budget for tribunals, 6, 32, 39, 41, 352, 493, 622–623 burden of proof, 463–467 Bureau, 599 Burkina Faso, service of tribunal sentences in, 579 Burundi on territorial jurisdiction of tribunals, 130 Bush, George W., 11 Cambodia mixed tribunals in, 6 opposition to tribunal in, 32 proposal to establish tribunal for, 4, 33, 439 Cameroon, arrest of Barayagwiza in, 379 Canada crimes against humanity, national prosecutions for, 195 ICTY, creation and establishment of, 21 legacy and influence of tribunals in, 45 capital punishment, exclusion of, 546

INDEX

Cardenas (Argentine UN representative), 26 Carnegie Foundation, 9, 259 Carrington, Lord, 14 case files, access to, 515 Cassese, Antonio, 67, 74, 86, 102, 105, 118, 120, 190, 291, 332, 349, 380, 517 Chambers, 593–594 Bureau, 599 judges of. See judges Management Committee, 599 officers and members, 598–600 Presidents, 593, 594, 598–599 character, evidence of, 499 charge initial appearance, charge and entry of plea, 388–389 right to be informed of, 519–520 Charter of the International Military Tribunal (1945). See also ‘Table of legislative provisions’ for citation of specific articles appeals not countenanced by, 439 creation and establishment of tribunals, 3, 8, 10 crimes against humanity, 23, 24, 203, 215, 222 on evidence, 452 general principles of law not enumerated in, 124, 289, 523 immunities of heads of State, relaxation of, 158, 189, 231 as source of tribunal law, 94, 98, 99, 100, 237, 481, 551 torture not specifically mentioned in, 206 war crimes, 227, 228, 258 chemical or biological weapons, 261 children forcible transfer of children as genocide, 178 military service, pressed into, 140–142, 279–285 personal jurisdiction over juvenile offenders, 140–142

681

sexual oVences against, Sierra Leone law incorporated into SCSL Statute regarding, 119, 152 as witnesses, 471 China Cambodia, opposition to international tribunal in, 32, 312 ICTR, creation and establishment of, 28, 29 ICTY, creation and establishment of, 17, 20 Christopher, Warren, 19, 27 Churchill, Winston, 501 circumstances, as sentencing factor aggravating and mitigating circumstances, 566 individual circumstances of convicted person, 563 cities and towns undefended, attacks on, 262 wanton destruction as war crime, 209, 261–262 citizenship and personal jurisdiction, 142–144 civil, common and ‘other’ law jurisdictions, joint use of traditions of evidentiary matters, prominence of common law practice in, 348 general principles of law, 291 hearsay evidence, 479 in OTP, 601 procedural issues, 348–350 rights of accused, 536 sentencing practice, 552 trial and post-trial procedure, 410 civilian populations crimes against humanity directed against, 189–191 hostage taking as war crime, 253 imprisonment of as crime against humanity, 205 as war crime, 253–254 military necessity as defence to attacks on, 345–347

682

INDEX

civilian populations (cont.) war crimes, attacks on as grave breaches of Geneva Conventions, 248–249 international humanitarian law, other serious violations of, 282–283 Clinton, Bill, 19, 20 co-perpetrators, 308 Cold War’s interference with establishment of international criminal jurisdiction, 11 collective punishment as war crime, 279 collective vs. individual guilt, 70, 71 commission, 298 common vs. civil law jurisdictions. See civil, common and ‘ other’ law jurisdictions, joint use of traditions of commutation of sentence, 580, 582 compensation judges, remuneration of, 226, 509 for victims, 150, 578 wrongful prosecution, redress for, 537–539 competence, 123. See also jurisdiction la compe´tence de la compe´tence (Kompetenz-Kompetenz), 50, 92 completion strategy initial and evolving plans for, 6, 24, 40–43 OTP and, 606 rights of accused and, 544 trial and post-trial procedure, 414, 451 complicity aiding and abetting, 302–309 in genocide, 178–179, 183, 305, 324 concurrent jurisdiction with national courts, deferral requests, 383–386, 550 primacy in, 123, 129, 132 concurrent sentences, 551 conditional release, 582 conduct of counsel, 613–618

Conference for Security and Cooperation in Europe (CSCE) capital punishment, opposition to, 547 ICTY, creation and establishment of, 15, 21 conferences Pre-Defence Conference, 406 Pre-Trial Conference, 406 Status Conference, 405 confinement. See entries at detention; imprisonment consecutive sentences, 551 consent as defence, 341–343 rape and sexual assault evidence, 497–498 conspiracy, genocidal, 179–181 Constitution of Sierra Leone, 57 contempt, subject-matter jurisdiction over, 152 continuing crimes, jurisdiction over, 125 Convention for the Prevention and Punishment of the Crime of Genocide, 1948 (Genocide Convention). See also ‘Table of legislative provisions’ for citation of specific articles creation and establishment of tribunals, 3, 12, 18, 26, 381 ratification by Rwanda, 156 subject-matter jurisdiction of tribunals over crimes of genocide and, 168, 169, 176, 179, 181 travaux pre´paratoires of, 299 universal jurisdiction clause dropped from, 155 cooperation with tribunal as mitigating factor, 572 Corell, Hans, 15, 25, 29, 37, 39, 486 corporate bodies, personal jurisdiction over, 139 corroboration of evidence, 484–485, 497 Council of Europe, 43

INDEX

counsel free legal assistance, 525–527, 613–618 lawyer-client privilege, 493–495 professional and ethical standards, 613–618 Registry units for defence counsel, 613–618 right to, 171, 523–531 Crane, David, 603 Crawford, James, 348 creation and establishment of ICC, 7, 31–32, 327 creation and establishment of tribunals, 3–9, 86 historical background to international prosecution and, 9–11 ICTR, 4, 24–31, 73 ICTY, 3, 13–24, 224, 354 principles behind, 8–9 SCSL, 5 Tokyo tribunal, 3, 10 crimes against humanity, 185, 187 apartheid as, 194 armed conflict, requirement of presence of, 187–189, 194 attack not same as armed conflict for purposes of, 194 civilian population, directed against, 189–191 defined, 185 discriminatory intent or motive, 196–198 enslavement as, 201–203 extermination as, 199–201 forced transfers, 203–205 genocide and, 185 hierarchy of genocide, war crimes and crimes against humanity, tribunal rejection of, 561 imprisonment of civilians as, 205 as international crime, 154–155 international humanitarian law and, 10, 116, 186 knowledge required for, 194–195 military necessity as defence to, 347 military personnel as victims of, 190, 191

683

motives for, 195, 196 murder as, 198–199 national prosecutions for, 195 ‘other inhumane acts’, 222–225 overlap with war crimes and genocide, 434–438 peace, committed in times of, 152 persecutions as, 215–222, 223 for personal motives, 195 pregnancy, forced, 214 prostitution, enforced, 213–214 punishable acts, 198 rape as, 186, 209–211 sexual slavery, 212–213 sexual violence as, 211–215 States committing, 42, 189, 193 torture as, 205–209 in tribunal statutes, 151 ‘widespread or systematic attack’ requirement, 191–196 crimes, international. See international crimes crimes prosecuted by tribunals. See subject-matter jurisdiction criminal law international. See international criminal justice national, as source of tribunal law, 118–119 criminal tribunals. See tribunals Croatia, 29, 130, 133, 387, 411, 486, 579. See also International Criminal Tribunal for the former Yugoslavia cruel treatment, as war crime, 214, 270–271 CSCE. See Conference for Security and Cooperation in Europe cultural property, destruction or wilful damage as war crime, 262–264 cumulative convictions, 434–438, 551 customary international law on admissibility of evidence, 458 crimes against humanity committed in times of peace, 152 prohibited weapons, 261 as source of tribunal law, 83–84

684

INDEX

customary international law (cont.) violation of laws or customs of war in breach of, 256 Czechoslovakia and creation and establishment of ICTR, 26 Darfur Commission. See Sudan and Darfur Commission Dayton Peace Agreement, 19, 129, 189, 231, 351, 380, 604 death sentence, exclusion of, 546 defences, 325–326 alibi, 339–341 consent, 341–343 duress, 120, 331–332 excuses vs. justifications, 325 immunity for official positions and heads of State, 327–329 intoxication, voluntary, 334–335 mental incapacity or insanity, 95, 332–334 military necessity, 222, 345–347 mistake, 337 mitigating factors, grounds of defence as, 577 necessity, 332 Registry units for defence counsel, 613–618 reprisal, 344–345 self-defence, 335–337 special, 326 superior orders, 329–331 tu quoque, 339, 454 deferral requests in concurrent jurisdiction with national courts, 383–386, 550 Degni-Segui, Rene´, 26, 30 Del Ponte, Carla, 347, 366, 388, 498, 601, 603, 606 Delalic´, Zejnil, 538. See also ‘ Table of cases’ Democratic Republic of the Congo. See Zaire Denmark, service of tribunal sentences in, 579, 580, 582 deportation. See forced transfer or displacement depositions, 476–477 Descamps, Baron, 104

detention. See also entries at imprisonment detention camps genocide, deliberate infliction of living conditions likely to destroy group as, 176–177 detention of accused after acquittal and before appeal, 433 international human rights mechanisms, access to, 542–544 pre-trial, 377–383, 389–395 Registry responsibility for detention units, 609–611 speedy trial, right to, 414, 521–523 detention of suspects, 504–505 deterrence as objective of tribunals, 69 as purpose of sentencing, 554 Dieng, Habi, 27 dignity, outrages upon, 272–273 disclosure of evidence, pre-trial, 398–403 discriminatory intent or motive crimes against humanity generally, 196–198 as general principle of law, 295 persecution, 216, 219, 513 dismissal, motion for, 430–432 dismissal or removal of judges, 509–510, 534 displacement. See forced transfer or displacement disposition of appeals, 412, 432–433, 448–449 disqualification or recusal of judges, 415, 416–419, 510 distinction, principle of, 283, 346 documentary evidence, 482 Dokmanovic´, Slavko, 365, 381. See also ‘Table of cases’ dolus specialis. See special/specific intent or dolus specialis Do¨rmann, Knut, 249 double jeopardy (ne or non bis in idem) accused, rights of, 535–537 cumulative convictions, 434–438, 551 jurisdictional issues, 127–128

