Schabas - The Un Tribunals

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THE UN I NTE RNATI ONAL

CRI MI NAL TRI BUNAL S
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
conict in those countries. Building on the work of an earlier genera-
tion 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 (geno-
cide, 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 tribu-
nals, 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 specic aspects of the activities of these
tribunals, this is the rst 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).
THE UN I NTERNATI ONAL
CRI MI NAL TRI BUNALS:
The Former Yugoslavia, Rwanda and Sierra Leone
WI L L I AM A. S CHABAS
caxniioci uxiviisir\ iiiss
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, So Paulo
Cambridge University Press
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First published in print format
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William Schabas 2006
2006
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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.
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Published in the United States of America by Cambridge University Press, New York
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To Marguerite and Louisa
CONTENTS
Prefac e page ix
Table of cases x
Table of leg islative prov isions xlv i
List of abb re v iat ions liv
PA R T I Estab lishment of the tr ibuna ls 1
1 Creation of the tribun als 3
2 The legitimac y and legalit y of the tribunals 47
3 Sources of law 74
PA R T I I Jur is diction 121
4 Terri torial, pers onal a nd tempo ral jurisdicti on 123
5 Subject-matter jurisdi ction generall y 151
6 Genoc ide 161
7 Crime s against humani t y 185
8 War cri mes 226
PA R T I I I Substantive and procedural aspect s of pr osecution 287
9 General principle s of law 289
10 Investigation and pre-tri al procedure 348
11 Trial and post-tri al procedure 410
12 Ev idence 452
vii
13 Rig hts of the accused 501
14 Punishment 545
PA R T I V Org anisa tion of the tr ibuna ls 585
15 Structu re and administr ation of the t ribunals 587
Biblio graphy 624
Index 678
viii C O N T E N T S
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 eld has grown exponen-
tially, 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. Hope-
fully, 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 Co te, Megan
Fairlie, Larry Johnson and Ola Olusanya. My institution, the National Uni-
versity 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
OSullivan at Cambridge University Press has been, as always, full of encour-
agement as well as bits of ne 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
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,
174175, 177, 181, 192, 206, 211,
212, 223, 238, 278, 300, 304, 307,
308, 360, 372, 402, 446, 453,
454455, 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
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, 444445, 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
(Requete aux ns de traduction des
memoires de lAppelant), 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
x
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 Prosecutors 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,
President de la Chambre de
priemiere 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
Bagambiki et al. (ICTR-97-36-I),
for the Separation of Crimes and
Trails, 30 September 1998, 360
Bagambiki et al. (ICTR-99-46-0550),
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 Defences Motion to have
the Prosecutors 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
Prosecutors Motion for Joinder, 29
June 2000, 368, 369
TA B L E O F C A S E S xi
Bagosora (ICTR-98-41-I), Decision and
Scheduling Order on the
Prosecution Motion for
Harmonisation and Modication
of Protective Measures for
Witnesses, 5 January 2002, 227, 402
Bagosora (ICTR-98-41-I), Decision on
Prosecutors Motion for
Deposition of Witness OW, 5
January 2002, 476
the Defence Motion for Release, 12
July 2002, 391, 574
the Defence for Bagosoras 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
on Continuation or
Commencement de novo of Trial,
11 June 2003, 416
Amicus Curiae Request by African
Concern, 23 March 2004, 620
Prosecutors Motion for Site Visits
in the Republic of Rwanda, 29
September 2004, 590
on Prosecution Request for
Testimony of Witness BT
Via Video-Link,
8 October 2004, 475
Amicus Curiae Request by the
Rwandan Government, 13 October
2004, 149, 620
Testimony by Video-conference, 20
December 2004, 475
Motions for Judgment of
Acquittal, 2 February 2005, 182,
224, 431
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
Prosecutors Appeal from the
Decision of a Conrming Judge
Dismissing an Indictment against
Theoneste 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
Decision (Prosecutors Request for
Review or Reconsideration), 31
March 2000, 75, 89, 450, 504, 538,
540, 620
xii TA B L E O F C A S E S
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 (Fede ration nationale des
de porte s et interne s resistants et
patriotes et al. v. Barbie, (1984) 78
ILR 125), 44
Barcelona Traction case, 438
Bell v. Wolsh, 441 US 520 (1979), 518
Bizimungu (ICTR-99-50-AR50), Decision
on Prosecutors 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 Qualication 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 Mugiranezas 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
Prosper Mugiranezas First Motion
for Judicial Notice Pursuant to
Rule 94(B), 10 December 2004,
489, 492
Jeroeme-Clement Bicumumpakas
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 Qualication 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 Blagojevics and Dragan
Obrenovics 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 Blagojevics 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
TA B L E O F C A S E S xiii
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
on Prosecutions Motions for
Admission of Expert Statement, 7
November 2003, 481
on Prosecutions 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
Blas kic (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
Blas kic (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
Blas kic (IT-95-14-PT), Decision, 14
October 1996, 9293, 443
Blas kic (IT-95-14-T), Decision on Motion
of the Defence Seeking
Modication of the Conditions of
Detention of General Blaskic, 9
January 1997, 517
Blas kic (IT-95-14), Decision on the
Production of Discovery Materials,
27 January 1997, 398, 400
Blas kic (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
Blas kic (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
Blas kic (IT-95-14-T), Order, 30 January
1998, 488
Blas kic (IT-95-14-T), Decision on the
Prosecutor and Defence Motions to
Proceed by Deposition, 19
February 1998, 476
Blas kic (IT-95-14-T), Order, 29 April
1998, 488
Blas kic (IT-95-14-T), Decision of Trial
Chamber I on the Defence Motion
to Dismiss, 3 September 1998, 81
Blas kic (IT-95-14-T), Decision on the
Defence Motion for Sanctions for
the Prosecutors Continuing
Violation of Rule 68, 28 September
1998, 400
Blas kic (IT-95-14-T), Decision to Order
the Witness Slavko Marin to
Appear Before Trial Chamber I, 15
October 1998, 469
Blas kic (IT-95-14-T), Order for a Witness
to Appear, 5 November 1998, 488
Chamber I in respect of the
Appearance of Colonel Robert
Stewart, etc., 25 March 1999, 471
Blas kic (IT-95-14-T), Order for the
Production of Documents Used to
Prepare for Testimony, 22 April
1999, 100, 401
Chamber I on the Protective
Measures for General Philippe
Morillon, Witness of the Trial
Chamber, 12 May 1999, 362,
423, 469
xiv TA B L E O F C A S E S
Blas kic (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, 444445, 552,
558, 560, 561, 563, 568, 569, 570,
571, 572, 573, 574, 575, 576,
577, 580
Blas kic (IT-95-14-A), Decision on the
Appellants Motions for the
Production of Material, Suspension
or Extension of the Brieng
Schedule, and Additional Filings,
26 September 2000,
399, 400
Blas kic (IT-95-14-A), Decision on
Evidence, 31 October 2003,
99, 410, 484
Blas kic (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
Blas kic (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 Tarculovskis 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
Brandsetter v. Austria, (1991) 15 EHRR
213, 219, 513
Branin (IT-99-36), 167, 201, 463
Branin (IT-99-36-PT), Decision on
Motion to Dismiss Indictment, 5
October 1999, 87, 371
Petition for a Writ of Habeas
Corpus on Behalf of Radoslav
Branin, 8 December 1999, 97
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
Motions by Momir Talic for a
Separate Trial and for Leave to File
a Reply, 9 March 2000, 371
Application by Momir Talic for the
Disqualication and Withdrawal
of a Judge, 18 May 2000, 107, 560
Branin (IT-99-36-A), Decision on
Application for Leave to Appeal, 7
September 2000, 5, 393
Motion by Branin for Provisional
Release, 18 September 2000,
392, 393
Branin (IT-99-36), Decision on Filing
Replies, 7 June 2001, 372
Form of Further Amended
Indictment and Prosecution
Application to Amend, 26 June
2001, 362, 469
Branin (IT-99-36-PT), Order on the
Standards Governing the
Admission of Evidence, 15
February 2002, 456, 482
TA B L E O F C A S E S xv
Branin (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 Branin and on Rule 90
(H)(ii) Submissions by the
Accused Momir Talic, 22 March
2002, 87
Motion for Production of
Documents Dzonlic Testimony of
11 March 2002, 9 April 2002, 494
Motion to Set Aside Condential
Subpoena to Give Evidence, 7 June
2002, 459
Branin (IT-99-36-T), Decision to
Grant Certication to Appeal the
Trial Chambers Decision on
Subpoena to Give Evidence, 19
June 2002, 442
Branin (IT-99-36-AR73.9), Decision on
Interlocutory Appeal, 11 December
2002, 459, 462, 495
Subpoena to Give Evidence, 15
December 2002, 495
Branin (IT-99-36-T), Order for
Testimony via Video-Conference
Link Pursuant to Rule 71 bis, 9
September 2003, 475
Branin (IT-99-36-T), Decision on the
Defence Objection to Intercept
Evidence, 3 October 2003, 460
Motion for Acquittal Pursuant to
Rule 98 bis, 28 November 2003, 313
Interlocutory Appeal, 19 March
2004, 313
Branin (IT-99-36-R77), Concerning
Allegations Against Milka Maglov,
Decision on Motion for Acquittal
Pursuant to Rule 98 bis, 19 March
2004, 114
Branin (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 Chambers
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, 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
C
elebic i case. See Delalic et al.

C
erkez case. See Kordic et al.

Chorzow Factory case (Merits), [1928]
PCIJ Reports, Series A, No. 17, 103
xvi 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
Conrmation 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 Prosecutors
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
the Motion on Presentation of
Evidence by the Accused, 1 May
1997, 453, 472
the Motion to allow Witnesses K, L
and M to give their Testimony by
Means of Video-Link Conference,
28 May 1997, 475
the Prosecutions Motion for the
Redaction of the Public Record, 5
June 1997, 499
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 Mucics Request for
Serbo-Croatian Interpretation, 23
June 1997, 532
Request of the Accused Hazim
Delalic Pursuant to Rule 68 for
Exculpatory Information, 24 June
1997, 400
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
Zdravko Mucics Motion for the
Exclusion of Evidence, 2 September
1997, 460, 463
the Motion of the Prosecution for
the Admissibility of Evidence, 19
January 1998, 456
the Admissibility of Exhibit 155, 19
January 1998, 456
TA B L E O F C A S E S xvii
Delalic et al. (IT-96-21-T), Order on Esad
Landzos Submission Regarding
Diminished or Lack of Mental
Capacity, 18 June 1998, 333
the Alternative Request for
Renewed Consideration of
Delalics 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
testicandum to Nurko Tabak, 25
June 1998, 469
the Motion by the Defendant
Delalic Requesting Procedures for
Final Determination of the Charges
Against Him, 1 July 1998, 369
the Prosecutions Alternative
Request to Reopen the
Prosecutions 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
Landzo, 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
xviii 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
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, 424425, 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, 281282, 290,
291, 350
Dissenting Opinion of Judge Li, 7
October 1997, 107,
120, 187
Stephen, 7 October 1997, 524
TA B L E O F C A S E S xix
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
Fede ration nationale des deportes et
interne s resistants 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), Condential
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 Conict, 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,
232236, 532
Furundzija (IT-95-17/1), 78, 92, 98,
206, 208, 322, 342, 385, 403, 416,
418, 497
Furundzija (IT-95-17/1-T), Decision on
the Defendants Motion to Dismiss
Counts 13 and 14 of the
Indictment (Lack of Subject-Matter
Jurisdiction), 29 May 1998, 246
Furundzija (IT-95-17/1-T), Amended
Indictment, 2 June 1998, 246, 526
Furundzija (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
Furundzija (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 Prosecutors
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 Quebec 454, 64
Galic (IT-98-29), 225, 281, 346, 500
Galic (IT-98-29-AR73.2), Decision
on Interlocutory Appeal
xx 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
Goring case (France et al. v. Goring et al.,
(1946) 22 IMT 203, 13 ILR 203), 7,
10, 54, 62, 98, 157, 227, 228, 260,
263, 330, 395, 464
The Greek Case, (1972) 12 Yearbook of
the European Convention on
Human Rights 186, 250
Hadz ihasanovic et al. (IT-01-47-PT),
Decisions granting Provisional
Release to Enver Hadzihasanovic,
Mehmed Alagic and Amir Kubura,
9 December 2001, 394, 532
Hadz ihasanovic et al. (IT-01-47-PT),
Decision on Joint Challenge to
Jurisdiction, 12 November 2002,
65, 66, 95, 101, 620
Hadz ihasanovic 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
Hadz ihasanovic et al. (IT-01-47-AR72),
Partial Dissenting Opinion of
Judge Shahabuddeen, 16 July
2003, 106
Hadz ihasanovic et al. (IT-01-47-T),
Decision Pursuant to Rule 65
Granting Amir Kubura
Authorization to Attend his
Mothers 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
TA B L E O F C A S E S xxi
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-01-
46), 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.
Alstotter 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
xxii 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 Prosecutors 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
Prosecutors 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)),
Amnesty, 13 March 2004,
338, 540
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 Kamuhandas 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 Kamuhandas Motion for Partial
Acquittal Pursuant to Rule 98 bis of
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
TA B L E O F C A S E S xxiii
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 Nieto-
Navia, 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
Evidence), 13 June 2001, 391, 574
In re Kappler, (1948) 15 ILR 471 (Military
Tribunal of Rome), 279
Karadz ic et al. (IT-95-5 and IT-95-18), 19,
20, 24, 69, 347, 381, 388
Karadz ic et al. (IT-95-5-R61 and
IT-95-18-R61), Deferral, 16 May
1995, 327
Karadz ic et al. (IT-95-5-I), Indictment, 24
July 1995, 19, 177
Karadz ic et al. (IT- 95-18-R61, IT-95-5-
R61), 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 Prosecutors
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
Disqualication 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
Nziroreras 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 Nziroreras
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
Evidence, 14 February 2005, 312,
370, 373
Kayishema et al. (ICTR-95-1), 169171,
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
xxiv 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
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
Judgment and Sentence, 16 May
2003, 199
Kolundzija (IT-95-8-I and IT-98-30-PT),
Decision Rejecting Prosecutors
Request for Leave to Amend
Indictments, 6 July 1999, 363
Kondewa. See also Norman et al.