INDEX

Drajic´, Novislav, 125 Drumbl, Mark, 426 drunkenness as defence, 334–335 Dumas, Roland, 14, 17, 20 Dumbuya, Ahmed Ramadan, 39 duress, public policy basis for use of defence of, 120 duty judges, 596 Eagleburger, Lawrence, 19, 604 early release, 582 East Timor executive mission in, 5 International Commission of Inquiry on, 4 legacy and influence of tribunals in, 44 proposal to establish tribunal for, 33 Ecuador, service of tribunal sentences in, 579 eVective control test, 243–245 ‘eVects’ jurisdiction, 131 Eijskens, Mark, 12 enforced acts. See entries at forced enforcement of sentence, 578 enslavement and forced labour consent as defence to, 343 as crime against humanity, 201–203 of prisoners of war, 274 sexual slavery, 212–213 as war crime, 99, 100, 105, 274, 281–282, 290, 401 ‘white slavery’ or trafficking in persons, 154 entry of plea, 388–389 equality before the law, 511–513 equality of arms, 513–514 Erdemovic´, Drazen, 331, 385, 396, 424–425, 452, 469, 524, 565, 579, 582. See also ‘Table of cases’ Escovar Salom, Ramon, 602 estoppel, as general principle of law, 103 ethical and professional standards for counsel, 613–618 ethnic cleansing Albright’s condemnation of, 20 as cultural vs. physical genocide, 166

685

as forcible transfers of population, 166, 167 as form of genocide, 161 in former Yugoslavia, 13 individual accountability as objective of tribunals, 70 European Court and Commission of Human Rights. See also European Convention on Human Rights in ‘Table of legislative provisions’ accused’s access to, 542, 543, 544 on anonymous testimony, 474 creation and establishment of tribunals, 33, 46 on detention of accused persons, 394 on disclosure of evidence, 398 on disqualification of judges, 103, 419 on fitness to stand trial, 396 free legal assistance and right to choose counsel, 525 legality and legitimacy of tribunals, 63, 65 on presumption of innocence, 517, 518 as source of tribunal law, 76, 110, 118 speedy trial, right to, 523 stare decisis followed by, 108 on torture, 206 European vs. Anglo-American law jurisdictions. See civil, common and ‘other’ law jurisdictions, joint use of traditions of evidence, 452–453. See also witnesses and testimony admissibility issues, 453–467 affidavits, 477 appeal, new evidence admitted on, 447, 483–484 authoritative information as, 477–479 ‘balance of probabilities’ standard, 465 ‘best evidence rule’, 458 burden of proof beyond reasonable doubt, 463–467 compelling production of, 77, 467–470, 485–488

686 evidence (cont.) corroboration of, 484–485, 497 depositions, 476–477 documentary, 482 exclusion of, 459–460 general authority of judges in case of lacunae in RPE, 460–463 of good character, 499 hearsay, 455, 459, 479–480 judicial notice of facts of common knowledge, 488–493 national security concerns, 485–488 from other cases, 477–479 polygraphs, 457 pre-trial disclosure, 398–403 probity of, 453–459 of rape and sexual assault, 496–499 relevance of, 453–459 reliability of, 456–457 review on new facts, 450, 483–484 RPE. See Rules of Procedure and Evidence similar fact evidence (pattern of conduct), 499–500 subpoenas, 468–469 types of, 470 excuses vs. justifications, 325. See also defences executive missions in Kosovo and East Timor, 5 experts on individual circumstances of convicted persons for sentencing purposes, 566 as witnesses, 471, 480 extermination as crime against humanity, 199–201 living conditions likely to destroy group as genocide, 176–177 extradition (surrender and transfer), 357, 379, 386–388 facts appeals on errors of, 445–446 judicial notice of facts of common knowledge, 488–493 review of new, 450

INDEX

fiat justitia arguments for international tribunals, 68 Filaret of Milesˇevo, Bishop, 611 financing of tribunals, 6, 32, 39, 41, 352, 493, 622–623 Finland, service of tribunal sentences in, 579, 580, 582 fitness to stand trial, 163, 395–397 Fletcher, George, 325 Foca camp, 208, 211 Fomba, Salifu, 27 forced labour. See enslavement and forced labour forced marriages, 213 forced military service, 205 forced pregnancy, 214 forced prostitution, 213–214 forced sterilisation, 211, 214, 270–271 forced transfer or displacement consent as defence to, 343 as crime against humanity, 203–205 as genocide, 166, 167, 178 military necessity as defence to, 347, 388 ‘other inhumane acts’ encompassing, 3, 224, 354 persecution entailing, 136, 218 as war crime, 252–253 former Yugoslavia. See International Criminal Tribunal for the former Yugoslavia France Cambodia, opposition to international tribunal in, 32 capital punishment, opposition to, 547 crimes against humanity against civilian populations, military personnel included in, 191 ICTY, creation and establishment of, 13, 14, 17, 20, 21, 124 Iraqi tribunal, proposal for, 13 service of tribunal sentences in, 579, 580, 582 on temporal jurisdiction of tribunals, 134

INDEX

free legal assistance, right to, 525–527, 613–618 funding of tribunals, 6, 32, 39, 41, 352, 493, 622–623 gacaca, 568, 569, 607 Galic´, Stanislav, 225, 281. See also ‘Table of cases’ gender crimes. See rape and sexual assault; sexual violence general principles of law, 134, 289–292 civil, common and ‘other’ law jurisdictions, 291 defences. See defences as to genocide, 105, 281–282, 290 individual accountability, 289 mental and physical elements (mens rea and actus reus), 292–296 participation. See participation, as general principle of law as sources of tribunal law, 102–107 Geneva Conventions. See also ‘Table of legislative provisions’ for citation of specific articles 1949 Conventions generally grave breaches provisions, 77, 158, 203, 205, 222, 240–243, 290, 467–470 international armed conflict, existence of, 243–246 legality and legitimacy of tribunals, 65 occupation, 255 protected status under, 246–248 on rights of accused, 501 as sources of law, 93, 98, 99 war crimes, 228, 232–233, 240–243, 258, 265–274, 368. See also war crimes Additional Protocols I and II. See Additional Protocols to the Geneva Conventions genocide, 161, 164 aiding and abetting, 184 birth, measures preventing, 177–178 children, forcible transfer of, 178 complicity in, 178–179, 183, 305, 324

687 conspiracy to commit, 179–181 Convention of 1948. See ‘Table of legislative provisions’ crimes against humanity and, 185 defined, 163 destruction of group in whole or in part, 169–171 elements of, 164, 172 ethnic cleansing as form of, 161. See also ethnic cleansing forcible transfers of populations, 166, 167, 178 group intended to be destroyed, what constitutes, 168–169 hierarchy of genocide, war crimes and crimes against humanity, tribunal rejection of, 561 inchoate offences, 178–179 incitement to commit, 181–183 as international crime, 24–31, 73, 154–155, 163, international humanitarian law and, 116 killing as, 164, 172–174 knowledge and intent required for, 167 living conditions likely to destroy group, deliberate infliction of, 176–177 motive requirements, 172 not properly characterised as war crime, 152 origins of term, 163, 395–397 overlap with war crimes and crimes against humanity, 434–438 persecution as crime against humanity compared, 218 physical vs. cultural, 165, 167 plan to commit, 171, 523–531 punishable acts of, 172, 237 rape and sexual violence as birth, measures preventing, 177 living conditions likely to destroy group, deliberate infliction of, 177 serious bodily or mental harm, 34, 174–175

688

INDEX

genocide (cont.) reluctance to use term, 25–26, 161 in Rwanda, 161, 162, 163, 172, 178, 179–183, 296, 324 serious bodily or mental harm as, 174–176 special intent or dolus specialis, 164, 171, 320 State involvement in, 171 in tribunal statutes, 151 universal jurisdiction over, 157 Genocide Convention. See Convention for the Prevention and Punishment of the Crime of Genocide and ‘Table of legislative provisions’ for citation of specific articles Genscher, Hans Dietrich, 12 Germany ICTY, creation and establishment of, 14 Iraqi tribunal, proposal for, 12 polygraphs, case law as to, 324, 457 primacy in concurrent jurisdiction, 124, 125, 289, 523 service of tribunal sentences in, 579, 580 Ghana’s refusal to arrest Charles Taylor, 59–60, 327, 357, 366 global sentences, 551 Goldstone, Richard, 13, 23, 71, 73, 124, 147, 189, 265, 352, 374, 379, 384, 409, 602, 604 good character, evidence of, 499 good faith and equity, as general principle of law, 103 Gotovina, Ante, 24, 387 gravity of crime, as sentencing factor, 563 Greenwood, Christopher, 519 groups, targeted genocide, 168–169 persecution as crime against humanity, 219 guilty pleas, 423–428, 573 Gulf War, Iraqi tribunal proposed in wake of, 11

habeas corpus as customary law, 97 rights of accused, 539 Habyarimana, Juve´nal, 25, 134, 490, 548 Hague Conventions. See also ‘Table of legislative provisions’ for citation of specific articles fourth Convention of 1907 Regulations annexed to, 9, 255, 258–260, 277, 280, 285 torture prohibited especially by, 206, 473 war crimes, 275 as source of law, 98, 486 torture prohibited by all, 206, 473 war crimes, 246, 255–258 harm, serious. See serious bodily or mental harm Haskic´, Midhat, 457 hate speech as incitement to commit genocide, 181–183 persecutions and, 217 heads of State immunity as defence, 327–329 international crimes relaxing rules of, 158–160 tribunal’s power to order arrest of, 59–60 tribunal’s power to prosecute, 57 hearsay evidence, 455, 459, 479–480 Hegel, Georg Wilhelm Friedrich, 68 Henham, Ralph, 426 Hess, Rudolph, 332, 365, 395, 530, 544 hierarchy of crimes, tribunal rejection of, 561 hierarchy of forums, concept of, 111 Higaniro, Alphonse, 173, 385 Higgins, Rosalyn, 151 Hoffmann, Lord, 622 Holbrooke, Richard, 21 homicide. See killing hostage taking as war crime, 253, 271 human rights law. See also European Court and Commission of Human Rights; UN Commission on Human Rights/ Human Rights Committee

INDEX

access of accused to international human rights mechanisms, 542–544 accused, rights of. See accused appeal, right to, 438–439, 533–535 crimes against humanity and international humanitarian law, 10, 116, 186 detention of accused persons, 394 distinction, principle of, 283, 346 Inter-American Court and Commission on Human Rights, 33, 118, 539, 572 international criminal justice and, 8, 67 like cases treated alike, 438 persecution entailing violations of, 218 self-incrimination, 473 as source of tribunal law, 77, 95, 116–118 subject-matter jurisdiction over violations of international humanitarian law, 153 suspects, 358, 503–505 trial before regular domestic criminal tribunal, 128 violation of laws or customs of war in breach of international humanitarian law, 256 war crimes, other serious violations of international humanitarian law as, 282 Human Rights Watch, 14 humanitarian law. See human rights law humanitarian personnel, attacks on, 284 humanity, crimes against. See crimes against humanity Hunt, David, 43, 113, 364, 414, 492, 601 Hutu, 24, 25, 219 hybrid or mixed courts or tribunals, 5–6, 64, 154, 564 legacy and influence of international criminal tribunals on, 44 SCSL as, 6, 37, 54, 132

689

ICC. See International Criminal Court ICJ. See International Court of Justice ICTR. See International Criminal Tribunal for Rwanda ICTY. See International Criminal Tribunal for the former Yugoslavia ILC. See International Law Commission immunities. See also privileges accused person before tribunal immune from national criminal jurisdiction, 433 as defence, 327–329 international crimes relaxing rules of, 158–160 Milosˇevic´’s supposed receipt of de facto, 351 pre-trial grant of, 409 impartiality accused’s right to, 505–511 disqualification of judges on grounds of possibility of, 415, 416–419 implied or inherent powers of tribunals, 112–116 imprisonment. See also entries at detention imprisonment as tribunal sentence life sentences, 549 place of service, 578 Registry responsibility for detention units, 609–611 terms imposed, 549 visitors, 611 imprisonment of civilian populations as crime against humanity, 205 as war crime, 253–254 impunity, end of, as objective of tribunals, 73 in absentia tribunal trials, 382, 419–422, 523 in camera trial sessions, 423, 514–516 in dubio pro reo, as general principle of law, 106 inchoate offences as general principle of law, 292 genocidal, 178–179

690

INDEX

incitement or instigation as general principle of law, 299–301 genocidal, 181–183 hate speech as persecution, 217 ordering related to, 301–302 independence of OTP, 603 of tribunal, 505–511 indictments, 350, 359–362, 563 amendment of, 371–374 basis for liability stated in, 362 issuance of, 363–366 joinder of accused, 368–371 joinder of crimes, 366–368 sealed or secret, 365–366 withdrawal of, 375–377 individual accountability collective vs. individual guilt, 70, 71 as general principle of law in tribunal statutes, 289 as objective of tribunals, 70 for violations of laws or customs of war, 256 individual circumstances of convicted person, as sentencing factor, 563 Indonesia and East Timor conflict. See East Timor inherent or implied powers of tribunals, 112–116 inhuman treatment, as war crime, 190, 206, 250, 270, 272 initial appearance, charge and entry of plea, 388–389 injury, serious. See serious bodily or mental harm innocence, presumption of, 516–519 inquisitorial vs. adversarial law jurisdictions. See civil, common and ‘other’ law jurisdictions, joint use of traditions of insanity or mental incapacity, as defence, 95, 332–334 instigating. See incitement or instigation intent discriminatory. See discriminatory intent or motive

dolus specialis. See special/specific intent or dolus specialis genocide, 167 mens rea (mental element of crimes), 293–295 intentional homicide. See killing Inter-American Court and Commission on Human Rights, 33, 118, 539, 572 interlocutory appeals, 441, 534 interlocutory rulings, 412 International Committee of the Red Cross evidentiary immunity or privilege for employees of, 97 ICTY, creation and establishment of, 22, 232 ‘international humanitarian law’ as term, 77, 98 prisoners in tribunal detention units, monitoring of, 610 privileged information, 495 as third party, 411, 621 on war crimes, 232 International Court of Justice (ICJ) on customary norms, 77, 98 on existence of international armed conflict in Nicaragua case, 243–245 heads of State, tribunal’s power to prosecute, 57 hierarchy of tribunals and, 111 ICTY, creation and establishment of, 19 on immunities, 328–329 legitimacy and legality of tribunals, 47, 50 location or seat, 588, 600 nuclear weapons, advisory opinion on, 261, 283, 300, 346 as principal judicial organ of UN, 111 sources of law for, 75 stare decisis followed by, 108 on UN powers, 22 on universal jurisdiction over international crimes, 157

INDEX

International Covenant on Civil and Political Rights (1966). See also ‘Table of legislative provisions’ for citation of specific articles equality before the law in, 511 legitimacy and legality of tribunals, 61 procedural guarantees in, 350 as source of tribunal law, 95, 99, 101 international crimes genocide as, 24–31, 73, 154–155, 163 mens rea, 294 subject-matter jurisdiction over, 152–160 International Criminal Court (ICC). See also Rome Statute of the International Criminal Court as alternative to ad hoc tribunals, 31–32, 327 creation and establishment of, 7, 31–32, 327 juvenile offenders, jurisdiction over, 140 legacy and influence of tribunals in, 44 location or seat, 588 natural persons, jurisdiction restricted to, 139 as objective of tribunals, 73 post-Cold War revival of concept of, 11–13 procedural practices at, 349 territorial jurisdiction of, 132 trial procedure at, 429 UN encouragement of precursor to, 3, 10, 11, 83, 620 US hostility to, 32, 54, 132 international criminal justice Cold War’s interference with course of, 11 defined, 78 furtherance as objective of tribunals, 73 historical background, 9–11 human rights law and, 8, 67 legacy and influence of tribunals in, 44

691

post-Cold War revival of concept of, 11–13 scope of, 23 UN agenda, as part of, 3–9, 86 International Criminal Tribunal for Rwanda (ICTR), and Statute. See also ‘Table of legislative provisions’ for citation of specific articles of the Statute appeals, 440, 441 arrest requests, State compliance with, 379 budget for, 622 capital punishment, 547, 548 common legal norms with ICTY and SCSL, 108–110 on compelling production of evidence, 429, 467 completion strategy, 6, 40, 42, 43, 189 complicity in genocide, 183 on consent, as defence, 341–343 conspiracy to commit genocide, 179–181 counsel, right to, 523 creation and establishment of, 4, 30 crimes against humanity, 186, 187, 191, 196, 197, 213, 215 Detention Unit, 558, 610 documentary evidence, use of, 482 equality before the law, right to, 228, 511 general principles of law for, 105, 281–282, 290, 293, 296–297, 298, 318 genocide, 161, 162, 163, 172, 178, 179–183, 296, 324 habeas corpus, lack of reference to, 539 history of country and its internal strife, 24 ICTY as model for, 4 joint criminal enterprise, 311, 622 jurisdiction, 123, 127, 130–131, 139, 140, 151 legacy and influence of, 44–46 legality and legitimacy of, 48, 50, 52, 53, 61, 64 national law as source, 74