Kondewa (SCSL-04-14-AR72(E))
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
Prosecutors Motion for Leave to
Withdraw the Indictment Against
Pero Skopljak, 19 December
1997, 375
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 Lasva Valley and Related Cases,
12 November 1998, 453, 502
Accused Mario C
erkezs
Application for Separate Trial, 7
December 1998, 370
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
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
Joint Defence Motion to Dismiss
the Amended Indictment Due
to the Illegal Foundation of
the Tribunal, 1 March
1999, 53, 78
the Joint Defence Motion to
Dismiss for Lack of Jurisdiction
Portions of the Amended
Indictment Alleging Failure to
Punish Liability, 2 March 1999,
317
TA B L E O F C A S E S xxv
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
Decision on Appeal regarding
Statement of a Deceased Witness,
21 July 2000, 454, 456, 457, 462
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
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 C
erkez
for Extension of Time to File his
Respondents 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
Schomburg and Judge Guney 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
Kovac evic (IT-97-24), 373, 396
Kovac evic (IT-97-24-I), Indictment, 13
March 1997, 177
Kovac evic (IT-97-24-I), Decision on
Prosecutors Request to File an
Amended Indictment, 5 March
1998, 371, 373
Kovac evic (IT-97-24-AR73), Decision
Stating Reasons for Appeals
Chambers Order of 29 May
1998, 374
Kovac evic (IT-97-24-PT), Decision
Refusing Defence Motion
for Subpoena, 23 June
1998, 468
xxvi TA B L E O F C A S E S
Kovac evic (IT-97-24-PT), Decision on
Defence Motion to Reconsider, 30
June 1998, 502
Kovac evic (IT-97-24-AR73), Separate
Opinion of Judge Shahabuddeen, 2
July 1998, 367, 503
Kovac evic (IT-97-24-PT), Decision on
Defence Motion to Strike Counts 4,
5, 8, 9, 10, 11, 13 and 15, 6 July
1998, 108
Kovac evic (IT-01-42/2-I), Decision on
Provisional Release, 2 June
2004, 390
Kovac evic (IT-01-42/2-PT), Order on the
Prosecutors 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
Clarication 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 Krajisniks Notice of
Motion for Provisional Release, 8
October 2001, 393, 394, 518
Krajisnik (IT-00-39 and 40), Decision on
Prosecutions 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
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, 444445, 480, 481,
TA B L E O F C A S E S xxvii
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
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 Conrming 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-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, 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
Kupres kic (IT-95-16), 89, 221, 283, 332,
344, 345, 359, 375, 385, 444, 454,
461, 483, 538, 559, 590
Kupres kic (IT-95-16-PT), Decision on
Motion by the Prosecutor for
Withdrawal of Indictment Against
Marinko Katava, 19 December
1997, 375
Kupres kic (IT-95-16-T), Decision on
Communication Between the
Parties and their Witnesses, 21
September 1998, 461, 473
Kupres kic (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
Kupres kic (IT-95-16-T), Decision, 11
January 1999, 353, 400, 406, 514
Kupres kic (IT-95-16-T), Decision On
Defence Motion to Summon
Witness, 8 February 1999, 469
Kupres kic (IT-95-16-T), Decision On
Prosecution and Defence Requests
to Proceed by Deposition, 11
February 1999, 476
Kupres kic (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
Kupres kic (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
Kupres kic (IT-95-16-AR73.3), Decision
on Appeal by Dragan Papic Against
Ruling to Proceed by Deposition,
15 July 1999, 477
Kupres kic (IT-95-16-T), Judgment, 14
January 2000, 78, 81, 102, 103, 105,
107, 111, 190, 191, 194, 199, 215,
xxviii 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
Kupres kic (IT-95-16-A), Decision on the
Motions of Drago Josipovic, Zoran
Kupreskic and Vlatko Kupreskic 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
Kupres kic (IT-95-16-A), Appeal
110, 136, 218, 299, 332, 359, 434,
435, 444, 445, 446, 454, 468, 480,
481, 484, 499, 500, 520,
553, 575
Kupres kic (IT-96-16-T), Request by
Zoran Kupreskic, 21 December
2001, 538
Kvoc ka et al. (IT-98-30/1), 207, 208, 212,
272, 303, 312, 390, 475
Kvoc ka et al. (IT-98-30/1-PT), Decision
on Preliminary Motions Filed by
Mladko Radic and Miroslav Kvocka
Challenging Jurisdiction, 1 April
1999, 234
Kvoc ka et al. (IT-98-30-PT), Decision on
Defence Preliminary Motions on
the Form of the Indictment, 12
April 1999, 108, 361
Kvoc ka et al. (IT-98-30-PT and IT-95-8-
PT), Decision on Prosecutors
Motion for Joinder, 19 October
1999, 371
Kvoc ka et al. (IT-98-30-PT), Decision on
Motion for Provisional Release of
Miroslav Kvocka, 2 February
2000, 393
Kvoc ka et al. (IT-98-30-T and IT-95-4-
PT), Decisions on Prosecution
Motion to Join Trials, 14 April
2000, 370, 371
Kvoc ka et al. (IT-98-30/1-T), Decision on
Judicial Notice, 8 June 2000, 493
the Defence of Alibi for the
Accused Zoran Z
igic, 21 July
2000, 400
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
Defence Motions for Acquittal, 15
December 2000, 431
Kvoc ka 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
Kvoc ka et al. (IT-98-30/1-A), Decision on
Review of Registrars Decision to
Withdraw Legal Aid from Zoran
Z
igic, 7 February 2003, 465, 524

Kvoc ka 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
Kvoc ka 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
TA B L E O F C A S E S xxix
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 Muslius Request for
Provisional Release, 31 October
2003, 95, 332334
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,
232236, 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
Milos evic et al. (IT-99-37), 149, 312, 327,
328, 361, 364, 367
Milos evic (IT-01-51), 367
Milos evic (IT-02-54), 231, 268,
367, 422, 494, 515,
528530
Milos evic et al. (IT-99-37-PT),
Indictment, 22 May 1999, 327
Milos evic et al. (IT-99-37-I), Decision on
Review of Indictment and
Application for Consequential
Orders, 24 May 1999, 149, 364
Milos evic (IT-01-50-I), Indictment, 8
October 2001, 521
Milos evic et al. (IT-99-37-PT), Second
Amended Indictment, 16 October
2001, 312, 361
Milos evic (IT-02-54-PT), Decision on
Preliminary Motions, 8 November
2001, 50, 63, 92, 97, 99, 107, 159,
328, 539, 542, 621
Milos evic (IT-01-51-I), Indictment, 22
November 2001, 19, 68, 212, 361
Milos evic (IT-99-37-PT, IT-01-50-PT and
IT-01-51-PT), Decision on
Prosecutors Motion for Joinder, 13
December 2001, 367
Milos evic (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, 367
Milos evic (IT-02-54-T), Public Version of
the Condential Decision on the
Prosecutors Motion to Grant
Specic Protection Pursuant to
Rule 70, 25 July 2002, 487
Milos evic (IT-02-54-AR73.2), Decision on
Admissibility of Prosecutions
xxx TA B L E O F C A S E S
Investigator Evidence, 30
September 2002, 455
Milos evic (IT-02-54-T), Order on
Prosecution Motion for the
Testimony of Nojko Marinovic via
Video-Conference Link, 19
February 2003, 475
Milos evic (IT-02-54-T), Decision on
Prosecution Motion for Protective
Measures (Concerning a
Humanitarian Organisation),
Public Version of a Condential
Decision Filed 13 March 2003, 1
April 2003, 515
Milos evic (IT-02-54-T), Reasons for
Decision on the Prosecution
Motion Concerning Assignment of
Counsel, 4 April 2003, 494, 528
Milos evic (IT-02-54-AR73.4), Dissenting
Opinion of Judge David
Hunt, 30 September
2003, 43, 414
the Prosecutions Interlocutory
Appeal Against the Trial Chambers
10 April 2003 Decision on
Prosecution Motion for Judicial
Notice of Adjudicated Facts, 28
October 2003, 492
Milos evic (IT-02-54-AR73.5), Dissenting
Opinion of Judge David Hunt, 28
October 2003, 517
Milos evic (IT-02-54-AR73.5), Separate
Opinion of Judge Shahabuddeen
Appended to the Appeals
Chambers Decision dated 28
October 2003 on the Prosecutions
Interlocutory Appeal against
the Trial Chambers 10 April
2003 Decision on Prosecution
Motion for Judicial Notice of
Adjudicated Facts, 28 October
2003, 492
Milos evic (IT-02-54-T), Final Decision on
Prosecution Motion for Judicial
Notice of Adjudicated Facts, 16
December 2003, 490
Motion for Judgment of
Acquittal, 16 June 2004,
94, 189, 204, 231, 234,
278, 449, 453, 480,
481, 482
Milos evic et al. (IT-99-37-PT), Second
Amended Indictment, 28 July
2004, 133
Milos evic (IT-02-54-T), Order on the
Modalities to be Followed by Court
Assigned Counsel, 3 September
2004, 397
Milos evic (IT-02-54-T), Reasons for
Decision on Assignment of Defence
Counsel, 22 September 2004, 422,
494, 495, 516, 529
Interlocutory Appeal of the Trial
Chambers Decision on the
Assignment of Defence Counsel,
1 November 2004, 397, 422,
530, 621
Assigned Counsels Motion for
Withdrawal, 7 December
2004, 87, 116
Milos evic (IT-02-54-T), Decision
Arming the Registrars Denial of
Assigned Counsels Application to
Withdraw, 7 February 2005, 528
Milos evic v. The Netherlands (App. No.
77631/01), Admissibility Decision,
19 March 2002, 543
Milos evic v. The Netherlands, Case No.
KG. 01/975, ELRO No. AD
3266, 543
Milutinovic et al. (IT-99-37-AR72),
Decision on Draguljob Ojdanics
TA B L E O F C A S E S xxxi
Motion Challenging Jurisdiction
Joint Criminal Enterprise, 21 May
2003, 3132, 310, 314, 327
Milutinovic et al. (IT-99-37-AR73.2),
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
MNaghtens Case, (1843) 10 Cl. & Fin
200, 8 ER 718, 195, 333
Mpambara (ICTR-2001-65-I), Decision
(Requete de la Defens aux ns de la
mise en liberte de lAccuse), 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 Mugenzis 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 Mugiranezas
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), Decision
(Requete de la Defense aux ns de
la mise en liberte provisoire de
lAccuse), 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
Musabyimanas Motion to
Exclude Anonymous Prosecutorial
Witness Statements and to Review
the Decision on Conrmation 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
xxxii 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),
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 Defences Request
to have the Report and the
Testimony of Expert Witness Jean
Pierre Chretien 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 Prosecutors 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
Prosecutors 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,
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 Prosecutors 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 Prosecutors 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,
243245, 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
Conrming the Amended
Indictment, 12 February 1999, 374
TA B L E O F C A S E S xxxiii
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),
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
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,
383386, 533, 550
Niyitegeka (ICTR-96-14-T), Decision on
the Prosecutors 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
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), Appellants
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
Prosecutors Motion to Oppose the
Initial Appearance of Mirko Norac,
30 June 2004, 389
Norman (SCSL-03-08), 509510, 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
the Applications for a Stay of
Proceedings and Denial of Right to
Appeal, 4 November 2003, 85, 404
Appeal by the Truth and
Reconciliation Commission for
xxxiv 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 TRCs Request to Hold a
Public Hearing With Chief Samuel
Hinga Norman JP, 28 November
2003, 120
Norman (SCSL-03-08-PT, SCSL-03-011-
PT, 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
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
Winters Response to Motion to
Recuse her from Deliberating on
the Preliminary Motion on the
Recruitment of Child Soldiers, 14
May 2004, 516
the Motion to Recuse Judge Winter
from the Deliberation in the
Preliminary Motion on the
Recruitment of Child Soldiers, 28
May 2004, 418, 516
Decision on Preliminary Motion
Based on Lack of Jurisdiction
(Child Recruitment), 31 May 2004,
67, 93, 96, 285
Dissenting Opinion of Justice
Robertson, 31 May 2004, 82,
84, 285
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
Prosecutions Motion for Judicial
Notice and Admission of Evidence,
24 June 2004, 489, 490
Norman (SCSL-04-14-T), Sesay
Decision on Condential 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
TA B L E O F C A S E S xxxv
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 Prosecutions
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
2005, 81, 108, 524
North Sea Continental Shelf Cases, [1969]
ICJ Reports 4, 98
Nsabimana et al. (ICTR-98-42-T),
Decision on the Prosecutors
2002, 489, 491
Nsengiyumva (ICTR-96-12), 137
Nsengiyumva (ICTR-96-12-A),
Shahabuddeen, 3 June
1999, 80, 113
Nsengiyumva (ICTR-96-12-A), Joint
Separate and Concurring Opinion
of Judge Wang and Judge Nieto-
Navia, 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),
for Annulment of Proceedings,
Release and Return of Personal
Items and Documents, 25
September 1998, 377
Ntabakuze et al. (ICTR-97-34-I),
Requesting an Order for
Separate Trials, 30 September
1998, 366
Ntagerura et al. (ICTR-99-46-T),
Decision on Ntageruras 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
xxxvi 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 Ntahobalis 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 Prosecutors 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
Marinko Katava, 19 December
1997, 375
Ntuyahaga (ICTR-98-40-T), Decision on
the Prosecutors 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 La 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 ICTR-
98-42), 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),
2000, 462, 490
Transcript, 21 March 2002, 143,
403
2002, 40, 106, 491
Decision on the Application by
Arse`ne Shalom Ntahobali for
Review of the Registrars Decisions
Pertaining to the Assignment of an
TA B L E O F C A S E S xxxvii
Investigator, 13 November
2002, 527
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
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
Plavs ic (IT-00-39 and
IT-00-40/1), 565
Plavs ic (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 Prosecutors Request for the
Extension of the Suspects
Detention (Rule 40 bis (F) of the
Rules of Procedure and Evidence),
4 November 2002, 379
Republic of the Congo v. France, 157
xxxviii TA B L E O F C A S E S
In Re The Republic of Macedonia (IT-02-
55-MISC.6), Decision on the
Prosecutors 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 Prosecutors 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,
444445, 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
26 May 2003, 440
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 Rwamakubas Motion for
Severance, 12 December 2000, 370
Rwamakuba (ICTR-98-44-AR72.4),
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
31 May 2000, 110
Semanza (ICTR-97-20), Decision on
Judicial Notice and Presumptions
of Facts Pursuant to Rules 94
and 54, 3 November 2000,
489, 491
TA B L E O F C A S E S xxxix
Semanza (ICTR-97-20-A), Arret (Requete
en revision de la decision de la
Chambre dappel 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 Prosecutors Motion for Leave
to Call Rebuttal Evidence and the
Prosecutors 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-03-
06-PT, SCSL-03-07-PT, SCSL-03-
09-PT, SCSL-03-10-PT, SCSL-03-
13-PT), Decision and Order on
Prosecution Motions for Joinder,
27 January 2004, 369
Sesay (SCSL-04-15-AR15), Decision on
Defence Motion Seeking the
Disqualication of Justice
Robertson from the Appeals
Chamber, 13 March 2004, 417,
508, 516
Sesay (SCSL-04-15-PT), Amended
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
S
es elj (IT-03-67), 365, 395, 417, 529, 530

S
es elj (IT-03-67-PT), Decision on

Prosecutions Motion for Order
Appointing Counsel to Assist
Vojislav S
eselj with his Defence, 9

May 2003, 494, 529, 621
S
es elj (IT-03-67-PT), Decision on Motion

for Disqualication, 10 June 2003,
405, 418
S
es elj (IT-03-67-PT), Decision, 30

September 2003, 610, 611
S
es elj (IT-03-67-AR73.2), Decision on the

the Denial of a Request for a
Visit to an Accused in the
Detention Unit, 29 January
2004, 611
S
es elj (IT-03-67-AR72.1), Decision on the

xl 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 Prosecutors Requests
for the Assignment of a
Conrming Judge, 26 August
1998, 363
Sikirica et al. (IT-95-8-T), Decision on
Prosecutions 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
Pre-trial Motion by the
Prosecution Requesting the Trial
Chamber to take Judicial Notice of
the International Character of the
Conict 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
Conict 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
Prosecutors 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 Zarics and Miroslav Tadics
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 Simics 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
TA B L E O F C A S E S xli
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
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
372, 465, 557, 567, 568, 570, 573,
576, 578
Simic et al. (IT-95-9-T), Reasons for
Decision on Prosecutions Motion
to Use Telephone Interviews, 11
March 2003, 520
Simic et al. (IT-95-9-T), Judgment, 17
October 2003, 204, 313, 360
Sljivanc anin (IT-95-13/1-PT), Registrars
Decision, 9 July 2003, 246, 526
Sljivanc anin (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,
232236, 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
Prosecutions 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. 335-
B, 63, 65, 209, 218
Tadic , Dus ko (IT-94-1), 23, 24, 49, 53, 61,
67, 77, 80, 94, 99, 114, 124, 125,
128, 187, 197, 200, 211, 215, 228,
xlii TA B L E O F C A S E S
233236, 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 , Dus ko (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 Dusko
Tadic, 8 November 1994, 384, 619
Tadic , Dus ko (IT-94-1-T), Decision on
the Defence Motion on
Jurisdiction, 10 August 1995,
50, 192
Tadic , Dus ko (IT-94-1-T), Decision on
the Prosecutors Motion
Requesting Protective Measures for
Victims and Witnesses, 10 August
1995, 48, 79, 92, 117, 474, 503
Tadic , Dus ko (IT-94-1-AR72), Decision
on the Defence Motion for
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 , Dus ko (IT-94-1-AR72), Separate
Declaration of Judge J. Deschenes
on the Defence Motion for
Jurisdiction, 2 October 1995, 245,
432, 591
Opinion of Judge Abi-Saab on the
Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October
1995, 81, 233, 242
Opinion of Judge Li on the Defence
Motion for Interlocutory Appeal
on Jurisdiction, 2 October 1995, 3,
82, 83, 97, 620
Opinion of Judge Sidhwa on the
Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October
1995, 3, 63, 83, 620
Tadic , Dus ko (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, 475
Tadic , Dus ko (IT-94-1), Decision on the
Defence Motion on Hearsay, 5
August 1996, 479, 480
Tadic , Dus ko (IT-94-1-T), Separate
Opinion of Judge Stephen
on Prosecution Motion
for Production of Defence
Witness Statements, 27 November
1996, 398
Tadic , Dus ko (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 , Dus ko (IT-94-1-T), Sentencing
Judgment, 14 July 1997, 299, 569,
570, 571, 572, 575, 576, 577
Tadic , Dus ko (IT-94-1-A), Decision on
Appellants Motion for the
Extension of the Time-Limit and
Admission of Additional Evidence,
15 October 1998, 81, 87, 451, 483
Tadic , Dus ko (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,
TA B L E O F C A S E S xliii
311, 313, 440, 446, 460, 462,
464, 484, 494, 513, 514,
553, 580
Tadic , Dus ko (IT-94-1-A), Declaration of
Judge Nieto-Navia, 15 July 1999,
535, 536
Tadic , Dus ko (IT-94-1-A), Order
Remitting Sentencing to a Trial
Chamber, 10 September
1999, 448
Tadic , Dus ko (IT-94-1-T), Separate
Opinion of Judge Robinson, 11
November 1999, 562
Tadic , Dus ko (IT-94-1-A and IT-94-1-
Abis), Judgment in Sentencing
Appeals, 26 January 2000, 116, 281,
545, 551, 553, 556, 558, 561, 562,
564, 568, 569, 583, 607
Tadic , Dus ko (IT-94-1-AR77), Judgment
on Allegations of Contempt
Against Prior Counsel, Milan
Vujin, 31 January 2000, 87, 106,
114, 115, 449, 615
Tadic , Dus ko (IT-94-1-A-AR77),
Decision on the Application
for Leave to Appeal, 25
October 2000, 449
Tadic , Dus ko (IT-94-1-A-AR77), Appeal
Judgment on Allegations of
Contempt Against Prior Counsel,
Milan Vujin, 27 February 2001, 88,
102, 449
Tadic , Dus ko (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. Alstotter et al.
(Justice trial), (1948) 3 TWC 1, 6
LRTWC 1, 14 ILR 278, 501
United States of America v. Brandt et al.,
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.,
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
xliv 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
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
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 Prosecutors Request for Leave
to Amend the Indictment and on
Defence Urgent Motion for an
Order to Disclose Supporting
Material in Respect of the
Prosecutors 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
TA B L E O F C A S E S xlv
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, 261262
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, 186187
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
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
common article 3, 61, 77, 99,
265274, 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
Genocide, 1948
Hague Conventions
1899, 255, 259
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 xlvii
fourth Convention of 1907
article 2, 231
articles 46, 50, 52, and 56, 227
Regulations annexed to, 9, 255,
258260, 277, 280, 285
ICTR Statute. See Statute of the
Rwanda
ICTY Statute. See Statute of the
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
Lausanne, Treaty of (1923), 10
Lieber Code (1863), 98, 206, 231, 254
Lome Peace Agreement (1999), 3436,
37, 337
Malicious Damage Act 1861 (Sierra
Leone), 152
Nuremberg Charter. See Charter of the
International Military Tribunal
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 2233, 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
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
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
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
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, 289292
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
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 xlix
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
Tribunal for the former Yugoslavia
(ICTY Statute)
article 1, 130, 131, 132
article 2, 65, 93, 151, 240243, 249,
292, 294, 296, 345, 360, 371
article 2(a), 437
article 3, 32, 76, 9495, 151, 213,
215, 240, 255269, 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, 186189
article 5(e), 205
article 5(h), 77, 215
article 6, 139, 290
article 7, 139, 289, 328, 330
article 7(1), 183, 296297, 324, 362
article 7(2), 57, 465, 566
article 7(3), 101, 294, 362
article 7(4), 329, 465, 567
article 8, 131
article 9, 123
article 9(2), 58, 383
article 10, 127, 536
article 10(2), 377
article 10(3), 551
article 11(c), 607
article 12(2), 593
article 12(3), 599
article 13ter(2), 508
article 13quater, 597
article 13(1), 116
article 13(2)(d), 595
article 13(3), 598
article 14(1), 598
article 14(2), 599
article 14(3), 593, 594, 599
article 14(4), 594
article 14(5), 594, 599
article 14(7), 594
article 15, 75, 76, 85, 348
article 16(1), 600, 607
article 16(2), 600
article 16(3), 600
article 16(4), 600, 601
article 16(5), 600
article 17(1), 607
article 17(3), 599, 608
article 18, 348
article 18(2), 358
article 18(3), 592
article 18(3)(f), 358
article 18(4), 353
article 19, 348, 377
article 19(1), 466
article 19(2), 148, 364
article 20, 348, 410
article 20(1), 473
article 20(2), 419
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(3), 388
article 21, 96, 117, 369, 502, 515
article 21(1), 511
article 21(2), 514
article 21(3), 293
article 21(3)(a), 592
article 21(3)(f), 592
article 21(4)(a), 519
article 21(4)(b), 513
article 21(4)(c), 454, 521
article 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), 143144
article 2, 151, 187
article 2(e), 213
article 2(g), 212
article 2(h), 77, 215
article 3, 77, 93, 151, 268, 276
article 3(e), 211
article 3(g), 213
article 4, 151, 254, 282
article 5, 74, 119, 151
article 6, 139, 140142, 290
article 6(1), 362, 369
article 6(2), 465, 566
article 6(3), 294, 362
article 6(4), 329, 465, 567
article 7, 140
article 8(2), 123, 383
article 9, 127, 536
article 10, 337339
article 12(3), 598
article 12(4), 438, 597
article 13(2), 116, 142
article 14, 76, 85, 135, 348
article 14(1), 75, 76
article 14(2), 74, 75, 76, 119
article 15(3), 601
article 15(4), 142, 600
article 15(5), 142
article 16(1), 473
article 16(3), 599, 608
article 17, 96, 117, 502
article 17(1), 511
article 17(2), 514
article 17(3), 293
article 17(4)(a), 519, 592
article 17(4)(b), 513
article 17(4)(c), 454, 521
article 17(4)(d), 420, 523, 531
article 17(4)(e), 446, 468
article 17(4)(f), 358, 531, 592
article 17(4)(g), 532
article 19(1), 119, 546
article 19(2), 555
article 19(3), 551
article 20(1), 440
article 20(3), 119
article 21, 450
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 li
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, 4853, 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
lii 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
Versailles, Treaty of, 9, 226, 227, 509
Vienna Convention on the Law of
Treaties, 54, 7981, 100,
101, 571
Vienna Declaration and Plan of Action,
1943, 8
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 liii
ABBREVIATIONS
CSCE Conference for Security and Cooperation in Europe
GA General Assembly
ICC International Criminal Court
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ILC International Law Commission
ILR International Law Reports
IMT International Military Tribunal
LRTWC Law Reports of the Trials of the War Criminals
NATO North Atlantic Treaty Organisation
NGO non-governmental organisation
OSCE Organisation for Security and Cooperation in Europe
OTP OYce of the Prosecutor
RPE Rules of Procedure and Evidence
RUF Revolutionary United Front
SC Security Council
SCSL Special Court for Sierra Leone
SFOR Multinational Stabilisation Force
TWC Trials of the War Criminals
UNTAES United Nations Transitional Administration in Eastern Slavonia
liv
PART 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 rst 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
rst 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
AYrmation of the Principles of International Law Recognised by the Charter of the
Nuremberg Tribunal, GA Res. 95(I).
2
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)
3
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
UNTS 277, art. 6.
4
UN Doc. S/RES/807 (1993).
3
these unmanageable conicts in the Balkans, wrote Louise Arbour, who
served as the Tribunals 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 fteen
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 Councils 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 ICTYand 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 humani-
tarian law and concluded that an international human rights tribunal . . . to
try and sentence those accused should be established.
9
In June 2000, the
5
Louise Arbour, Crimes against Women under International Law, (2003) 21 Berkeley
Journal of International Law 196.
6
The Security Council subsequently modied the scheme to provide for separate prose-
cutors: UN Doc. S/RES/1503 (2003), para. 8. This is discussed at p. 601.
7
UN Doc. S/PV.3453.
8
Report of the Group of Experts for Cambodia established pursuant to General
Assembly Resolution 52/135, UN Doc. A/53/850, annex, para. 148.
9
Report of the International Commission of Inquiry on East Timor to the Secretary-
General, UN Doc. A/54/726-S/2000/59, annex, para. 153.
4 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
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 agree-
ment 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 agree-
ment 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 agree-
ment 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
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.
11
Accord dArusha pour la paix et la Reconciliation au Burundi, 28 August 2000, art. 6(11).
12
UN Doc. S/PV.5158 (2005).
13
Laura A. Dickinson, The Promise of Hybrid Courts, (2003) 97 American Journal of
International Law 295: Such courts are hybrid because both the institutional appa-
ratus 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: Max-
Planck-Institut fur Auslandisches 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,
C R E AT I O N O F T H E T R I B U N A L S 5
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-conict
15
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 signicantly 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 classied 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 rst
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 ve 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 ICTYand ICTR wrap up their work by 2010. But that is more
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 inter-
national and hybrid tribunals is made in the Secretary-Generals August 2004 Report:
The Rule of Law and Transitional Justice in Conict and Post-conict Societies, UN
Doc. S/2004/616, paras. 40, 45, 46.
14
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.
15
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.
16
UN Doc. A/RES/57/228 B (2003).
17
The Rule of Law and Transitional Justice in Conict and Post-conict Societies, Report
of the Secretary-General, UN Doc. S/2004/616, para. 43.
than fteen years since the ICTY was created, and compares rather strikingly
with the historical model of the Nuremberg Tribunal, whose activities had
been completed within fteen 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 t within a constantly expanding universe of
international criminal justice institutions, of which the centrepiece is the Inter-
national 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 ICCwas 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 specic assignments from the Security Council. In the
course of four years of negotiations, the architecture of the Court evolved some-
what. In its nal form, the relationship with the Security Council is far less
signicant 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 Councils permanent members have not ratied
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. Roling, 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 conict within a sovereign State, although the declaration of inde-
pendence by various constituents of Yugoslavia gave it an international
avour, to ensure that atrocities of which the principal victims were innocent
civilians did not go unpunished. Professor Theodor Meron, one of the
18
See: William A. Schabas, Introduction to the International Criminal Court, 2nd edn,
Cambridge: Cambridge University Press, 2004, pp. 8285.
19
UN Doc. S/RES/1593 (2005), para. 1.
20
B. V. A. Roling, 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.
21
France et al. v. Goring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, p. 218.
pre-eminent academic observers of the process, later to become President of
the ICTY, wrote that the ICTY was the rst truly international criminal
tribunal.
22
The ad hoc tribunals were conceived of and justied 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 conict, 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
gured in this rst experiment with international justice. The contrast with
the ad hoc tribunals is most striking. The Security Council Resolution estab-
lishing 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 inter-
national humanitarian law would contribute to the restoration and main-
tenance 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 specically 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
justies the engagement of the institution as a whole and more specically
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
Theodor Meron, War Crimes in Yugoslavia and the Development of International
Law, (1994) 88 American Journal of International Law 78, at p. 79.
23
Agreement for the Prosecution and Punishment of Major War Criminals of the Eur-
opean Axis, and Establishing the Charter of the International Military Tribunal (IMT),
(1951) 82 UNTS 279.
24
UN Doc. S/RES/827 (1993), preamble.
25
26
Statute of the Special Court for Sierra Leone, art. 1(1).
27
Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/24 (1993),
para. 91.
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 Punish-
ment.
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 conict developed in the mid-nineteenth century, the idea
that an international tribunal be established to prosecute breaches of huma-
nitarian law rst 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 ed 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
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. 2456.
29
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, GA Res. 39/46, annex, art. 5(2).
30
of the Secretary-General, UN Doc. S/2004/616.