692

INDEX

International Criminal Tribunal for Rwanda (ICTR), and Statute (cont.) nationality and citizenship, 142 natural persons, restriction of jurisdiction to, 139 peace, international crimes committed in times of, 153 penalty provisions, national criminal law used for, 119 persecutions, 215, 219, 375 personal jurisdiction, 138–139 pre-trial procedure, 263, 350, 353, 355, 356, 383, 404, 407 on presumption of innocence, 516 principles behind establishment of, 8 procedural provisions, 348, 350 prostitution, enforced, 213 public trial, exceptions to, 514, 558 retroactivity, 61, 64, 65, 66 on rights of accused, 502 RPE of, 84–89, 148 Rwandan government and, 27, 29, 30, 357 seniority of criminals prosecuted, 145, 147 sentencing, 546, 549, 552, 578 sexual violence, 211 slavery, failure to address, 281 sources of tribunal law, 74, 78–84, 89 speedy trial, right to, 521 structure and organisation, 109, 588, 590, 593–594, 595, 601, 603, 609 subject-matter jurisdiction, 151 temporal jurisdiction, 134, 289–292 territorial jurisdiction, 130–131 trial and post-trial procedure, 410 war crimes, 233, 235, 266, 269, 275, 278, 281, 285 International Criminal Tribunal for the former Yugoslavia (ICTY), and Statute. See also ‘Table of legislative provisions’ for citation of specific articles of the Statute

appeals, 440, 441 budget for, 622 common legal norms with ICTR and SCSL, 108–110 on compelling production of evidence, 429, 467 completion strategy, 6, 24, 40, 41–42, 43 complicity in genocide, 183 concurrent jurisdiction, 383 on consent, as defence, 341–343 counsel, right to, 523, 525 creation and establishment of, 4, 22, 23, 24–31, 40, 41, 73 crimes against humanity, 186–189, 191, 215, 219 Detention Unit, 609 documentary evidence, use of, 482 equality before the law, right to, 228, 511 general principles of law for, 105, 281–282, 289, 290, 298, 318, 325 genocide, 161, 163, 172, 178, 181, 183, 296, 324 grave breaches of Geneva Conventions, 240–243 habeas corpus, lack of reference to, 539 history of country and its breakup, 13 ICTR, as model for, 4 internal vs. international flavour of conflict, 7 international armed conflict, existence of, 243–246 intoxication (voluntary) as defence, 334 joint criminal enterprise, 309–314 judges, impartiality and independence of, 507 jurisdiction, 123, 127, 131, 139, 140, 151 legacy and influence of, 44–46 legitimacy and legality of, 48–53, 69, 105 national law as source, 74 nationality and citizenship, 142

INDEX

natural persons, restriction of jurisdiction to, 139 penalty provisions, national criminal law used for, 119 persecution, 215, 219 personal jurisdiction, 138–139 pre-trial procedure, 3–98, 263, 350, 351–355, 379, 404, 407, 409, 696 on presumption of innocence, 516 principles behind establishment of, 8 procedural provisions, 348, 350 prostitution, enforced, 213 public trial, exceptions to, 514, 558 retroactivity (nullum crimen sine lege), 63–67, 187 on rights of accused, 502, 505 RPE of, 84–89, 126, 148 Rules of the Road programme, 129 seniority of criminals prosecuted, 145, 147 sentencing, 546, 549, 552, 567, 568, 578 sexual violence, 211 sources of law, 74, 78–84, 87–88 speedy trial, right to, 521 structure and organisation, 109, 588, 590, 593–594, 595, 601–603 subject-matter jurisdiction, 151 temporal jurisdiction, 132 territorial jurisdiction, 130, 131 timeline of conflict, 133 trial and post-trial procedure, 410 war crimes, 67, 232–236, 240–243, 249, 255–269 international criminal tribunals. See tribunals international humanitarian law. See human rights law international law. See also customary international law definition of international crimes under, 154 origins of term, 77 as source of tribunal law, 74–78 universal jurisdiction under, 126, 128

693

International Law Commission (ILC) aiding and abetting and complicity after the fact, 305 on defences, 325 genocide, special intent of, 165 proposals for international criminal courts, involvement in, 11, 31 statutes of tribunals and, 83 International Military Tribunal (European theatre). See also Charter of the International Military Tribunal; Nuremberg tribunal International Military Tribunal for the Far East. See Tokyo tribunal internment. See entries at detention; imprisonment INTERPOL, tribunals’ reliance on, 355 interpreter, right to, 531–532, 592 intervenors or amici curiae, 411, 619–622 intoxication as defence, 334–335 investigations, 350, 563 conduct of, 355–358 identification of suspects and accused, 351–355 rights of suspects, 358 Iran, service of tribunal sentences in, 579 Iraq Hussein, Saddam, 12 Kurdish massacres, 12 Persian Gulf War, tribunal proposed in wake of, 11 tribunal proposals, 11–13 Islamic Conference, 21, 547 Italy capital punishment, opposition to, 513, 547 ‘eVects’ jurisdiction, 131 ICTY, creation and establishment of, 21 Italian-Venezuelan Mixed Claims Commission, 104 service of tribunal sentences in, 579, 580, 582 Supreme Military Tribunal of, 153 Ivanov, Igor, 365

694

INDEX

Jallow, Hassan Bubacar, 593, 603 JCE. See joint criminal enterprise joinder of accused, 368–371 of crimes, 366–368 joint criminal enterprise (JCE) common treatment of, 109 development of concept of, 24 as general principle of law, 309–314 indictment, basis for liability stated in, 362 Jokic´, Miodrag, 396, 573. See also ‘Table of cases’ Jorda, Claude, 424 Jorgic´, Nikola, 125. See also ‘Table of cases’ Josipovic´, Drago, 385, 500, 580. See also ‘Table of cases’ judges accused’s right to independence and impartiality of, 505–511 ad litem, 508, 594, 595, 596 alternate judges at SCSL, 596 dismissal or removal, 509–510, 534 disqualification or recusal, 415, 416–419, 510 duty judges, 596 organisation and structure of Chambers and, 593–594 Pre-Appeal Judge or Pre-Hearing Judge, 443, 451 Pre-Trial Judge, 406 privileges of judicial deliberations, 496 remuneration of, 226, 509 replacement or trial de novo, 412–416 term of office, 508–509 trials, composition of bench at, 412–419 witnesses called by, 429 judgment or verdict, 412, 432–433, 448–449 judicial decisions as source of law, 107–112 judicial notice of facts of common knowledge, 488–493 jura novit curia, 446–447

jurisdiction, 123 Appeals Chambers, 441 civil, common or ‘other’ types. See civil, common and ‘other’ law jurisdictions, joint use of traditions of concurrent jurisdiction with national courts deferral requests, 383–386, 550 primacy in, 123, 129, 132 over continuing crimes, 125 crimes against humanity requiring presence of armed conflict for purposes of, 188 crimes committed against tribunals themselves, 132 defined, 123 double jeopardy (ne or non bis in idem), 127–128 ‘eVects’, 131 ‘international crimes’, jurisdictional consequences of, 156–158 personal. See personal jurisdiction over property, 148–150 ratione materiae. See subject-matter jurisdiction right to be tried before regular domestic criminal tribunal, 128 subject-matter. See subject-matter jurisdiction temporal, 132–138 territorial, 129–132 treaty-based establishment of SCSL and, 57 universal, 126, 128, 154, 157 violations of common article 3 of Geneva Conventions, 266 jus cogens norms, 101–102 jus gentium (law of nations), ‘international law’ replacing as term, 77 justice, as objective of tribunals, 69 justifications vs. excuses, 325. See also defences juveniles. See children

INDEX

Kabbah, Ahmed Tejan, 35–36, 146, 279 Kabuga, Fe´licien, and family, 149. See also ‘Table of cases’ Kadijevic´, General, 317 Kagame, Paul, 29, 150, 578 Kajelijeli, Juve`nal, 538. See also ‘Table of cases’ Kama, Laı¨ty, 412, 511 Kambanda, Jean, 327, 425, 426, 581. See also ‘Table of cases’ Kanyabishi, Joseph, 173, 385. See also ‘Table of cases’ Karadzˇic´, Radovan, 19, 20, 24, 64, 69, 385, 470, 519, 604. See also ‘Table of cases’ ‘Karaman’s house’, 408 Karamera, Froduald, 124. See also ‘Table of cases’ Kay, Stephen, 621 Kayishema, Clement, 581. See also ‘Table of cases’ Keating, Colin, 27, 147 Kenya arrest requests, resistance to, 380 on temporal jurisdiction of tribunals, 134 territorial jurisdiction of tribunals and, 130 killing crimes against humanity, murder as, 198–199 as genocide, 164, 172–174 mens rea (mental element of crimes), 293–294 as war crime. See war crimes King, George, 417 Kinkel, Klaus, 14 Klarin, Mirko, 13 Kolundzˇija, Dragan, 116. See also ‘Table of cases’ Kompetenz-Kompetenz (la compe´tence de la compe´tence), 50, 92 Kosovo. See also International Criminal Tribunal for the former Yugoslavia

695

crimes against humanity requiring presence of armed conflict, 189, 374 executive mission in, 5 investigations, 351 joint criminal enterprise, 32, 312 legacy and influence of tribunals in, 44 peace and security, limited ability of tribunals to impose, 69 war crimes requiring presence of armed conflict, 231 Kovacˇevic´, Vladimir, 396. See also ‘Table of cases’ Kovanda, Karol, 26 Kunarac, Dragoljub, 580. See also ‘Table of cases’ Kupresˇkic´, Mirjan, Zoran and Vlatko, 538. See also ‘Table of cases’ Kurdish massacres in Iraq, 12 Kuwait, tribunal proposed in wake of Iraqi invasion of, 11 Kvocˇka, Miroslav, 390. See also ‘Table of cases’ labour, forced. See enslavement and forced labour language issues accused, language used by, 592 adequate counsel, right to, 525 interpreter, right to, 531–532, 592 official languages of tribunals, 590 witnesses and testimony, 593 Lansing, Robert, 62 Lauterpacht, Hersch, 226 law appeals on errors of, 229, 444–445 general principles of. See general principles of law of nations (jus gentium), ‘international law’ replacing as term, 77 sources of. See sources of law laws of war concept of, 226, 228 violations punishable as war crimes, 255–258, 275–282, 285