31
Christopher Keith Hall, The First Proposal for a Permanent International Criminal
Court, (1998) 322 International Review of the Red Cross 57.
32
Report of the International Commission to Inquire into the Causes and Conduct of the
Balkan Wars, Washington: Carnegie Endowment for International Peace, 1914.
33
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.
34
Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of
Versailles), 1919 TS 4, art. 227.
35
Ibid., arts. 228230. 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?
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 Conven-
tion 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 September1 October 1946, it issued its
judgment convicting nineteen defendants of crimes against peace, war crimes
and crimes against humanity.
41
In the Pacic theatre, the Allies established the
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. 6061.
36
German War Trials, Report of Proceedings before the Supreme Court in Leipzig, London:
His Majestys 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.
37
[1920] UKTS 11, De Martens, Recueil general des traites, 99, 3e serie, 12, 1924, p. 720
(French version).
38
Treaty of Lausanne Between Principal Allied and Associated Powers and Turkey, (1923)
28 LNTS 11.
39
Draft Convention for the Establishment of a United Nations War Crimes Court,
UN War Crimes Commission, Doc. C.50(1), 30 September 1944.
40
(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.
41
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.
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 dening 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 Com-
mission 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
Frank M. Buscher, The US War Crimes Trial Program in Germany, 19461955, Westport,
CT: Greenwood Press, 1989.
43
(1951) 78 UNTS 277, art. 6.
44
Study by the International Law Commission of the Question of an International
Criminal Jurisdiction, GA Res. 216 B(III).
45
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).
46
GA Res. 897(IX) (1954).
47
GA Res. 44/89.
48
For Thatcher, see her television interviewof 1 September 1990: (1990) 61 British Yearbook
of International Law602; Marc Weller, When Saddamis Brought to Court . . . , The Times,
3 September 1990. For Bush, see: US Department of State Dispatch, 22 October 1990, vol. I
States Department of the Army.
49
Pentagon lawyers prepared a report doc-
umenting 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, Luxembourgs foreign minister and acting pre-
sident 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, Luxem-
bourgs 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
(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, Prose-
cuting Iraqi Crimes: Fullling 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.
49
Marc Weller, When Saddam is Brought to Court . . ., The Times, 3 September 1990.
50
Elaine Sciolino, US Names Figures it Wants Charged with War Crimes, New York Times,
17 December 1992, p. 1.
51
Lombre de Nuremberg, Le Monde, 17 April 1991.
52
Les Douze proposent que M. Saddam Hussein soit juge pour tentative de genocide,
Le Monde, 17 April 1991.
53
Yves Clarisse, SADDCEE, La Press Canadienne, 15 April 1991.
54
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. 1617.
55
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, Ostthuringer Zeitung, 3 October 1991.
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 Hu-
man 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 conict erupted when Yugoslavia began to disin-
tegrate. 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 post-
Cold War environment. In 1991, rst 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
conict. 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
Alain Pellet, The International Responsibility of Saddam Hussein, 16 April 1991,
reproduced in The Path to The Hague, pp. 1823.
57
Commission nationale consultative des droits de lhomme, Avis concernant la creation
dune Cour penale internationale, 4 July 1991, English translation in The Path to The
Hague, pp. 3335.
58
English translation in The Path to The Hague, pp. 4345.
59
Norman Stone, Dubrovnik: The Case for a War Crime Trial Why Not Restore the
Nuremberg Tribunal?, Guardian, 13 November 1991.
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 dOrsai, Jean-Pierre Puissochet, found Badinters 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 Pre-
sident 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 non-
governmental 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
For Badinters personal account, see The Path to The Hague, pp. 8687.
61
Pierre Hazen, La justice face a` la guerre, De Nuremberg a` La Haye, Paris: Stock, 2000,
at p. 37.
62
Ibid., p. 38.
63
Ibid., p. 39.
64
Report of Helsinki Watch, part of Human Rights Watch, War Crimes in Bosnia-
Herzegovina, August 1992, p. 17.
65
David Gow, Germany to Call for War Crimes Trials, Guardian, 20 August 1992, p. 6.
66
Specic Decisions by the London Conference, doc. LC/C (Final), 27 August 1992, para.
8, reprinted in Material Relating to the London Conference (August 2627, 1992) and
the Crisis in the Former Yugoslavia, US Department of State Dispatch Supplement, vol. 3,
No. 7, 15 September 1992.
67
UN Doc. A/47/PV.8, p. 61.
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 CSCEs 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 Turk, and then Corell and Turk 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 CSCEs Committee of Senior OYcials considered the report at its
meeting in Prague, on 56 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 latters
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 rene their proposals on making the
68
The Path to The Hague, p. 65.
69
Proposal for an International War Crimes Tribunal for the Former Yugoslavia by Rappor-
teurs (Corell Turk Thune) under the CSCE Moscow Human Rights Dimension to
Bosnia Herzegovina and Croatia, 9 February 1993, p. 15.
70
Ibid., p. 16.
71
Virginia Morris and Michael P. Scharf, An Insiders Guide to the International Criminal
Tribunal for the Former Yugoslavia, vol. I, Irvington-on-Hudson, NY: Transnational
Publishers, 1995, p. 27.
72
17-CSO/Journal No. 2, Annex 3, p. 7.
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 specic
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 rst 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 interna-
tional 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
See the account of these developments prepared by Hans Corell in The Path to The
Hague, pp. 7481. Also: Conference for Security and Co-operation in Europe, Third
Council Meeting, Stockholm, 1415 December 1992, Summary of Conclusions Decision
on Peaceful Settlement of Disputes: 1. Regional Issues: Former Yugoslavia, para. 14.
74
UN Doc. S/RES/764 (1992).
75
James OBrien, The International Tribunal for Violations of International Humanitar-
ian Law in the Former Yugoslavia, (1993) 87 American Journal of International Law 639,
at p. 640.
76
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 Insiders Guide to the ICTY, vol. I, p. 23.
77
UN Doc. S/RES/780 (1992).
78
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.
However, the United Kingdom, France and China watered down the resolu-
tion 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 establish-
ment 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 ve-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 Commis-
sion would not interfere with the ongoing peace negotiations.
84
The Com-
mission was frustrated by the lack of funds,
85
although Bassiouni was
eventually able to obtain support from outside the United Nations system.
86
79
History of the United Nations War Crimes Commission and the Development of the Laws of
War, London: His Majestys Stationery OYce, 1948.
80
Morris and Scharf, An Insiders Guide to the ICTY, vol. I, pp. 2526.
81
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. 6465.
82
Daphna Shraga and Ralph Zacklin, The International Criminal Tribunal for the Former
Yugoslavia, (1994) 5 European Journal of International Law 1, at p. 2.
83
See: Report of the Secretary-General Pursuant to Paragraph 2 of Security Council
Resolution 808 (1993), UN Doc. S/25704 (1993).
84
M. Cherif Bassiouni, Combating Impunity for International Crimes, (2000) 71
Colorado Law Review 409, at pp. 417418. 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. 3942; M. Cherif
Bassiouni, The United Nations Commission of Experts Established Pursuant to Secur-
ity Council Resolution 780 (1992), (1994) 88 American Journal of International Law 784.
85
Paul Jenkins and Ed Harriman, War Crimes Team Muddle Along as Killing Continues,
Guardian, 3 February 1993, p. 9.
86
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.
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 sug-
gested international prosecution was in the wind. In mid-August, the Commis-
sion on Human Rights held its rst ever special session in order to consider the
situation in the former Yugoslavia.
88
The Commission [c]ondemn[ed] abso-
lutely the concept and practice of ethnic cleansing, declared that perpe-
trators 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 Nurem-
berg-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 Punish-
ment 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 specically 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 indivi-
dually 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
Interim Report of the Commission of Experts Established Pursuant to Security Council
Resolution 780 (1992), UN Doc. S/25272, 10 February 1993, para. 74.
88
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. 265268.
89
The Situation of Human Rights in the Territory of the Former Yugoslavia, CHR Res.
1992/S-1/1, para. 2.
90
UN Doc. E/CN.4/1992/S-1/5.
91
The Situation of Human Rights in the Territory of the former Yugoslavia, CHR Res.
1992/S-2/1, para. 10.
92
UN Doc. A/47/666-S/24809 (1992), p. 39.
93
UN Doc. A/RES/47/80, 16 December 1992, para. 4.
94
UN Doc. A/RES/47/121, 18 December 1992, para. 10. Also: UN Doc. A/RES/47/147, 18
December 1992.
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 conict.
We know, moreover, which forces committed those crimes, and under
whose command they operated. And we know, nally, who the political
leaders are and to whom those military commanders were and still are
responsible.
95
These included the Bosnian Serb leaders, Karadzic and
Mladic, who would gure in the early indictments of the ICTY,
96
as well as
Serbian President Slobodan Milosevic, who would subsequently travel to the
United States for the Dayton negotiations. Milosevic 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 rst
policy initiatives since being appointed Secretary of State, Warren Christo-
pher, who was sworn in as Eagleburgers 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 conrma-
tion hearings on 13 January 1993, Christopher had said the Clinton admin-
istration 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 conict. It drew upon material collected by
United States intelligence agencies. According to Simon Tisdall and Chris
95
17 December 1992, p. 1.
96
Karadzic et al. (IT-95-5-I), Indictment, 24 July 1995.
97
Milos evic (IT-01-51-I), Indictment, 22 November 2001.
98
17 December 1992, p. 1.
99
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.
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 Milosevic, and the Serbian leader in Bosnia, Radovan
Karadzic, 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 specic 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
fth, the Peoples Republic of China, was more reserved, although it did vote
in favour. Jean-Bernard Merimee, 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, nally, on the
Security Councils 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
Simon Tisdall and Chris Stephen, US is Set on Prosecuting Yugoslav War Criminals,
Guardian, 28 January 1993, p. 8.
101
Ibid.
102
See Lettre du Ministre dE
tat francais, M. Dumas, au Procureur general, M. Truche,

concernant la constitution dun Comite de juristes devant se pencher sur les questions
soulevees par la creation dun tribunal penal international, 16 January 1993, English
translation in The Path to The Hague, p. 73.
103
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.
104
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.
United Nations to bring justice and deter further atrocities in the former
Yugoslavia.
105
According to Professor Michael Scharf:
From the beginning, the Security Councils motives in creating the tribu-
nal were questionable. During the negotiations to establish the court . . . it
became clear that several of the Security Councils 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. Americas 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 limita-
tion 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
Slovenia
116
and the United
105
UN Doc. S/PV.3175 (22 February 1993).
106
Michael Scharf, Indicted For War Crimes, Then What?, Washington Post, 3 October
1999, p. B01.
107
Nordwest Zeitung, 15 February 1993.
108
It was circulated to the Security Council in summary form: UN Doc. S/25307. The entire
document is reproduced in Morris and Scharf, An Insiders Guide to the ICTY, vol. II,
pp. 211310.
109
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).
110
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).
111
Letter dated 13 April 1993 from the Permanent Representative of Canada to the United
112
UN Doc. A/47/920-S/25512 (1993).
113
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).
114
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).
115
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).
116
States,
117
as well as contributions to the debate from the International Com-
mittee 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 modication, 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 gure 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 Pre-
sident 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
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).
118
A detailed comparison of the various drafts is provided in Morris and Scharf, An
Insiders Guide to the ICTY, vol. I, pp. 363462.
119
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
tion 808 (1993), UN Doc. S/25704 (1993).
120
UN Doc. S/RES/827 (1993).
121
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.
122
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. 2334, at p. 23.
123
Jochen A. Frowein, Chapter VII Action with Respect to Threats to the Peace, Breaches of
the Peace and Acts of Aggression (Articles 3943), in Bruno Simma et al., eds., The Charter
of the United Nations, Oxford: Oxford University Press, 1994, pp. 605639, at p. 626.
124
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).
125
Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign AVairs, Summer
1993, p. 122.
rst judges were solicited,
126
and elections were held by the General Assembly
in November 1993. The judges met for the rst 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 identied 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 Gold-
stone, a distinguished South African judge who had recently been appointed
to that countrys 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 rst trial had actually begun, the
Appeals Chamber of the ICTY issued what is surely its most signicant ruling.
The rst accused to be taken into custody, Dusko 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 conicts 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 conicts 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 ana-
chronistic 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
UN Doc. S/RES/857 (1993).
127
UN Doc. S/RES/877 (1993).
128
UN Doc. S/RES/936 (1994).
129
The rst 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.
130
Tadic (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995.
The Tadic trial began on 7 May 1996, and nished about a year later. The
defendant was an insignicant personality in the conict. The Tribunal simply
did not have any high-prole 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 condential 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 conicts, 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, rst 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 Comple-
tion 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 Milosevic, while continuing to put inter-
national pressure to bear in the hopes of securing custody over its three most
wanted men, Radovan Karadzic, 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 conict between two ethnic groups, the majority Hutu who had
governed the country since independence, and the minority Tutsi, who
131
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 220.
132
On the completion strategy, see below at pp. 4043.
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
genocidaires. 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 rst weeks of the
Rwandan genocide the Security Council used language indicating its new
focus on individual criminal accountability. It initially condemned the vio-
lence in a general way, calling upon all concerned to respect fully interna-
tional 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 conrmed the Councils request to the
Secretary-General to present a report as soon as possible on the investigation
133
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).
134
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 110.
135
UN Doc. S/RES/912 (21 April 1994), para. 5.
136
Statement by the President of the Security Council, UN Doc. S/PRST/1994/21.
137
See also the remarks by the Spanish representative, Ya nez-Barnuevo: UN Doc. S/PV.3377
(16 May 1994).
of serious violations of international humanitarian law committed during
the conict.
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 nally 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-nding 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 Co te dIvoire with a distinguished human rights prole,
visited Rwanda in June 1994, accompanied by two other United Nations
human rights experts, Bacre Waly Ndiaye and Nigel Rodley, and conrmed
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 denition 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 agrant violations of international humanitarian law, including acts of
138
UN Doc. S/RES/918 (1994), para. 18.
139
UN Doc. S/PV.3377 (16 May 1994).
140
141
UN Doc. S/PV.3388 and Corr.1 (8 June 1994).
142
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.
143
The Situation of Human Rights in Rwanda, A/49/508, S/1994/1157 (1994).
144
See above at pp. 1618.
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 specically to
the recently established criminal tribunal for the former Yugoslavia. The
Commission, composed of the former president of Togos Supreme Court,
Atsu-KoY Amega, the Attorney General of Guinea, Habi Dieng, and Salifu
Fomba, a Malian member of the United Nations International Law Commis-
sion, 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 rst 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
governments 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 Rwandas 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
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.
146
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.
147
Raymond Bonner, Inadequate UN EVort Seen Against Killers in Rwanda, New York
Times, 4 September 1994, p. 14.
148
Steven Greenhouse, US, Having Won Changes, Is Set to Sign Law of the Sea, New York
Times, 1 July 1994, p. 1.
149
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.
150
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.
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 jurisdic-
tion 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 ICTYs 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 ICTYa year and a half earlier, raised
concerns.
156
The Yugoslav wars had a clear international dimension, whereas
151
UN Doc. S/PV.3453, p. 14 (1994).
152
Preliminary Report of the Independent Commission of Experts established in acc-
ordance with Security Council Resolution 935 (1994), UN Doc. S/1994/1125 (1994),
para. 149.
153
Raymond Bonner, UN Commission Recommends Rwanda Genocide Tribunal, New
York Times, 29 September 1994, p. 13.
154
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 conicts, 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.
155
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.
156
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 nal 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
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.
158
D. Shraga and R. Zacklin, The International Criminal Tribunal for Rwanda, (1996) 7
European Journal of International Law 501, at p. 504.
159
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.
160
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.
161
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 nds diYcult to accept. UN
Doc. S/PV.3453, p. 11 (1994).
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 agrant violations of inter-
national 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. Specically, the war crimes provisions reect the fact that
the Rwandan genocide took place within the context of a purely internal
armed conict, and there are also minor diVerences in the denition of
crimes against humanity.
The rst 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 nd
appellate judges, because the Statute simply added these to the responsibilities
of the corresponding institutions at the ICTY. The Tribunal issued its rst
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 devel-
opment 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, ring 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
tion 955 (1994), UN Doc. S/1995/134.
163
Navanethem Pillay, The Rwanda Tribunal and its Relationship to National Trials in
Rwanda, (1998) 13 American University International Law Review 1469.
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 institutions 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 reected this. It suVered from the isolation of Arusha, which ham-
pered 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 funda-
mental 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 denitively to the agenda of the General Assembly. Respon-
sibility was assigned to the International Law Commission, a United Nations
expert body with authority over the codication and progressive development
of international law. The Commissions interim reports, issued in the early
1990s, no doubt inuenced the drafters of the ad hoc tribunal statutes. The
nal version of the Commissions 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 Commissions 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
modied from the original conception of the International Law Commission.
Many of the changes were of a highly technical nature. The denitions of
crimes were presented in great detail, in comparison with the relatively laconic
provisions of the ad hoc tribunal statutes. To some extent, they reected
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. 538541.
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 Inter-
national 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 ratications or accessions. But the Statute specied
that it could only apply to acts committed subsequent to its entry into force.
The rapid pace of ratication meant that a growing number of countries
facing the kinds of conicts and tensions likely to attract international crim-
inal 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 gen-
eration 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 ICCs 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-conict 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 specic 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-conict 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: Its All
About the Security Council, (2004) 15 European Journal of International Law 701.
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 signicant international
involvement. Years of frustrating negotiations ensued as the United Nations
struggled to establish a post-conict justice institution in Cambodia.
In early 2000, an international fact-nding 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 mem-
bers 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 humanitar-
ian 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
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/53/850-
S/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.
167
Report of the Group of Experts for Cambodia established pursuant to General Assem-
bly 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
168
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.
169
Ibid., para. 147.
170
Report of the International Commission of Inquiry on East Timor to the Secretary-
General, UN Doc. A/54/726, S/2000/59, para. 153. See: Chandra Lekha Sriram, Revolu-
tions in Accountability: New Approaches to Past Abuses, (2003) 19 American University
International Law Review 301, at pp. 408409.
Inter-American Court of Human Rights. Again, the Secretary-General
stopped short of endorsing a call for a new international tribunal, conning
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 conict 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, nowknown 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 ghting in Sierra Leone for a period of a
few weeks in May 2000, well before the Truth and Reconciliation Commission
171
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.
172
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.
173
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.
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
Leones 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 conicts.
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 conict. 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 Revolu-
tionary 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
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.
175
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.
176
Ibid.
177
Ibid.
Nowhere did President Kabbah attempt to clarify whether the Court was to
be conned 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 Kabbahs 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 Resolutions 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 specic details concerning jurisdiction and related matters,
although it did not speak specically 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 agged the signicance 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
UN Doc. S/RES/1315 (2000), preamble, para. 5.
179
Ibid., preamble, para. 7.
180
Ibid., preamble, para. 4. Creation of a Truth and Reconciliation Commission was
projected in the Lome Agreement. Enabling legislation was enacted by Sierra Leones
Parliament in February 2000, although the Commission did not become operational
until July 2002.
181
Ibid., operative paragraph 3.
for the special court. It was accompanied by a lengthy report that discussed
the relevant issues in detail. The Secretary-General explained that the pro-
posed 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-Secretary-
General 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-Generals Report observed that in negotiations about the
draft statute of the special court, the Government of Sierra Leone had con-
curred 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 signicant 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-Generals report did not refer to the
182
Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, UN Doc. S/2000/915, para. 9.
183
Celina Schocken, The Special Court for Sierra Leone: Overview and Recommendations,
(2002) 20 Berkeley Journal of International Law 436, at p. 443.
184
185
Ibid., para. 24.
experience of the two existing ad hoc tribunals as a justication for some of its
proposals, the conguration of the court was clearly inuenced 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 insignicant participants in
the conict, 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 specic 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 signicant 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
Ibid., para. 29.
187
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.
188
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.
189
Letter dated 12 July 2001 from the President of the Security Council addressed to the
Secretary-General, UN Doc. S/2001/693, p. 2.
was reached between the United Nations, represented by its Assistant Secre-
tary-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 notied 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
ratication 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 ratication by Act
of Parliament was a requirement. On 11 April 2002, Sierra Leones 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 ICTYand 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
beneted from much of the acquired experience in The Hague and Arusha,
including a staV of whom many had worked for the other tribunals. Indict-
ments 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
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.
191
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.
192
Special Court Agreement (Ratication) Act 2002, Supplement to the Sierra Leone
Gazette vol. CXXX. No. II, 7 March 2002.
193
Kallon et al. (SCSL-04-14, 15 and 16-AR72(E)), Decision on Constitutionality and Lack
of Jurisdiction, 13 March 2004, para. 62.
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
nish 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-Generals
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 denition 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 justied their
creation in the rst 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 under-
stood 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-Generals 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
tion 808 (1993), UN Doc. S/25704 (1993), para. 28.
195
UN Doc. S/RES/827 (1993), para. 2.
196
UN Doc. S/RES/955 (1994), para. 1.
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 nal 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 rst annual
report of the Court makes reference to the Courts third and nal 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 rst 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 ve-member expert panel, the judges presented a report to the Secretary-
General 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 full its mission before 2016. The projection did take
appeals into account.
201
The judges said that if a number of modications
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 conclu-
sion 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 investiga-
tions by the end of 2004, complete all trials at rst 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
Letter dated 12 January 2001 from the Secretary-General addressed to the President of
the Security Council, UN Doc. S/2001/40, para. 12.
199
First Annual Report of the SCSL, p. 31.
200
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
201
Seventh Annual Report of the ICTY, UN Doc. A/55/273-S/2000/777, annex, para. 336.
202
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.
203
204
UN Doc. S/2002/678, p. 5.
cases from the ICTY to national courts.
205
The Security Council conrmed 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 estab-
lishment 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 rst
draft of the ICTRs Completion Strategy was presented to United Nations
headquarters in July 2003.
215
205
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.
206
UN Doc. S/PRST/2002/21. Also: UN Doc. S/RES/1503 (2004), preamble.
207
ICTY RPE, Rule 11bis. They were two months behind the ICTR, which had made a
similar amendment at its plenary in July 2002.
208
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.
209
Tenth Annual Report of the ICTY, UNDoc. A/58/297-S/2003/829, annex, paras. 6, 14, 347.
210
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 Serbias New Court for the Prosecution of War
Crimes, (2004) 22 Berkeley Journal of International Law 165.
211
UN Doc. S/RES/1431 (2002).
212
UN Doc. A/RES/57/289 (2002).
213
UN Doc. A/58/269, para. 3.
214
Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, paras. 22, 23.
215
Eighth Annual Report of the ICTR, UN Doc. A/58/140-S/2003/707, annex, para. 2.
Pressure on the tribunals to nish 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 interfer-
ence 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 rst 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 specically 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 conrming 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
Sean D. Murphy, Contemporary Practice of the United States Relating to International
217
Ibid.
218
Gregory P. Lombardi, Legitimacy and the Expanding Power of the ICTY, (2003) 37 New
England Law Review 887, at pp. 895896.
219
Milos evic (IT-02-54-AR73.4), Dissenting Opinion of Judge Hunt, 30 September 2003,
para. 22.
220
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.
221
UN Doc. S/RES/1534 (2004).
Legacy of the tribunals
The judgments at Nuremberg and Tokyo and the various national war crimes
trials associated with them provided the rst 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 Eich-
mann,
222
Barbie
223
and 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 denitions 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, justications
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 signicant 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 identied 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 inuential 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
A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem); A.-G. Israel v.
Eichmann, (1968) 36 ILR 277 (Israel Supreme Court).
223
Federation nationale des de porte s et internes resistants et patriotes et al. v. Barbie, (1984)
78 ILR 125.
224
R v. Finta, [1994] 1 SCR 701.
225
This is discussed in Robert Cryer, Prosecuting International Crimes, Selectivity and the
International Criminal Law Regime, Cambridge: Cambridge University Press, 2005, at
pp. 169170.
applying the Alien Tort Claims Act
226
and the Torture Victims Protection
Act,
227
as well as in immigration litigation.
228
Canadian courts have con-
sidered 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 law
230
and state immunities.
231
In Mugesera, the Supreme Court of
Canada relied upon rulings of the ICTR in dening 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
ndings 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 Africas Constitutional Court has referred to ICTY cases with respect
to the scope of war crimes.
236
In Australia, ICTR precedents have been cited
226
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).
227
Ford v. Garcia, 289 F.3d 932 (11th Cir., 2002); Doe v. Qi, 349 F.Supp.2d 1258 (ND CA,
2004).
228
Tagaga v. INS, 228 F.3d 1030 (9th Cir., 2000).
229
R v. Campbell, [2004] CarswellOnt 2170 (Ont. SCJ).
230
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).
231
Bouzari v. Iran, [2002] CarswellOnt 1469 (Ont. SCJ).
232
Mugesera v. Canada (MCI), 2005 SCC 40, paras. 8485, referring to Akayesu (ICTR-96-
4-T), Judgment, 2 September 1998 and Nahimana et al. (ICTR-99-52-T), Judgment and
Sentence, 3 December 2003.
233
Ibid., para. 126.
234
Ibid., para. 144, citing Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 287292 and
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 460469.
235
Ibid., para. 174.
236
State v. Wouter Basson, [2004] CCT 30/03.
on the importance of international law for purposes of statutory interpreta-
tion
237
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 immunities
240
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 deni-
tions of rape developed in ICTY jurisprudence.
243
237
Re Colonel Aird; ex parte Alpert, [2004] HCA 44.
238
Nulyarimma v. Thompson, (1999) 96 FCR 153.
239
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.
240
Jones v. Saudi Arabia, [2004] EWCA Civ 1394.
241
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.
242
Al-Adsani v. United Kingdom (App. No. 35763/97), Judgment, 21 November 2001,
[2002] 34 EHRR 11, para. 30, citing Furundzija (IT-95-17/1-T), Judgment, 10 December
1998, paras. 144147, 151, 153154, 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.
243
MC v. Bulgaria (App. No. 39272/98), Judgment, 4 December 2003, paras. 102107,
citing and implicitly criticising Furundzija (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, 457460 and Kunarac et al. (IT-96-23/1-A), Judgment,
12 June 2002, paras. 128129, 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 Tri-
bunal 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 latters 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 chal-
lenges 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.
47
pejorative references to victors justice
2
and even racism
3
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 non-
existent 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 pro-
nounce itself on how this was to be done. The Report of the Secretary-
General, 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
E.g., Tadic (IT-94-1-T), Decision on the Prosecutors Motion Requesting Protective
Measures for Victims and Witnesses, 10 August 1995, para. 21. Also: Richard
H. Minear, Victors 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. 130, at p. 4.
3
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.
4
E.g., David Irving, Nuremberg, The Last Battle, London: Focal Point Publications, 1996.
5
tion 808 (1993), UN Doc. S/25704 (1993), para. 12.
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 consider-
able time and, [e]ven then, there could be no guarantee that ratications 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 conrms. 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 resolu-
tion 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 main-
tenance 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 purport-
ing 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 rst defendant, Dusko Tadic, in a motion led on 23 June
1995.
10
Tadics 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
See UN Doc. A/RES/47/121, para. 10.
7
Ibid., para. 20.
8
Ibid., para. 21.
9
Ibid., paras. 2829.
10
There was also some academic support. See: Julio Barboza, International Criminal Law,
(1999) 278 Recueil des Cours 9, at p. 128; Fa za Patel King, Sensible Scrutiny: The
Yugoslav Tribunals Development of Limits on the Security Councils 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.
T H E L E G I T I M A C Y A N D L E G A L I T Y O F T H E T R I B U N A L S 49
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 ICTY
13
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 prohib-
ited 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
Tribunals creation by reasoning in this way, as some commentators urged.
17
But the Appeals Chamber found that it had jurisdiction to entertain the
11
Tadic (IT-94-1-T), Decision on the Defence Motion on Jurisdiction, 10 August 1995.
12
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-Francois
Marchi, LaVaire Dusko Tadic devant le Tribunal. Remarques sur le premier contro le de
la legalite dune resolution du Conseil de securite, (1996) 1 Lobservateur 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 decision de la Chambre dappel du Tribunal Penal International
pour lex-Yougoslavie: Tadic (Competence), (1996) 100 Revue generale de droit interna-
tional 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.
13
E.g., Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001.
14
Kanyabashi (ICTR-96-15-T), Decision on the Defence Motion on Jurisdiction, 18 June
1997, para. 27.
15
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, 192193, 196, 174175.
16
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.
17
James C. OBrien, The International Tribunal for Violations of International Humani-
tarian Law in the Former Yugoslavia, (1993) 87 American Journal of International Law
639, at p. 643.
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 competence de
la competence 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 Councils 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 Councils powers and authority are
conditioned by the terms of the Charter.
22
As a body, the Council does not have unlimited powers, and any justica-
tion 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 conict in the former Yugoslavia t clearly within these terms. Even
were the conict solely internal in nature, past practice of the Security Council
conrmed that this would still fall inside the scope of Chapter VII of the
18
Jurisdiction, 2 October 1995, para. 18.
19
Ibid., para. 20.
20
Kallon et al. (SCSL-04-15-AR72(E)), Decision on Constitutionality and Lack of Juris-
diction, 13 March 2004, para. 34.
21
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.
22
23
Charter of the United Nations, art. 39.
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 specic 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 con-
clusions 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 con-
sideration 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 conict. 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 Councils assessment on this, it took
judicial notice of the fact that the conict 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 destabilisa-
tion 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 conict in Rwanda might eventually spread to some
or all of these neighbouring regions.