696

INDEX

lawyers. See counsel Lawyers Committee for Human Rights, 22 League of Nations, 10, 186 legitimacy and legality of tribunals, 47–48 authority of tribunal to examine its own status, 50 consent of States involved, 53 constitutional challenges to, 57 objectives as related to, 67 retroactivity, 60–67 third States, rights of, 56–57, 59–60 treaty-based courts, 53–60 UN Security Council’s power to create tribunals by resolution, 48–53, 55–56, 59–60 Lemkin, Raphael, 163, 395–397 lex consumens derogat legi consumptae, 438 Li, Haopei, 120 liability individual. See individual accountability strict liability and superior responsibility, 320 Liechtenstein, service of tribunal sentences in, 579 life imprisonment, 549 Lincoln, Abraham, 231 living conditions likely to destroy group, deliberate infliction of, 176–177 location of service of sentence, 578 of tribunals, 588, 594 Luxembourg and proposal for Iraqi tribunal, 12 Macedonia, 130. See also International Criminal Tribunal for the former Yugoslavia major war criminals, jurisdiction restricted to, 38, 145–148 Malaysia, service of tribunal sentences in, 579 Mali, service of tribunal sentences in, 580, 581

Management Committee, 599 Mandela, Nelson, 602 marriages, forced, 213 Martens Clause, 257 May, Richard, 452, 460, 464, 470, 528, 529 Mazowiecki, Tadeusz, 18 McDonald, Gabrielle Kirk, 72, 104, 105, 120, 228, 304, 420, 486, 604 McNair, Lord, 103 media privileges, 495 members of Chambers, 598–600 mens rea (mental element of crimes), 292–296 mental element of crimes (mens rea), 292–296 mental fitness to stand trial, 163, 395–397 mental harm, serious. See serious bodily or mental harm mental incapacity or insanity, as defence, 95, 332–334 Merime´e, Jean-Bernard, 20 Meron, Theodor, 21, 22, 232, 569, 582 Mexico and creation and establishment of ICTY, 21 military necessity as defence, 222, 345–347 persecution and, 222 wanton destruction of cities and towns not required by, 209, 261–262 military service child soldiers, 140–142, 279–285 crimes against humanity, soldiers as victims of, 190, 191 forced service as war crime, 205 Milosˇevic´, Slobodan, 19, 20, 24, 149, 327, 349, 351, 364, 386, 397, 471, 528–530, 531, 542, 543, 604, 605, 621. See also ‘Table of cases’ Milutinovic´, Milan, 31–32, 327. See also ‘Table of cases’ minors. See children mistake, as defence, 337 mitigating and aggravating circumstances, 566 Mitterand, Franc¸ois, 14

INDEX

mixed or hybrid courts or tribunals, 5–6, 64, 154, 564 legacy and influence of international criminal tribunals on, 44 SCSL as, 6, 37, 54, 132 Mladic´, Ratko, 19, 24, 64, 69, 347, 385, 388, 470, 519, 604 M’Naghten rules, 333 Moore, Judge, 154 Moreno Ocampo, Luis, 602 Moscow Declaration, 8, 10 ‘Moscow Human Dimension Mechanism’ of CSCE, 15 Møse, Erik, 378 motive discriminatory. See discriminatory intent or motive as general principle of law, 295 genocide, 172 Mucic´, Zdravko, 358, 460, 571. See also ‘Table of cases’ Mugesera, Leon, 138. See also ‘Table of cases’ Mumba, Judge, 271, 417, 418 murder. See killing Musema, Alfred, 581. See also ‘Table of cases’ mutilation, as war crime, 270 Mutua, Makau, 28 Nahimana, Ferdinand, 182. See also ‘Table of cases’ national courts and criminal laws. See also States accused person before tribunal immune from jurisdiction, 433 crimes against humanity, national prosecutions for, 195 deferral requests, 383–386, 550 diVerent types of legal traditions of. See civil, common and ‘other’ law jurisdictions, joint use of traditions of general principles of law borrowed from, 291 investigative dependence of tribunals on, 356

697

mental incapacity or insanity, as defence, 165, 332 primacy in concurrent jurisdiction over, 123, 129, 132 referral to, 407–409 right to be tried before regular domestic criminal tribunal, 128 SCSL’s subject-matter jurisdiction over crimes under Sierra Leone law, 152 sentencing, 552 service of sentence under, 580 as source of tribunal law, 74, 118–119 trial before regular domestic criminal tribunal, right to, 128 national security concerns and production of evidence, 485–488 nationality and personal jurisdiction, 142–144 nations, law of (jus gentium), ‘international law’ replacing as term, 77 NATO arrests by forces, 380, 605 crimes against humanity requiring presence of armed conflict, 189 ‘eVects’ jurisdiction, 131 investigations, 351 personal jurisdiction and nationality, 142, 242 war crimes requiring presence of armed conflict, 16, 231 natural persons, restriction of jurisdiction to, 139 Ndiaye, Bacre Waly, 26 Ndyayambaje, Elie, 173, 385. See also ‘Table of cases’ ne bis in idem. See double jeopardy necessity, as defence, 332 negligence and superior responsibility, 319 Netherlands capital punishment, opposition to, 547

698

INDEX

Netherlands (cont.) ICTY, creation and establishment of, 21 ICTY located in The Hague, 588 service of tribunal sentences in, 579 United Nations Detention Unit, 609 New Zealand capital punishment, opposition to, 548 ICTR, creation and establishment of, 27, 28, 147 Ngeze, Hassan, 182 NGOs (non-governmental organisations) as third parties in trial and post-trial procedures, 411, 619–622 Nicaragua, US involvement in essentially internal conflict in, 243–245. See also ‘Table of cases’ Nieto-Navia, Rafael, 51, 535, 536 Nigeria’s refusal to arrest Charles Taylor, 59–60 Nikolic´, Dragan and Momir, 23, 72, 210, 352, 381. See also ‘Table of cases’ non bis in idem. See double jeopardy non-governmental organisations (NGOs) as third parties in trial and post-trial procedures, 411, 619–622 Norman, Sam Hinga, 280, 285, 364. See also ‘Table of cases’ North Atlantic Treaty Organization. See NATO Norway, service of tribunal sentences in, 579, 580, 582 Notice of Appeal, 443 Nowak, Manfred, 538 nuclear weapons, 261, 283, 300, 346 nullum crimen sine lege. See retroactivity Nuremberg tribunal. See also Charter of the International Military Tribunal agreement establishing, 42.232, 54 alternate judges at, 596 capital punishment, 546

crimes against humanity, 186–187, 189, 193, 203, 231 customary norms at, 98 documentary evidence, use of, 482 evidentiary matters at, 452–453, 464 fitness to stand trial, 365, 395, 530 genocide used as term in, 163 hearsay evidence, 480 on immunities, 158 international human rights mechanisms, access of accused to, 544 Iraqi tribunal proposals invoking precedent of, 11 joinder of accused, 369 judicial notice of facts of common knowledge, 488 legacy and influence of, 44 legitimacy and legality issues, 47, 50 mental incapacity or insanity, as defence, 332 multinational rather than international nature of, 7 rapid completion of work compared to ICTY and ICTR, 7 retributive premise of, 8 retroactivity (nullum crimen sine lege), 61, 62, 156 on rights of accused, 501 RPE, 86 sentencing, 545 as source of tribunal law, 110 superior orders, defence of, 330 temporal jurisdiction, 125 UN not involved in, 3 war crimes, 227, 256, 257, 263 oaths or solemn declarations of witnesses, 471 objectives of tribunals, 67 occupation and war crimes, 255 Odio Benito, Elizabeth, 374, 418, 419 Office of The Prosecutor (OTP), 600–607 civil, common and ‘other’ law jurisdictions, joint use of traditions of, 601 Deputy Prosecutors, 600 field offices, 600

INDEX

ICTR, 109, 601, 603 ICTY, 109, 601–603 independence of, 603 initially shared by ICTR and ICTY, 109, 601, 603 privileges extended to prosecutorial information, 495 prosecutorial strategies, 603–606 pyramidal approach of, 604, 605 SCSL, 603 Truth and Reconciliation Commissions and, 606 officers of Chambers, 598–600 official positions, persons in. See heads of State Olusanya, Olaoluwa, 350, 563 Omarska camp, 65, 371 omission, crimes of, 295 on-site visits, 590 opening statements, 428 ordering as criminal participation, 301–302 Organisation of the Islamic Conference, 21, 547 organisation of tribunals. See structure and organisation of tribunals organisations as third parties in trial and post-trial procedures, 411, 619–622 OTP. See Office of The Prosecutor Pakistan, service of tribunal sentences in, 579 Pal, Judge, 84 pardons, 580, 582 parole, 582 participation, as general principle of law, 296–297 aiding and abetting, 302–309 co-perpetrators, 308 commission, 298 complicity in genocide, 305, 324 instigating or inciting, 299–301 joint criminal enterprise, 309–314 ordering, 301–302 planning, 298–299 superior responsibility, 314–324

699

parties at trial and post-trial procedures, 410, 589 pattern of conduct (similar fact evidence), 499–500 peace international crimes committed in times of, 152, 229 objective of tribunals, peace and security as, 24, 68 principle behind tribunals, peace and security as, 8–9 peacekeepers, attacks on, 284 Pellet, Alain, 13 penalty provisions, national criminal law used for, 119 Perez de Cuellar, Javier, 12 perjury, subject-matter jurisdiction over, 152 persecutions, as crime against humanity, 215–222, 223 Persian Gulf War, Iraqi tribunal proposed in wake of, 11 personal jurisdiction, 138–139 over corporate bodies, 139 over juvenile offenders, 140–142 nationality and citizenship, 142–144 natural persons, restriction of jurisdiction to, 139 over property, 148–150 seniority of criminals prosecuted, 38, 145–148 ‘persons most responsible’, personal jurisdiction restricted to, 38, 145–148 physical element of crimes (actus reus), 292–296 physical fitness to stand trial, 163, 395–397 physical harm, serious. See serious bodily or mental harm pillage as war crime, 280, 285 planning as criminal participation, 298–299 Plavsˇic´, Biljana, 336, 565. See also ‘Table of cases’