28
The ruling was never appealed.
29
24
25
Ibid., paras. 3536.
26
Ibid., para. 39.
27
Kanyabashi (ICTR-96-15-T), Decision on Jurisdiction, 18 June 1997, para. 20.
28
Ibid., para. 21.
29
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.
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 Cham-
ber 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 Councils 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 unwa-
vering.
33
Further conrmation 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 pur-
suant to its powers under Chapter VII. The Councils authority was never
questioned during the drafting of the Rome Statute, in which most States
participated, something that conrms 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 tribu-
nals 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
Kanyabashi (ICTR-96-15-T), Decision on Jurisdiction, 18 June 1997, para. 14.
32
Ibid., para. 15.
33
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.
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
ICTYand 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 prosecu-
tion of the major Nazi war criminals. Several other States subsequently ratied
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 justication 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
Ibid.
36
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 41.
37
International Law 172, at p. 216.
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 reecting 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 ICTYand
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 specic 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 Resolu-
tion 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 con-
rmed that the Security Council is authorised by the Charter of the United
Nations to delegate authority for creating a tribunal or court to the Secretary-
General,
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
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.
39
40
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.
41
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.
42
Ibid., para. 17.
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 propo-
sal 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 nal version was agreed to by the Secretary-
General and the Security Council, the latter adopted a resolution in which it
[e]ncourag[ed] the Government of Sierra Leone, together with the Secretary-
General, 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 nds 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. Specically, the problem
43
Ibid., para. 24. Note that the Agreement Between the United Nations and the Govern-
ment 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 manage-
ment 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.
44
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.
45
UN Doc. S/RES/1346 (2001), para. 14.
46
Madeline H. Morris, High Crimes and Misconceptions: The ICC and Non-Party States,
(2001) 64 Law and Contemporary Problems 13.
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 ICTYand ICTR, some-
thing that is conrmed by specic 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 jurisdic-
tion 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 estab-
lished to full 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 institu-
tion was pursuant to a national referendum that would authorise a constitu-
tional 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
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 14 February
2002, para. 61.
48
ICTY Statute, art. 7(2); ICTR Statute, art. 6(2).
49
50
of Jurisdiction, 13 March 2004, para. 49. Also, Special Court Agreement, 2002, Ratica-
tion Act 2002, Supplement to the Sierra Leone Gazette vol. CXXX, No. II, dated 7 March
2002, s. 11(2).
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 estab-
lished 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 treaty-
based 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 exer-
cised 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 specic request from the tribunals, although it has
periodically issued resolutions of a general nature calling upon States to
51
Blas kic (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.
52
53
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 specic
purpose of requesting the surrender of an accused from outside the jurisdiction of the
Court.
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
dees 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 ow 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 Taylors 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
public international law, rather than a stubborn refusal of States in the sub-
region 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 ICTYand 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 ICTYand 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 interna-
tional 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 signicant
participation. The Security Council can also, presumably, by resolution,
intervene to inuence 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
Ibid., para. 38.
56
Ibid.
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 com-
mitted.
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 prosecu-
tion, 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
provisionwas added to the International Covenant on Civil and Political Rights
in acknowledgement of the principles of the Nuremberg judgment.
60
Addres-
sing this issue, in his report on the establishment of the ICTY, the Secretary-
General 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 conict did not adhere to a specic 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-Generals 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 perpe-
trator 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 rst time
criminalizes common article 3 of the four Geneva Conventions.
63
57
This is discussed below at pp. 132138.
58
GA Res. 217 A (III), UN Doc. A/810, art. 11(2).
59
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 15(2).
60
Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd
rev. edn, Kehl: NP Engel, 2005, p. 368.
61
tion 808 (1993), UN Doc. S/25704 (1993), para. 34.
62
63
UN Doc. S/1995/134, paras. 1112.
Slightly more than a decade later, a United Nations Commission of Inquiry
referred to the Secretary-Generals 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 conict 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 prose-
cution 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 aggres-
sive war a crime at the time the alleged criminal acts were committed, that
no statute had dened aggressive war, that no penalty had been xed
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 tribunals 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
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.
65
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.
66
[i]n the rst 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 deance 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 prin-
ciple, 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 specic provi-
sion. 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
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 Interna-
tional 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.
68
SW v. United Kingdom, Series A, No. 335-B, paras. 3536; CR v. United Kingdom, Series
A, No. 335-B, paras. 3334; Streletz, Kessler & Krenz v. Germany, [2001] ECHR 230, 22
March 2001, para. 49.
69
Tadic (IT-94-1-AR72), Separate Opinion of Judge Sidhwa on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 72.
70
Hadzihasanovic et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging
Jurisdiction with respect to Command Responsibility, 16 July 2003, para. 34.
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 ratication of the treaties from which they were drawn, author-
itative resolutions of the United Nations General Assembly, and rulings of
the International Court of Justice. The same could not be said of the subject-
matter provisions in the ICTR and SCSL statutes, which were more innova-
tive. In the case of the ICTY, despite the relative sanctity of the texts
themselves, from the point where the Appeals Chamber ruled that viola-
tions 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 persecu-
tion and to other inhumane acts in the denition 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 incon-
sistent with customary international law.
73
In Krstic , an ICTY Trial Chamber
took note of evolving interpretations of the denition of genocide, but
declined to follow them because despite recent developments, customary
international law limits the denition 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 denition
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 clarication as to the elements of a particular crime; nor
does it prevent a court from relying on previous decisions which reect an
interpretation as to the meaning to be ascribed to particular ingredients of a
71
Gagnon and Vallie`res v. The Queen, [1971] CA Quebec 454.
72
73
E.g., Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 47.
74
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 580; conrmed by Krstic (IT-98-33-
A), Judgment, 19 April 2004, para. 25. See also: Jelisic (IT-95-10-T), Judgment, 14
December 1999, para. 61.
75
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 184.
crime.
76
The case law of the European Court of Human Rights allows for
the gradual clarication 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 reect 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 con-
templated by the criminal justice provisions of the Conventions and is not
referred to in the ICTY Statute.
79
The ICTR has regularly conrmed that
serious violations of common article 3 of the four Geneva Conventions of
1949, and of Additional Protocol II, which are codied 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 fteen 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
denitions 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
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 127.
77
Hadzihasanovic 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.
3536. There is also a companion case: CR v. United Kingdom, Series A, No. 335-B,
paras. 3334.
78
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 112.
79
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 298, 301, 306.
80
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-04-16-
PT), Written Reasons for the Trial Chambers 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, para. 33.
81
Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of
Jurisdiction (Child Recruitment), 31 May 2004.
82
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.
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-interna-
tional armed conict, despite exclusion of the concept from Additional Pro-
tocol II.
84
The Appeals Chamber acknowledged that it is incorrect to assume
that, under customary international law, all the rules applicable to an inter-
national armed conict automatically apply to an internal armed conict,
85
but conrmed 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 sugges-
tion 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 Robert-
son, 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
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 194220.
84
Hadzihasanovic et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12
November 2002.
85
Jurisdiction with Respect to Command Responsibility, 16 July 2003, para. 12.
86
tion 955 (1994), UN Doc. S/1995/134, para. 12.
87
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 20. Also: Vasiljevic (IT-
98-32-T), Judgment, 29 November 2002, paras. 197199.
88
89
Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May
2004, para. 47.
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 denitions 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 what-
ever the Statute directs or permits or empowers it to do unless such provi-
sions are void as being in conict with a peremptory norm of general
international law.
93
Objectives of the tribunals
Several diVerent rationales have been invoked as justication for the establish-
ment 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 dene
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
Ibid., para. 16, citing Antonio Cassese, International Criminal Law, Oxford: Oxford
University Press, 2003, p. 153.
91
Jurisdiction (Child Recruitment), 31 May 2004, para. 25. Also: Kallon et al. (SCSL-04-
15-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004,
paras. 8082.
92
93
94
SS Lotus (France v. Turkey), [1927] PCIJ Ser. A. (Judgments) No. 10 (Judgment No. 9)
(1929).
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 humanitar-
ian 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 conict;
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 signicance, as it justies 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 rst annual report of the ICTY,
it would be wrong to assume that the Tribunal is based on the old maxim
at 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: at justitia ne pereat mundus (let justice be done lest the world
should perish). Indeed, the judicial process aims at averting the exacerba-
tion and aggravation of conict 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
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.
96
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. 109/1995/615/703705),
Judgment, 20 January 1997.
97
First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 18.
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 conict
from the proverbial battleeld.
99
This has probably been of only limited
importance in practice. In the case of Rwanda and Sierra Leone, the conicts
were over for all practical purposes when the tribunals were established. As for
the ICTY, the conict in Bosnia and Herzegovina that it was intended to
resolve raged on for two and a half years after its establishment. The wars
worst massacre, at Srebrenica, took place a few days after an ICTY Trial
Chamber held a public hearing conrming its indictments against Bosnia
Serb leaders Radovan Karadzic and Ratko Mladic. And although the Tribunal
was fully operational and quite eVective by 1999, it was manifestly incapable
of preventing armed conict when the Kosovo war erupted that year.
Deterrence gures 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 inter-
national 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 humani-
tarian law, and in particular the Geneva Conventions, that the parties to
the conict 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 Secre-
tary-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
UN Doc. S/RES/808 (1993). Similarly, see UN Doc. S/RES/955 (1994) and UN Doc. S/
RES/1315 (2000).
99
Momir Nikolic (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 60.
100
Ibid., para. 59.
101
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
102
UN Doc. S/RES/955 (1994).
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 con-
victed 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 conict 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 perpe-
trators, parallel accountability mechanisms, such as truth commissions, are
frequently associated with post-conict justice.
108
103
UN Doc. S/RES/1315 (2000).
104
105
Ibid., para. 59.
106
Ibid., para. 60 (emphasis in the original).
107
William A. Schabas, Genocide Trials and Gacaca Courts, (2005) 3 Journal of Interna-
tional Criminal Justice 879.
108
of the Secretary-General, UN Doc. S/2004/616, para. 46 See also: William A. Schabas
Despite the claim that the tribunals address individual rather than collec-
tive guilt, there is no doubt that certain groups consider themselves to have
been stigmatised. Richard Goldstone has explained how when he rst 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, specically 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 rst and the
last international criminal tribunal, he would have been absolutely justi-
ed in his criticism. But if the ICTY was to be the rst 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 establish-
ment of the Rwanda Tribunal, it remains politically dubious that, given
the veto power of the ve 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 interna-
tional 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
and Shane Darcy, eds., Truth Commissions and Courts: The Tension Between Criminal
Justice and the Search for Truth, Dordrecht: Kluwer Academic Publishers, 2004.
109
Richard J. Goldstone, International Jurisdiction and Prosecutorial Crimes, (1999) 47
Cleveland State Law Review 473 at p. 479.
110
UN Doc. S/RES/955 (1994).
Court for Sierra Leone made references to the importance of the national
reconciliation process, including conrmation 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 clarica-
tion 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 nding for historys sake.
113
According to Judge Wald,
Many historians as well as the relatives of victims maintain that only the
adjudicated ndings of an impartial international body of jurists following
accepted rules of legal procedure will quell the doubts of future genera-
tions that the terrible things did in fact happen. To chronicle accurately for
history some of the worlds darkest deeds is the special responsibility of
the Tribunal. Many would say it explains and even justies the extraor-
dinary length of the Tribunals judgments and what sometimes appears to
be the Tribunals 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 neigh-
bours, 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
111
UN Doc. S/RES/1315 (2000), preambular paras. 4, 7 and 12.
112
UN Doc. S/PV.3217 (25 May 1993).
113
Patricia M. Wald, Judging War Crimes, (2000) 1 Chicago Journal of International Law
189, at p. 195.
114
Ibid.
115
Gabrielle Kirk McDonald, Crimes of Sexual Violence: The Experience of the Interna-
tional Criminal Tribunal, (2000) 39 Columbia Journal of Transnational Law 1, at p. 8.
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 docu-
ments 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 human-
ity 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 reected in voluminous case
law, the ad hoc tribunals have prepared the way for the International
Criminal Court. Concepts and provisions of the humanitarian law conven-
tions 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.
116
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.
117
Dragan Nikolic (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 122.
118
Ibid., para. 59.
119
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 ows inexorably fromtheir role as replace-
ments 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 conicting 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 specic reference to the possible application of the
national criminal lawof 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
Leones 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 rst 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. Roling: 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
SCSL Statute, art. 14(2).
3
Ibid., arts. 1(1), 5.
74
qualied.
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 humanitar-
ian 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 qualied publicists of the various nations,
as subsidiary means for the determination of rules of law.
According to the ICTYAppeals 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
First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 4, citing
B. V. A. Roling, 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.
5
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
1997, para. 11(ii).
6
Ibid., para. 10.
7
Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutors Request for Review or Recon-
sideration), 31 March 2000.
8
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, fn. 364. In Erdemovic (IT-96-22-
A), 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
S O U R C E S O F L AW 75
the three primary sources treaties (conventions), custom and general prin-
ciples listed in sub-paragraphs (a), (b) and (c), but in reality the rst two
take precedence. All of these sources gure 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 dening the applicable law to be applied by the court.
Similarly, article 21 of the Rome Statute of the International Criminal Court
not only identies 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, interna-
tional human rights tribunals like the United Nations Human Rights Commit-
tee 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 lled 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 justiable 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 conict, 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
enumerated in article 38(1), for example, unilateral acts. See also: Kupres kic (IT-95-16-
T), Judgment, 14 January 2000, para. 540.
9
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.
10
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9.
11
ICTY Statute, art. 15; ICTR Statute, art. 14; SCSL Statute, art. 14.
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 Conventions
13
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 interna-
tional humanitarian law. In the Tadic jurisdictional decision, the ICTYAppeals
Chamber spoke of the more recent and comprehensive notion of interna-
tional humanitarian law, which has emerged as a result of the inuence of
human rights doctrines on the law of armed conict.
19
Apparently, the term
international humanitarian law was rst 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
12
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.
13
Ibid., art. 3 (common).
14
Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of
Victims of Non-International Armed Conicts, (1979) 1125 UNTS 609.
15
ICTY Statute, art. 5(h); ICTR Statute, art. 3(h); SCSL Statute, art. 2(h).
16
(1951) 82 UNTS 279.
17
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 195.
18
Alain Pellet and Patrick Daillier, Droit international public, 7th edn, Paris: LGDJ, 2002,
p. 35.
19
20
Dietrich Schindler, Signicance of the Geneva Conventions for the Contemporary
World, (1999) 836 International Review of the Red Cross 715, at fn. 4.
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 mechan-
isms like extradition and mutual legal assistance and as an autonomous
system of prosecution of international oVences. On numerous occasions, the
tribunals have identied 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 codication of certain
principles of international criminal law.
24
In Furundzija, 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
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 113(iii); Akayesu (ICTR-96-
4-A), Judgment, 1 June 2001, para. 22; Kupres kic (IT-95-16-T), Judgment, 14 January
2000, para. 514; Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 139.
22
Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 470.
23
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 405; Furundzija (IT-95-
17/1-T), Judgment, 10 December 1998, paras. 162, 164, 177, 249, 281; Tadic (IT-94-1-
A), 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
24
25
26
UN Doc. S/RES/827 (1993), annex; UN Doc. S/RES/955 (1994), annex.
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 inter-
governmental 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 States specic 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 instru-
ments 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 consequence
32
of this analogy between international treaties and
the ICTYand 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 codication 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
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.
29
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-94-1-
T), Decision on the Prosecutors Motion Requesting Protective Measures for Victims
and Witnesses, 10 August 1995, para. 18.
30
Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999,
p. 21.
31
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 282. But for the argument that the
statutes are treaties, see: Charles Lister, Whats in a Name? Labels and the Statute of the
International Criminal Tribunal for the Former Yugoslavia, (2005) 18 Leiden Journal of
32
p. 21.
33
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
Prosecutors Motion Requesting Protective Measures for Victims and Witnesses, 10
August 1995, para. 18.
34
GabcikovoNagymaros Project, [1997] ICJ Reports 39, paras. 46, 99, 104. On interpreta-
tion of the statutes generally, see: William A. Schabas, Interpreting the Statutes of the
Ad Hoc Tribunals, in L. C. Vohrah et al., eds., Mans Inhumanity to Man, The Hague:
Kluwer Law International, 2003, pp. 847888.
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 ICTYAppeals 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
rst 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 Con-
vention 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 benet the accused). Yet the ad hoc tribunals have made only rare and
essentially perfunctory references to what is almost surely a general principle
35
Vienna Convention on the Law of Treaties, (1979) 1155 UNTS 331, art. 31(1).
36
Ibid., art. 32.
37
Bagosora et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutors Appeal
from the Decision of a Conrming Judge Dismissing an Indictment against Theoneste
Bagosora and 28 Others, 8 June 1998, paras. 2829; Delalic et al. (IT-96-21-T), Judg-
ment, 16 November 1998, para. 1161.
38
and Judge Nieto-Navia, 3 June 1999, para. 11.
39
Jurisdiction, 2 October 1995, paras. 71142.
40
41
Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June
1999, pp. 2122. Also: Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge
Shahabuddeen, 3 June 1999.
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 denition of a crime shall be strictly construed and
shall not be extended by analogy. In case of ambiguity, the denition shall be
interpreted in favour of the person being investigated, prosecuted or con-
victed.
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 utile
48
and expressio unius est exclusio alterius.
49
The Vienna Convention indicates that interpreters may refer to the pre-
paratory 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
1997, para. 49; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 319; Tadic
(IT-94-1-A), Decision on Appellants 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. 408413; Kayishema et al. (ICTR-95-1-T), Judg-
ment 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.
43
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 22(2).
44
Kupres kic (IT-95-16-T), Judgment, 14 January 2000, para. 547; Delalic et al. (IT-96-21-
A), 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.
45
Jurisdiction, 2 October 1995, para. 83; Tadic (94-1-A), Judgment, 15 July 1999, para.
284; Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 571; .
46
Blas kic (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.
47
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 166; Kupres kic (IT-95-
16-T), Judgment, 14 January 2000, para. 620.
48
Tadic (IT-94-1-AR72), Separate Opinion of Judge Abi-Saab on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995; Blas kic (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-95-14/2-
AR73.6), Decision in the Appeals Chamber Regarding the Admission into Evidence of
Seven AYdavits and One Formal Statement, 18 September 2000; Niyitegeka (ICTR-96-
14-A), Judgment, 9 July 2004, para. 53.
49
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 166; Kupres kic , para. 623.
50
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.
materials,
51
the reports of the Secretary-General,
52
and submissions by
various Member States during the drafting process.
53
The Secretary-Gener-
als 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 Secretary-
General followed by a series of exchanges between Secretariat and Security
Council as the text was being ne-tuned.
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.
51
2004, para. 5.
52
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; Blas kic (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. (ICTR-
99-52-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. 35.
53
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-94-1-
AR72), Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory
Appeal on Jurisdiction, October 2, 1995, para. 57.
54
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 295296 (and see paras. 293297
generally).
55
tion 955 (1994), UN Doc. S/1995/134.
56
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 Secretary-
General, UN Doc. S/2001/693.
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
inuenced 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, specically 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 signicant
norm has been the principle of legality, often identied 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
conning the Tribunals 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 specic conventions does not arise.
59
This
statement, which appears in the Secretary-Generals 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 inter-
national 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 connes
of such rules.
60
57
Tadic (IT-94-1-AR72), Separate Opinion of Judge Li on the Defence Motion for Inter-
locutory 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.
58
E.g., Hadz ihasanovic et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challen-
ging 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.
59
tion 808 (1993), UN Doc. S/25704 (1993), para. 34.
60
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 287 (see also para. 296).
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 con-
stituted 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 interna-
tional law, and if the discrepancy could not be resolved by interpretation, they
would have no choice but to declare the impugned provision to be inopera-
tive. In the judgment of the International Military Tribunal for the Far East,
Judges Pal and Roling 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
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.
62
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 126. Also: Kordic et al. (IT-
95-14/2-PT), Decision on the Joint Defence Motion to Dismiss the Amended Indict-
ment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and
3, 2 March 1999, para. 20.
63
2004, para. 47.
64
B. V. A. Roling and C. F. Ruter, The Tokyo Judgment, vol. II, Amsterdam: APA
University Press Amsterdam, 1977.
65
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.
procedure and evidence for the conduct of the pre-trial phase of the proceed-
ings, 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 Courts
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 rst 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 determi-
nation 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 avour to them, and
this was only amplied 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 them-
selves evolved and now diVer in signicant 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
ICTY Statute, art. 15; ICTR Statute, art. 14.
67
SCSL Statute, art. 14.
68
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. 5297 of the First Annual Report.
69
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.
70
Judging Tadic , The American Lawyer, September 1995, p. 63.
71
For example, in Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to
Withdraw the Indictment, 18 March 1999, an ICTR Trial Chamber noted the diVerences
in Rule 11 with respect to the two tribunals.
72
Norman (SCSL-03-08-PT), Decision on the Applications for a Stay of Proceedings and
Denial of Right to Appeal, 4 November 2003.
73
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.
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 specic
problem.
75
The rst 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 specic Rules, although no subsequent amendment seems to
reect 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
Diane Marie Amann, Harmonic Convergence? Constitutional Criminal Procedure in an
International Context, (2000) 75 Indiana Law Journal 809, at pp. 818820.
75
76
Cited in Virginia Morris and Michael P. Scharf, An Insiders Guide to the International
Criminal for the Former Yugoslavia, vol. II, Irvington-on-Hudson, NY: Transnational
Publishers, 1995, p. 423.
77
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.
78
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.
79
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 xed this in light of the decision, but no amendment along the same lines
has ever been made to the ICTY or ICTR RPE.
80
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.
81
Mia Swart, Ad Hoc Rules for Ad Hoc Tribunals: The Rule-Making Power of the Judges
of the ICTYand ICTR, (2002) 18 South African Journal of Human Rights 570, at p. 578.
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 justications 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 recog-
nised 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
conict 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 specically
covered in the Statute of the ICTY, but expressly set out in the ICC
Statute.
87
There have been challenges to the legality of specic rules, but no cases of any
conict appear to have been found.
88
The subordinate position of the RPE, as
82
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).
83
Jelisic (IT-95-10-A), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 7.
84
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001.
85
86
Tadic (IT-94-1-A), Decision on Appellants Motion for the Extension of the Time-Limit
and Admission of Additional Evidence, 15 October 1998, para. 36; Tadic (IT -94-1-A-
AR77), Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan
Vujin, 27 February 2001; Branin (IT-99-36-PT), Decision on Motion to Dismiss
Indictment, 5 October 1999, para. 12.
87
Milos evic (IT-02-54-T), Decision on Assigned Counsels Motion for Withdrawal, 7
December 2004, para. 13 (references omitted).
88
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
delegated legislation, is conrmed 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 exibility to
achieve this goal.
90
Accordingly, it is plain from the successive amendments
of the Rules that the Rules have been rened 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 inter-
nationally 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 fullling 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 conict 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, nds expression in Rule 15.
92
the Suspect, 17 November 1998, p. 6; Simic et al. (IT-95-9-PT), Decisions on Simo Zarics
and Miroslav Tadics Applications for Provisional Release, 4 April 2000; Branin et al. (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
Branin 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
Prosecutors Appeal from the Decision of a Conrming Judge Dismissing an Indictment
against Theoneste Bagosora and 28 Others, 8 June 1998, para. 39.
89
Tadic (IT-94-1-A-AR77), Appeal Judgment on Allegations of Contempt Against Prior
Counsel, Milan Vujin, 27 February 2001; Milos evic (IT-99-37-PT, IT-01-50-PT and
IT-01-51-PT), Decision on Prosecutors Motion for Joinder, 13 December 2001.
90
Aleksovski (IT-95-14/1-AR73), Decision on Prosecutors Appeal on Admissibility of
Evidence, 16 February 1999, para. 19.
91
Blagojevic et al. (IT-02-60-AR73/AR73.2/AR73.3), Decision, 8 April 2003, para. 15.
92
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.
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 nat-
ure.
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 Kupres kic , 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 at. 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 specically prevented by the
RPE. Clearly, the ICTR may apply what is not specically 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.
93
sideration), 31 March 2000, para. 65.
94
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, fn. 104.
95
Ruggiu (ICTR 97-32-I), Decision on the Defence Motion for Restitution of Personal
EVects, 7 July 1998.
96
Bagosora and Twenty-eight Others, 8 June 1998, paras. 4445. 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.
Examples include the Rules of Detention
97
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 ICTYestablished 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
97
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. 98116. 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.
98
For the ICTY: Code of Professional Conduct for Counsel Appearing Before the Inter-
national Tribunal, UN Doc. IT/125. For the ICTR: Code of Profesional Conduct for
Defence Counsel. For the SCSL: Code of Conduct for Counsel.
99
100
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.
101
Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, annex, para. 106.
102
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.
an implied power resulting fromthe 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 Commu-
nications 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 Com-
mission 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 conrmed
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 tribu-
nals; 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
ICTY RPE, Rule 33.
104
105
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 TRCs Request to Hold a Public Hearing With Chief Samuel Hinga
Norman JP, 28 November 2003.
106
Akayesu (ICTR-96-4-A), Order Relating to the Assignment of Counsel, 27 July 1999,
pp. 23.
107
On treaties as evidence of customary international law, see below, at pp. 98100.
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 conict with or derogating from per-
emptory norms of international law, as are most customary rules of inter-
national humanitarian law.
108
All three statutes are derived from the central treaty of modern interna-
tional 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
organisations 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 specic 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 ICTYand
ICTR.
112
The Charter is also justication 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 Fur-
undzija, a Trial Chamber referred to the Charters recognition that concern for
the achievement of equality for women was one of the principles reected in
108
109
Ibid., paras. 7, 2123; Tadic (IT-94-1-T), Decision on the Prosecutors Motion Request-
ing Protective Measures for Victims and Witnesses, 10 August 1995, para. 12; Erdemovic
(IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 58; Blas kic (IT-95-14-T),
Judgment, 3 March 2000, para. 1; Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November
2001, para. 769; Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 Novem-
ber 2001, paras. 57; Hadzihasanovic et al. (IT-01-47-PT), Decision on Joint Challenge
to Jurisdiction, 12 November 2002, paras. 97, 101, 173.
110
111
Ibid., para. 19.
112
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras. 13,
32, 33.
113
materiae : Illegal Delegation of Powers by the United Nations, 25 May 2004, para. 21.
the United Nations Charter.
114
In the Blas kic 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 signicant exception to the impen-
etrability 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 conict between a States 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 conict, 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
dening 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 provi-
sions 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
Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, para. 202.
115
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 64.
116
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.
117
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.
118
Jurisdiction, 2 October 1995, para. 89; Delalic et al. (IT-96-21-A), Judgment, 20 Feb-
ruary 2001, paras. 125, 136; Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 52.
119
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 68171; Aleksovski (IT-95-14/1-A),
Judgment, 24 March 2000, paras. 147152; Delalic et al. (IT-96-21-A), Judgment, 20
February 2001, paras. 5684.
120
Victims of Non-International Armed Conicts, (1979) 1125 UNTS 609.
121
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
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 dened 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 conicting parties. It is therefore tting 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
conict did not adhere to a specic treaty. (Report of the Secretary-
General, 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 conict 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 King-
dom 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
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).
122
123
Ibid., para. 143.
124
(1951) 82 UNTS 279. See, e.g.: Rwamabuka (ICTR-98-44-AR72.4), Decision on Inter-
locutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of
Genocide, 22 October 2004, paras. 2324; Milos evic (IT-02-54-T), Decision on Motion
for Judgment of Acquittal, 16 June 2004, para. 49.
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 signicant 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 ratication, by the former Socialist
Federal Republic of Yugoslavia, and whether they also reected 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 conrmed 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 iden-
tical 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 preparatoires of the Convention have been deemed of considerable
relevance in interpreting the genocide provisions of the statutes themselves.
129
The denition 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 Nurem-
berg Charter.
130
The tribunals have frequently referred to international human rights trea-
ties, such as the International Covenant on Civil and Political Rights,
131
the
European Convention on Human Rights,
132
the Convention Against Torture
125
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; Hadzihasanovic et al.
(IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Rela-
tion to Command Responsibility, 16 July 2003, para. 14; Strugar (IT-01-42-T), Judg-
ment, 31 January 2005, para. 227.
126
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.
127
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 156158;
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.
128
UNTS 277.
129
Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 25, fn. 39, para. 142.
130
131
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171. See: Limaj
et al. (IT-03-66-AR65.3), Decision on Isak Muslius Request for Provisional Release, 31
October 2003, paras. 89; Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge
Pocar, 26 May 2003.
132
Convention for the Protection of Human Rights and Fundamental Freedoms (Eur-
opean Convention on Human Rights), (1955) 213 UNTS 221. See: Hadz ihasanovic et al.
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 Conict;
136
and international criminal law treaties, such
as the International Convention for the Suppression of Terrorist Bombing
137
and the Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity.
138
Reference to the International Cove-
nant 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
(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.
991999.
133
GA Res. 39/46, annex.
134
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.
135
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. 1416.
136
Convention for the Protection of Cultural Property in the Event of Armed Conict,
(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. 9192.
137
UN Doc. A/RES/52/164. See: Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 221.
138
(1968) 754 UNTS 73. See: Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001,
para. 197, fn. 250.
139
See: ICTY Statute, art. 21; ICTR Statute, art. 20; SCSL Statute, art. 17.