700 pleas entry of, 388–389 guilty pleas, 423–428, 573 plea bargaining, 423–428, 512 Pocar, Fausto, 117, 449, 453 Poland, service of tribunal sentences in, 579 police force, tribunals’ lack of, 355 polygraphs, 457 Poos, Jacques, 12 post-trial procedure, 438–439 appeal. See appeal and Appeals Chambers review, 450–451, 483–484 RPE applicable to, 439 Powell, Colin, 387, 409 Pre-Appeal Judge or Pre-Hearing Judge, 443, 451 Pre-Defence Conference, 406 Pre-Trial Conference, 406 Pre-Trial Judge, 406 pre-trial procedure arrests, 377–383 conferences, 405–407 deferral requests, 383–386, 550 detention or provisional release, 377–383, 389–395 disclosure of evidence, 398–403 fitness to stand trial, 163, 395–397 immunity, grant of, 409 indictments. See indictments initial appearance, charge, and entry of plea, 388–389 investigations. See investigations preliminary motions, 403–405 preparation for trial, 405–407 referral to national courts, 407–409 surrender and transfer (extradition), 357, 379, 386–388 precedent, force of, 107–112 pregnancy, forced, 214 prejudice to the accused, cumulative convictions causing, 434 preliminary motions, 403–405 Presidents, 593, 594, 598–599

INDEX

presumptions as to impartiality of judges, 416 as to innocence, 516–519 as to mental capacity or sanity, 332 as to prior adjudication, 127 primacy in concurrent jurisdiction with national courts, 123, 129, 132 prisoners. See detention; entries at imprisonment privileges. See also immunities International Committee of the Red Cross, 495 judicial deliberations, 496 lawyer-client, 493–495 non-codified, 495–496 prosecutorial information, 495 public policy basis for treatment of issues of, 120 war correspondents, 495 procedural issues, 348–350. See also pre-trial procedure; trials abuse of process, 539, 542 arrests, 377–383 guilty pleas and plea-bargaining, 423–428, 512 post-trial procedure, 438–439 appeal. See appeal and Appeals Chambers review, 450–451, 483–484 RPE applicable to, 439 RPE. See Rules of Procedure and Evidence professional and ethical standards for counsel, 613–618 property cultural, destruction of or wilful damage to, 262–264 jurisdiction over, 148–150 military necessity as defence to destruction of, 345–347 persecutions targeting, 110, 209, 218, 221 plunder of, 264–265 return of property and proceeds acquired by criminal conduct as part of sentencing, 551 war crimes involving. See war crimes

INDEX

Prosecutor. See OYce of The Prosecutor prostitution, forced, 213–214 protected persons, victims’ status as, 246–248 protection of witnesses, 473–474 provisional arrests, 377 provisional release, 389–395 public nature of tribunal trials, 423, 514–516 public policy as source of tribunal law, 120 Puissochet, Jean-Pierre, 14 punishable acts of crimes against humanity, 198 of genocide, 172, 237 war crimes. See war crimes punishment. See sentencing pyramidal approach of OTP, 604, 605 Radic´, Mlado, 500 rape and sexual assault. See also sexual violence amendment of indictment to include charges of, 372, 374, 621, 621 common treatment of, 109 consent as defence to, 341–343 consent, evidence regarding, 497–498 corroboration of testimony regarding, 497 as crime against humanity, 186, 209–211 defined, 209 dignity, outrages upon, 273 evidence regarding, 496–499 as genocide. See genocide prior sexual conduct of victim, admissibility of evidence of, 498 special rules of evidence for, 210 as torture, 208 as war crime, 271, 273 ‘rape shield’ provisions, 498 ratione materiae jurisdiction. See subject-matter jurisdiction

701

reasonable doubt standard for burden of proof, 463–467 reconciliation as objective of tribunals, 71 as principle of tribunals, 8 as purpose of sentencing, 49, 555, 561 recording of suspect interrogations, 503 records as evidence, 482 recusal or disqualification of judges, 415, 416–419, 510 Red Cross. See International Committee of the Red Cross referral of cases to national courts, 407–409 Registry, 607, 609 amici curiae or intervenors, 619–622 defence counsel units, 613–618 detention units, responsibility for, 609–611 Registrar, 607–608 victims and witnesses units, 611–613 rehabilitation, as purpose of sentencing, 559 release after acquittal, 433 conditional or early, after sentencing and service, 582 provisional, before trial, 389–395 remand, detention or release on, 389–395 removal or dismissal of judges, 509–510, 534 rendition (surrender and transfer), 357, 379, 386–388 reprisal, as defence, 344–345 Republika Srpska, 193, 245, 247, 392 res judicata, as general principle of law, 102, 105 restitution of property, 149 retribution at Nuremberg and Tokyo tribunals, 8 as purpose of sentencing, 554

702

INDEX

retroactivity (nullum crimen sine lege) crimes against humanity requiring presence of armed conflict, 187 forced transfers not involving national borders, fears regarding prosecution of, 224 legitimacy and legality of tribunals, 60–67 sources of law, 83, 105 subject-matter jurisdiction, as consequence of, 155–156 review, 450–451, 483–484 Riad, Fouad, 469 rights. See human rights law Robertson, Geoffrey, 84, 120, 280, 285, 352, 417, 493, 516 Robinson, Patrick, 394, 517 Rodley, Nigel, 26 Rodrigues, Almiro Simo¨es, 242 Ro¨ling, B. V. A., 74, 84 Roman Law on deportation or forced transfer, 204 Romano-Germanic vs. Anglo-American law jurisdictions. See civil, common and ‘other’ law jurisdictions, joint use of traditions of Rome Statute of the International Criminal Court. See also ‘Table of legislative provisions’ for citation of specific articles appeals, 440 creation and establishment of ICC, 7, 31–32 crimes against humanity, 188, 193, 198, 199, 200, 201, 204, 212, 214, 215, 222, 224, 225 equality before the law in, 511 general principles of law in, 167, 289, 291, 292, 296, 304, 311, 318, 326 genocide and mental element of crimes, 167 Hague Conventions’ customary status according to, 260 in absentia trials not covered by, 383

international humanitarian law, lack of references to, 153 judges, dismissal or removal of, 509 jurisdiction, 126, 132, 139 legality and legitimacy of tribunals, 53, 56 life imprisonment, 550 national laws brought into compliance with, 156 sources of tribunal law, 81, 100, 117 trial procedure, 429 war crimes, 228, 230, 240, 268, 269, 282 Roosevelt, Franklin Delano, 501 RPE. See Rules of Procedure and Evidence Ruggiu, Georges, 426. See also ‘Table of cases’ Rules of Procedure and Evidence (RPE) on abuse of process, 540 alibi, 189, 231 appeal based on non-compliance with, 447 consent, 341–343 defences, 326, 341–343 on evidentiary matters, 396, 452, 453 on national security information, 487 post-trial proceedings, applicability to, 439 primacy in concurrent jurisdiction with national courts, 126 procedural issues mainly contained in, 348 property, jurisdiction over, 148–150 rape, special rules of evidence for, 210 on rights of accused, 502 sentencing, 546, 549, 552, 567, 568 on sexual assault/violence, 211 as sources of law, 76, 84–89, 112–116 Russian Federation Cambodia, opposition to international tribunal in, 32 capital punishment, opposition to, 547 ICTY, creation and establishment of, 21

INDEX

on secret or sealed indictments, 365 Rutaganira, Vincent, 426. See also ‘Table of cases’ Ruzindana, Obed, 581. See also ‘Table of cases’ Rwamakuba, Andre´, 370. See also ‘Table of cases’ Rwanda. See also International Criminal Tribunal for Rwanda on capital punishment, 547, 548 gacaca, 568, 569, 607 governmental relations with ICTR, 27, 29, 30, 357 Hutu, 24, 25, 219 on location or seat of ICTR, 588 Penal Code, 173, 306 primacy in concurrent jurisdiction, 124 service of tribunal sentences, 578 Truth and Reconciliation Commission concept failing to take hold in, 607 Tutsi, 24, 25, 34, 166, 168, 174–175, 219, 550 Sankoh, Foday, 39, 417. See also ‘Table of cases’ Santer, Jacques, 12 Santic´, Vladimir, 385 Schacht, Hjalmar, 464 Scharf, Michael, 21, 474 Schomburg, Wolfgang, 417, 560 Scott, James Brown, 62 SCSL. See Special Court for Sierra Leone sealed or secret indictments, 365–366 security national security concerns and production of evidence, 485–488 objective of tribunals, peace and security as, 24, 68 principle behind tribunals, peace and security as, 8–9 self-defence, 335–337 self-incrimination, 473 self-representation, accused’s right of, 528–531

703

Semanza, Laurent, 543. See also ‘Table of cases’ seniority of criminals prosecuted, 38, 145–148 sentencing, 545 aggravating and mitigating circumstances, 566 capital punishment, exclusion of, 546 enforcement of sentence, 578 factors taken into account, 563, 566 ‘general practice’ rule, 552 global, concurrent, consecutive or cumulative, 551 hierarchy of crimes, tribunal rejection of, 561 imprisonment, terms of, 549 pardon or commutation, 580, 582 parole or conditional release, 582 place of service, 578 purpose of, 554 return of property and proceeds acquired by criminal conduct, 551 trial and post-trial procedures, 58, 429, 432–433, 448–449 Serbia. See International Criminal Tribunal for the former Yugoslavia Serbia and Montenegro (Yugoslavia), 130, 387. See also International Criminal Tribunal for the former Yugoslavia serious bodily or mental harm as genocide, 174–176 ‘other inhumane acts’ encompassing, 223 persecution entailing, 218 as war crime. See war crimes Serushago, Omar, 581. See also ‘Table of cases’ Sˇesˇelj, Vojislav, 417, 611. See also ‘Table of cases’ sexual assault. See rape and sexual assault

704

INDEX

sexual oVences against children, Sierra Leone law incorporated into SCSL Statute regarding, 119, 152 sexual slavery, 212–213 sexual violence. See also rape and sexual assault amendment of indictment to include charges of, 372, 374, 621 as crime against humanity, 211–215 as genocide. See genocide ‘other inhumane acts’ encompassing, 223 as war crime, 271, 418 Shahabuddeen, Mohamed, 80, 110, 112, 149, 166, 332, 366, 510, 583 Shattuck, John, 27 Sidhwa, Rustam, 353 Sierra Leone. See also Special Court for Sierra Leone Detention Unit for SCSL, 610 location or seat of SCSL in Freetown, 589 service of tribunal sentences, 578 Truth and Reconciliation Commissions, 34, 36, 146, 220, 411, 478, 548, 549, 607 silence, right of accused, 391, 419, 429, 532–533 suspects, 504 Simic´, Milan, 390. See also ‘Table of cases’ similar fact evidence (pattern of conduct), 499–500 site visits, 590 slavery. See enslavement and forced labour Sˇljivancˇanin, Veselin, 526. See also ‘Table of cases’ Slovenia, 21, 130, 133, 579. See also International Criminal Tribunal for the former Yugoslavia solemn declarations of witnesses, 471 sources of law, 74–78 academic writings, 107, 112

customary international law, 83–84, 97–102 general principles, 102–107 human rights law, 77, 95, 116–118 inherent or implied powers of tribunals, 112–116 international law, 74–78 jus cogens norms, 101–102 national criminal law, 118–119 national law, 74 penalty provisions, 119 precedent of other judicial decisions, 107–112 public policy as, 120 retroactivity, 83, 105 RPE as, 76, 84–89, 112–116 statutes as, 76, 78–84 subordinate or delegated legislation, 89–91 treaties, 91–96 South Africa, legacy and influence of tribunals in, 45 sovereign immunity, international crimes relaxing rules of, 158–160 Spain, service of tribunal sentences in, 579, 580, 582 Special Court for Sierra Leone (SCSL) and Statute. See also ‘Table of legislative provisions’ for citation of specific articles of the Statute amnesty issues, 34, 35–36, 37, 337–339 appeals, 85, 440, 441, 442 authoritative information as evidence, 478 budget for, 6, 39, 41, 623 common legal norms with ICTR and ICTY, 108–110 on compelling production of evidence, 467 completion strategy, 40, 491 on consent, as defence, 341–343 corporate bodies, personal jurisdiction over, 139 counsel, right to, 523 creation and establishment of, 5, 8, 34–40

INDEX

crimes against humanity, 187, 191, 211–213, 214, 215, 219 Detention Unit, 610 documentary evidence, use of, 482 equality before the law, right to, 228, 511 general principles of law, 290, 296–297 genocide not included in Statute, 161, 162 government of Sierra Leone, involvement of, 39 habeas corpus, lack of reference to, 539 history of country and its internal strife, 34, 174–175 hostage taking, 254 hybrid or mixed tribunal, as type of, 6, 37, 54, 132 joint criminal enterprise, 311, 312 judges, impartiality and independence of, 507–508 jurisdiction, 57, 123, 127, 139, 145–146, 151 juvenile offenders, jurisdiction over, 140–142 legitimacy and legality of, 53–60, 64 mutilation as war crime, 270 national law as source, 74 nationality and citizenship, 143–144 peace, international crimes committed in times of, 153, 424 penalty provisions, national criminal law used for, 119 persecution, 215, 219 personal jurisdiction, 139 ‘persons most responsible’, aimed at prosecution of, 38, 145–146 pre-trial procedure, 263, 351, 352, 353, 354, 355, 383, 404 on presumption of innocence, 516 principles behind establishment of, 8 procedural provisions, 348, 350 property, jurisdiction over, 148 retroactivity, 64, 65, 67 on rights of accused, 502 RPE of, 84–89

705

sentencing, 546, 548, 549, 552, 578 sexual violence, 211–213, 214 slavery, failure of Statute to address, 281 sources of tribunal law, 74, 78–84, 108, 119 sovereign immunity and, 159–160 speedy trial, right to, 521 structure and organisation, 589, 591, 593–594, 595, 596, 603 subject-matter jurisdiction, 151, 152 third States, rights of, 56–57, 59–60 timeline of conflict, 135 trial and post-trial procedure, 410 UN Security Council resolution, legitimacy derived in part from, 55–56, 59–60 war crimes, 254, 266, 269, 275, 276, 278, 282, 285 special defences, 326 special/specific intent or dolus specialis as general principle of law, 293–295 genocide, 164, 171, 320 for international crimes, 294, 506 persecution, 216 terrorism as war crime, 280 Srebrenica massacre (1995), 64, 170, 176, 331, 519, 565 Stalin, Josef, 501 standard of review on appeal, 444–448 Stanisic´, Mico, 385 Stankovic´, Radovan, 408, 544. See also ‘Table of cases’ stare decisis, 108 States. See also heads of State; national courts and criminal laws; third-party States, rights of arrest, surrender, and transfer requests, compliance with, 379 citizens, crimes against, 42, 189 crimes against humanity, 42, 189, 193 crimes committed by, 155 enforcement of sentence in national prisons of, 578 evidence, compelling production of, 77, 467–470

706

INDEX

States. See also heads of State; national courts and criminal laws; third-party States, rights of (cont.) genocide, involvement in, 171 international crimes, duties involving, 158 investigative dependence of tribunals on, 356 as third parties in trial and post-trial procedures, 411, 619–622 Status Conference, 405 statutes generally. See also ‘Table of legislative provisions’ RPE and, 86, 87–88 as sources of law, 76, 78–84, 89 Stephen, Chris, 19 Stephen, Ninian, 291, 332, 398, 474, 524 sterilisation, forced, 211, 214, 270–271 Stone, Norman, 13 strict liability and superior responsibility, 320 structure and organisation of tribunals, 587–588. See also Chambers; Judges; Office of The Prosecutor; Registry budget and financing, 6, 32, 39, 41, 352, 493, 622–623 location or seat, 588, 594 official languages, 590 Strugar, Pavle, 317, 396. See also ‘Table of cases’ subject-matter jurisdiction, 151–152. See also crimes against humanity ; genocide; war crimes consequences of, 155–160 contempt, 152 cumulative convictions, 434–438 over ‘international crimes’, 152–160 national laws, crimes under, 152 nature of crimes covered by, 152–160 perjury, 152 over ‘universally condemned oVences’, 151, 155 subpoenas, 468–469 Sudan and Darfur Commission

crimes against humanity, definition of, 185 forcible displacement not regarded as genocide in, 167 groups against which genocide is committed, 168 ICC, referral of Darfur situation by UN to, 7, 32, 76 proposal to establish tribunal, 5 suVering, serious. See serious bodily or mental harm superior orders, as defence, 329–331 superior responsibility, as general principle of law, 314–324 surrender and transfer (extradition), 357, 379, 386–388 Susak, Gojko, 486 Susica camp, 211 suspects accused distinguished from, 358 detention of, 504–505 rights of, 358, 503–505 Swaziland, service of tribunal sentences in, 580 Sweden, service of tribunal sentences in, 579, 580, 582 Switzerland legacy and influence of tribunals in, 45 service of tribunal sentences in, 580 ‘systematic or widespread attack’ requirement for crimes against humanity, 191–196 Tadic´, Dusˇko, 23, 24, 49, 124, 211, 215, 243, 352, 369, 384, 471, 527, 561, 580, 582, 619. See also ‘Table of cases’ Tanaka, Makiko, 438 Tanzania ICTR located in Arusha, 588 territorial jurisdiction of tribunals, 130 United Nations Detention Unit, 558, 610 Taylor, Charles G., 40, 57, 59–60, 160, 199, 328, 357, 366

INDEX

teachings, academic, as source of law, 107, 112 temporal jurisdiction, 132–138 territorial jurisdiction, 129–132 terrorism as war crime, 280–281 testimony. See evidence; witnesses and testimony Thatcher, Margaret, 11 third parties in trial and post trial procedures, 411, 619–622 third-party States, rights of ICC territorial jurisdiction and, 132 treaties, tribunals established by, 56–57, 59–60 Thompson, Bankole, 364 threats to violate common article 3 of Geneva Conventions as war crimes, 274, 621 Thune, Gro Hillestad, 15 Timor l’Este. See East Timor Tisdall, Simon, 19 Tito, death of, 13 Tokyo tribunal capital punishment, 546 creation and establishment of, 3, 10 hearsay evidence, 480 legacy and influence of, 44 legitimacy and legality questioned by defendants, 47 multinational rather than international nature of, 7 retributive premise of, 8 sentencing, 545 as source of tribunal law, 110 UN not involved in, 3 Tolbert, David, 524, 614 torture as crime against humanity, 205–209 defined, 205 rape as, 208 as serious bodily or mental harm constituting genocide, 174–176 as war crime, 250 ‘totality principle’ in sentencing, 551 towns and cities undefended, attacks on, 262

707

wanton destruction as war crime, 209, 261–262 trafficking in persons (‘white slavery’), 154. See also enslavement and forced labour transfers of accused (extradition), 357, 379, 386–388 transfers of population, forcible. See forced transfer or displacement treaties. See also ‘Table of legislative provisions’ ICTY and ICTY statutes resembling, 79 as sources of tribunal law, 91–96 tribunals created by, 53–60 violation of laws or customs of war in breach of, 256 trial, 410–412 accused rights of. See accused statement of, 428 conduct of, 428–429 cumulative convictions, 434–438 dismissal, motion for, 430–432 disqualification of judges, 415, 416–419 equality of arms, 513–514 fitness to stand trial, 163, 395–397 guilty pleas and plea bargaining, 423–428, 512 in absentia, 382, 419–422, 523 in camera sessions, 423, 514–516 judicial bench, composition of, 412–419 opening statements, 428 preparation prior to, 405–407 public nature of, 423, 514–516 replacement of judge or trial de novo, 412–416 rights of accused at. See accused sentencing procedures, 58, 429, 432–433, 448–449. See also sentencing verdict or judgment, 412, 432–433, 448–449 war crime, deprivation of right to fair trial as, 205, 273

708

INDEX

Trial Chambers, 593–594 tribunals. See also more specific entries, e.g. creation and establishment of tribunals alternative judicial mechanisms, 32–34 budget for, 6, 32, 39, 41, 352, 493, 622–623 hierarchy under ICJ, 111 ICC as permanent alternative to, 31–32, 327 independence and impartiality as right of accused, 505–511 inherent or implied powers of, 112–116 languages used at, 590 legacy and influence of, 44–46 location or seat, 588, 594 objectives of, 67 principles behind, 8–9 Trinidad and Tobago, proposal to create an international criminal court by, 11 Truche, Pierre, 20 Truth and Reconciliation Commissions Bosnia and Herzegovina, proposed for, 606 Rwanda, failure to take hold in, 607 Sierra Leone, 34, 36, 146, 411, 478, 220, 548, 549, 607 tu quoque, as defence, 339, 454 Tudjman, Franjo, 246, 604 Tu¨rk, Helmut, 15 Tutsi, 24, 25, 34, 166, 168, 174–175, 219, 550 Uganda on territorial jurisdiction of tribunals, 130 UN budget for tribunals, 6, 32, 39, 41, 352, 493, 622–623 international criminal justice as part of agenda of, 3–9, 10, 86 precursors of ICC, encouragement of, 3, 10, 11, 83, 620 world government, acting as, 7

UN Charter. See also ‘Table of legislative provisions’ for citation of specific articles attacks on humanitarian personnel or peacekeepers working in accordance with, 284 ICJ described as principal judicial organ of UN in, 111 legitimacy and legality of tribunals created under power of, 48–53 Nuremberg and Tokyo tribunal defendants raising questions about interpretation of, 4, 152 objectives of tribunals and goals of, 68 power to establish tribunal under, 22 as source of tribunal law, 92–93, 443 UN Commission on Human Rights/ Human Rights Committee capital punishment, opposition to, 546 free legal assistance and right to choose counsel, 525 genocide, use as term, 161 on habeas corpus, 539 on in absentia trials, 419 on presumption of innocence, 518 sources of law, 110, 117 UN Security Council on determination of existence of armed conflict, 230 on purpose of tribunal sentencing, 554, 555 UN Security Council Resolutions. See also ‘Table of legislative provisions’ for citation of specific Resolutions judicial notice of facts of common knowledge, 490 legitimacy and legality of tribunals created by, 48–53, 55–56, 59–60 United Kingdom defence of reprisal not accepted in, 115, 345

INDEX

‘effects’ jurisdiction, 131 ICTY, creation and establishment of, 15, 17, 20 Iraqi tribunal, proposal for, 11 legacy and influence of tribunals in, 46 NATO troops, 381 polygraphs, case law as to, 324, 457 service of tribunal sentences in, 579, 580, 582 United Nations. See entries at UN United States arrest, surrender and transfer requests from tribunals, 357, 387 capital punishment, opposition to, 547, 548 completion strategy, pressure for, 43 ‘effects’ jurisdiction, 131 existence of international armed conflict in Nicaragua case, 243–245 ICC, hostility to, 32, 54, 132 ICTR, creation and establishment of, 27, 28 ICTY, creation and establishment of, 16, 19, 20, 21, 230 Iraqi tribunal, proposal for, 11 legacy and influence of tribunals in, 45 nationality and personal jurisdiction of tribunals, concern over, 144 NATO troops, 381 polygraphs, case law as to, 324, 457 reasonable doubt in case law of, 464 universal jurisdiction, 126, 128, 154, 157 ‘universality principle’, 155 ‘universally condemned oVences’, subject-matter jurisdiction over, 151, 155 unus testis, nullus testis, 484 Vance, Cyrus, 14 Venezuela and Italian-Venezuelan Mixed Claims Commission, 104

709

verdict or judgment, 412, 432–433, 448–449 victims compensation for, 150, 578 Registry unit for, 611–613 status as protected persons, 246–248 Vohrah, Lal Chand, 104, 105, 120, 291 voluntary intoxication as defence, 334–335 von Papen, Frans, 464 Vujin, Milan, 449 Wald, Patricia, 72, 87, 353, 449, 457, 490, 491, 562 war. See armed conflict war correspondents, privileges of, 495 war crimes, 226–229 armed conflict existence as element of war crimes, 229–231 international conflict, 231–236, 243–246 knowledge of, 239–240 nexus of crime with, 236–239 non-international conflict, 228, 231–236 biological experimentation as, 251 child soldiers, 279–285 cities and towns undefended, attacks on, 262 wanton destruction of, 209, 261–262 civilians defined for purposes of grave breaches of Geneva Conventions, 248–249 international humanitarian law, other serious violations of, 282–283 collective punishment as, 279 cruel treatment, 214, 270–271 cultural property, destruction of or wilful damage to, 262–264 dignity, outrages upon, 272–273 enslavement and forced labour as, 99, 100, 105, 274, 281–282, 290, 401

710

INDEX

war crimes (cont.) forced transfers, 205–209 Geneva Conventions grave breaches of, 240–243 ‘other violations’, 274 violations of common article 265–274 violations specific to Additional Protocols, 275–282, 285 hierarchy of genocide, war crimes and crimes against humanity, tribunal rejection of, 561 hostage taking as, 253, 271 humanitarian personnel, attacks on, 284 imprisonment of civilians, 253–254 inhuman treatment as, 190, 206, 250, 270, 272 as international crime, 154–155 international humanitarian law, other serious violations of, 282 killing murder as violation of common article 3 of Geneva Conventions, 269 outrage against personal dignity, murder not regarded as, 273 violence to life and person as violation of common article 3 of Geneva Conventions, 269 wilful killing as grave breach of Geneva Conventions, 249 laws or customs of war, violations of, 255–258, 275–282, 285 military service, forced, 205 mutilation, 270 not all international crimes characterisable as, 152 occupation, 255 ‘other inhumane acts’ overlapping, 225 overlap with genocide and crimes against humanity, 434–438 peacekeepers, attacks on, 284

persecutions as crimes against humanity overlapping, 220 pillage as, 280, 285 prohibited weapons, employment of, 261 property cultural, destruction of or wilful damage to, 262–264 extensive destruction or appropriation of, 252 plunder of, 264–265 punishable acts under Additional Protocols, 279–285 under article 3 of ICTY Statute, 258–265 under common article 3 of Geneva Conventions, 265–274 as grave breaches of the Geneva Conventions, 249–254 international humanitarian law, other serious violations of, 282 rape, 271, 273 serious bodily or mental harm as grave breach of Geneva Conventions, 251 mutilation as violation of common article 3 of Geneva Conventions, 270 violence to life and person as violation of common article 3 of Geneva Conventions, 269 sexual violence, 271, 418 terrorism as, 280–281 threats to violate common article 3 of Geneva Conventions as, 274, 621 torture as, 250 trial, deprivation of right of, 205, 273 in tribunal statutes, 151 use of term, 228 victims’ status as protected persons, 246–248 ‘white slavery’ or trafficking in persons, 154. See also enslavement and forced labour

INDEX

‘widespread or systematic attack’ requirement for crimes against humanity, 191–196 Wierda, Marieke, 452, 464, 470 Wilhelm II (Kaiser), 9 Winter, Renate, 410, 418, 422, 515, 570 withdrawal of indictments, 375–377 witnesses and testimony, 470–475 affidavits, 477 anonymous testimony, 474, 503 children, 471 compelling production of, 467, 469 conduct of trial, 428–429 depositions, 476–477 examination of, 472 expert witnesses, 471, 480 in camera sessions, 423, 514–516 judges, witnesses called by, 429 languages, 593 prior, out-of-court, and unsworn statements, 457 protection of, 473–474 Registry unit for victims and witnesses, 611–613

711

self-incrimination, 473 solemn declarations, 471 by video-link, 474–475 World War I, international criminal prosecution instruments in wake of, 9 writings, academic, 107, 112 wrongful prosecution, redress for, 537–539 Yugoslavia, current. See Serbia and Montenegro Yugoslavia, former. See International Criminal Tribunal for the former Yugoslavia Zaire (Democratic Republic of the Congo) non bis in idem provisions of ICTY Statute, discontent with, 536 primacy in concurrent jurisdiction, rule for, 124 territorial jurisdiction of tribunals, 130 Zˇigic´, Zoran, 500

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