140
Agreement Between the United Nations and the Kingdom of the Netherlands Concern-
ing 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.
141
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.
142
Cooperation Agreement Between the International Police Organisation Interpol and
the Special Court for Sierra Leone.
Customary international law
Customary law is dened 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 sophis-
ticated 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 specic 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 interna-
tional human rights instruments.
147
But when Croatia argued that customary
international law protected its national security interests from an ICTY sub-
poena, 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
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.
144
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. 4042 (also paras.
74, 76, 80).
145
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
identied three sources of law, the Statute, the RPE and customary international law.
146
Milos evic (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:
Branin (IT-99-36-PT), Decision on Petition for a Writ of Habeas Corpus on
Behalf of Radoslav Branin, 8 December 1999.
147
Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, art. 8;
Convention for the Protection of Human Rights and Fundamental Freedoms (Eur-
opean Convention on Human Rights), (1955) 213 UNTS 221, art. 5(4).
148
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
Inter-
national criminal prosecution based upon custom was recognised at Nurem-
berg, 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 ICTYs 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 ratied 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 Furundzija. It cited the Lieber Code, the Hague Conven-
tions, 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 estab-
lishing 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
But see Judge Hunt, in Simic et al. (IT-95-9-PT), Separate Opinion of Judge David Hunt
on Prosecutors 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.
149
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. 7381.
150
151
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.
152
153
Ibid., para. 137.
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 codication of customary
international law.
155
Consequently, by and large the tribunals have associated customary inter-
national law with codied texts, such as common article 3 of the 1949 Geneva
Conventions. The ICTR Appeals Chamber has cited the International Cove-
nant 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 con-
cluded 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 conrmed 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
Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 30.
See also: Hadz ihasanovic et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdic-
tion, 12 November 2002, paras. 6884.
155
156
Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 209.
157
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 227; 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;
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; Milos evic (IT-
02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 30.
158
Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 51.
159
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 327.
160
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 353.
161
Erdemovic (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah,
para. 51.
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 codication of prohibited weapons
164
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 ratied 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 denition of crimes against humanity in the Nuremberg
Charter, the ICTYAppeals 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 nd
this to be the case. Where customary crimes are not codied 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 Tribunals subject-
matter 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
para. 51.
164
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art.
8(2)(b)(xx).
165
Eric David, Principes de droit des conits armes, 2nd edn, Brussels: Bruylant, 1999, p. 693.
166
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.
167
168
Ibid., para. 353.
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 reection 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 pre-
sumption 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 conict 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 conicts 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 modied 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, specically the fair trial
rights that are codied 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 specic
norms as being jus cogens, such as the prohibitions of genocide
174
or
169
Hadzihasanovic et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12
November 2002, para. 171.
170
171
Jurisdiction, 2 October 1995, para. 141; Tadic (IT-94-1-A), Judgment, 15 July 1999,
para. 305.
172
Vienna Convention on the Law of Treaties, (1979) 1155 UNTS 331, art. 53.
173
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.
174
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 Con-
vention, 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
torture.
175
In C
elebic i, the Appeals Chamber note[d] that in human rights

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 inter-
national law or jus cogens, i.e. of a non-derogable and overriding charac-
ter.
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 nding 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 prin-
ciples is not located primarily in international practice but rather in national
legal systems. Classic examples of such general principles are the rule of res
on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 20; Branin
(IT-99-36-T), Judgment, 1 September 2004, para. 680.
175
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 225; Furundzija
(IT-95-17/1-T), Judgment, 10 December 1998, paras. 155157; Prosecutor v. Kunarac
et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 466.
176
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 172, fn. 225.
177
Kupres kic (IT-95-16-T), Judgment, 14 January 2000, para. 530.
178
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.
179
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 321; Hadz ihasanovic
et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in
Relation to Command Responsibility, 16 July 2003, para. 93.
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 specic legal provision which is adopted by a majority of legal
systems but to consider, from an examination of national systems gen-
erally, 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 nding 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 ll possible gaps in
international customary and treaty law, international and national crim-
inal 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 ll 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 incor-
poration of principles of national law into the unique system of interna-
tional 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
EVect of Awards of UN Administrative Tribunal Case, [1954] ICJ Reports 47, at p. 53.
181
Canada v. United States, [1984] ICJ Reports 246, at paras. 129148.
182
Diversion of Water from the Meuse Case (Netherlands v. Belgium), [1937] PCIJ Reports,
Series A/B, No. 70, pp. 7677.
183
Chorzow Factory Case (Merits), [1928] PCIJ Reports, Series A, No. 17, at p. 29.
184
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 439.
185
South-West Africa Case, [1950] ICJ Reports 148.
186
187
principles are mentioned in the RPEs 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-Generals 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 identication 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 interna-
tional tribunals which have had recourse to Article 38(1)(c) of the ICJ
Statute. Second, it is the view of eminent jurists, including Baron Des-
camps, 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 specic rules. As stated
by the ItalianVenezuelan 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 princi-
ple expresses a general truth, which guides our action, serves as a
theoretical basis for the various acts of our life, and the applica-
tion of which to reality produces a given consequence.
In light of these considerations, our approach will necessarily not involve a
direct comparison of the specic rules of each of the worlds legal systems,
but will instead involve a survey of those jurisdictions whose jurispru-
dence 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 establish-
ment of the International Tribunal.
190
188
ICTY RPE, Rule 89(B); ICTR RPE, Rule 89(B); SCSL RPE, Rule 89(B).
189
Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolu-
tion 808 (1993), UN Doc. S/25704.
190
7 October 1997, para. 57 (references omitted).
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 justied.
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
C
elebic i case said it was undeniable that acts such as murder, torture, rape and
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 conrmed 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 dening 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
1997, para. 25.
192
United States v. Wilhelm List et al. (Hostage case), (1948) 8 LRTWC 34, 11 TWC 757,
p. 49 (LRTWC).
193
Kupres kic (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).
194
195
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.
196
Furundzija (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.
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 recog-
nised.
199
The ICTY Appeals Chamber has ruled that general principles of
law recognised an adjudicative privilege or judicial immunity from compul-
sion 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 tness 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 accom-
panied 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 identied.
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 eld of procedure.
205
Faced with
disagreement among his colleagues on whether general principles supported
197
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 Prose-
cutors Motion for Judicial Notice of Adjudicated Facts, 22 November 2001, para. 42;
Prosecutor v. Nyiramasuhuko (ICTR-98-42-T), Decision on the Prosecutors Motion for
Judicial Notice and Admission of Evidence, 15 May 2002, para. 23.
198
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.
199
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 319; Hadz ihasanovic 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.
200
Delalic et al. (IT-96-21-A), Order on Motion of the Appellant, Esad Landzo, for
Permission to Obtain and Adduce Further Evidence on Appeal, 7 December 1999.
201
Milan Vujin, 31 January 2000.
202
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
Indictment, 18 March 1999.
203
Strugar (IT-01-42-T), Decision re the Defence Motion to Terminate Proceedings, 26
May 2004.
204
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 225, para. 25.
205
Simic et al. (IT-95-9-PT), Separate Opinion of Judge David Hunt on Prosecutors
Motion, 27 July 1999, para. 24.
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 qualied 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 consid-
ered 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
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, 7 October 1997,
para. 3.
207
208
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 99100. Also Aleksovski
(IT-95-14/1-A), Declaration of Judge David Hunt, 24 March 2000.
209
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 112113; 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. 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;
Branin et al. (IT-99-36-PT), Decision on Application by Momir Talic for the Disqua-
lication 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.
210
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 Conict in Bosnia-Herzegovina, 25 March
1999; Simic et al. (IT-95-9-PT), Decision on (1) Application by Stevan Todorovic to Re-
open 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.
211
Erdemovic (IT-96-22-A), Judgment, 7 October 1997, paras. 4145; Tadic (IT-94-1-A),
Judgment, 15 July 1999, paras. 255270; Milos evic (IT-02-54-PT), Decision on Preli-
minary Motions, 8 November 2001, paras. 3233.
Most Trial Chamber judgments now begin with a summary of the applic-
able 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 Interna-
tional 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
212
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; Kovac evic (IT-97-24-PT), Decision on Defence
Motion to Strike Counts 4, 5, 8, 9, 10, 11, 13 and 15, 6 July 1998.
213
Kvoc ka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of
the Indictment, 12 April 1999, para. 32.
214
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 719.
215
216
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.
217
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 104110.
218
Ibid.
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 coher-
ent 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 nancial 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 dene the crime of rape. In the rst conviction for rape by
either tribunal, the ICTR proposed a denition
221
that was then followed by
an ICTY Trial Chamber
222
as well as other ICTR Trial Chambers.
223
Subse-
quently, however, other ICTY Trial Chambers took a diVerent approach,
224
and this was ultimately conrmed 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 rst set out in
detail by the ICTYAppeals Chamber, which found it to be implied within the
219
Leone, UN Doc. S/2000/915, paras. 4246.
220
Ibid., para. 41.
221
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 597598.
222
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 477479.
223
224
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 181, 185; Kunarac et al.
225
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 128.
226
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.
345346. However, in a judgment issued after the ICTYAppeals Chamber had, in eVect,
rejected the Akayesu denition, an ICTR Trial Chamber that included Judge Pillay, who
had been a member of the Akayesu bench, ignored Kunarac and simply reaYrmed the
Akayesu denition: Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003,
para. 456.
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 satised 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 autho-
rities, 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 worlds 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 persua-
sive 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 considera-
tion other decisions of international courts, although it added that it might
not come to the same conclusion, and that it was an autonomous interna-
tional 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 interna-
tional 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 specically,
precedents may constitute evidence of a customary rule in that they are
227
228
Ibid., para. 468.
229
Semanza (ICTR-97-20-A), Separate Opinion of Judge Shahabuddeen, 31 May 2000,
para. 25.
230
indicative of the existence of opinio iuris sive necessitatis and international
practice on a certain matter, or else they may be indicative of the emer-
gence 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 organisations 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 conicting 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 adjudi-
cated, before the ICJ in two cases, led by Bosnia and Herzegovina
237
and by
231
232
Ibid., para. 542.
233
Charter of the United Nations, art. 92.
234
See below at pp. 243245.
235
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 24. See: Theodor Meron,
Classication of Armed Conict in the Former Yugoslavia: Nicaraguas Fallout, (1998)
92 American Journal of International Law 236; Mark A. Drumbl, Looking Up, Down
and Across: The ICTYs Place in the International Legal Order, (2003) 37 New England
Law Review 1037; Theodore Christakis, Les relations entre la CIJ et le Tribunal penal
international pour lex-Yougoslavie: les premie`res ssures a` lunite du droit?, (1996) 1
Lobservateur des Nations Unies 45.
236
Krstic (IT-98-33-A), Judgment, 19 April 2004.
237
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
Croatia.
238
A defence argument that the ICTY should suspend determina-
tion 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
qualied 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 con-
sulted 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 qualied pub-
licists. 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 Shaha-
buddeen 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
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, LaVaire relative a` lapplication de la Convention pour la pre vention et la
repression du crime de genocide (Bosnie-Herzegovine c. Yougoslavie), Arret du 11 juillet
1996, exceptions preliminaires, (1996) 42 Annuaire franc ais de droit international 357.
238
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Yugoslavia), Application, 2 July 1999.
239
Kvoc ka 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.
240
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 refer-
ences; Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004: six references; Blas kic (IT-95-
14-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: ve references.
procedure in the event of silence in the written rules, so as to assure the
exercise of such jurisdiction as it has, and to full itself, properly and eVec-
tively, as a court of law. Without that residual competence, no court can
function completely.
241
According to the ICTY Appeals Chamber, the Inter-
national Tribunal must possess the power to make all those judicial determi-
nations that are necessary for the exercise of its primary jurisdiction. This
inherent power inures to the benet of the International Tribunal in order that
its basic judicial function may be fully discharged and its judicial role safe-
guarded.
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, parti-
cularly where hardship is alleged by a non-party.
247
241
p. 17; Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge Shahabuddeen, 3
June 1999.
242
243
Ibid., para. 25, fn. 27.
244
Delalic et al. (IT-96-21-A), Separate Opinion of Judge Hunt, 22 April 1999, para. 3.
245
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).
246
On the distinction, see: Michael Bohlander, International Criminal Tribunals and Their
Power to Punish Contempt and False Testimony, (2001) 12 Criminal Law Forum 91.
247
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.
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 interna-
tional. In other words, this is one of those powers mentioned by the
Appeals Chamber in the Blas kic (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
Delalic et al. (IT-96-21-A), Decision of the President on the Prosecutors Motion for
the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, 11
November 1996, paras. 2628; Blas kic (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; Branin (IT-99-36-R77), Concerning
Allegations Against Milka Maglov, Decision on Motion for Acquittal Pursuant to Rule
98bis, 19 March 2004, para. 15.
250
As well as, in the case of the SCSL, certain serious crimes under national law.
251
See: Andre Klip, Witnesses before the International Criminal Tribunal for the Former
Yugoslavia, (1996) 67 Revue internationale de droit penal 267, at pp. 276277; Andre
Klip, Tadic , Decisions Relating to the False Testimony of Opacic, in Andre Klip and
Goran Sluiter, eds., Annotated Leading Cases of International Tribunals, vol. I, Antwerp:
Intersentia, 1999, pp. 214216, at p. 214; William A. Schabas, Le Re`glement de preuve et
de procedure du Tribunal international charge de poursuivre les personnes presumees
responsables de violations graves du droit international humanitaire commises sur le
territoire de lex-Yougoslavie depuis 1991, (19931994) 8 Revue quebecoise de droit
international 112.
252
ICTY RPE, Rule 77(E); ICTR RPE, Rule 77(A); SCSL RPE, Rule 77(A).
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 nding
concerning a States failure to observe the provisions of the Statute or the
Rules. It also has the power to report this judicial nding to the Security
Council.
255
Inherent powers have been invoked as justication 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 fullled in order to
be admitted as counsel before the Tribunal.
256
Similarly, another Trial Cham-
ber said its inherent power to control proceedings was adequate foundation to
refuse audience to counsel, despite the fact he was qualied under Rule 44(A)
of the RPE, because he was for other reasons not a t 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 Cham-
ber took the view that unless the application, which was normally within the
253
Milan Vujin, 31 January 2000, para. 13 (references omitted).
254
255
Ibid., para. 33.
256
Kupres kic 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.
257
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.
258
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.
competence of the Registrar, raised issues of fairness of the trial, the Trial
Chamber should not determine the matter.
259
The Appeals Chamber has conrmed that Trial Chambers have the inher-
ent 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 Tribunals own detention unit
is such a substantial proportion of the nal 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
Milos evic (IT-02-54-T), Decision on Assigned Counsels Motion for Withdrawal, 7
260
Tadic (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000.
261
For the early release of Blaskic, whose sentence was reduced from forty-ve 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.
262
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.
human rights instruments, the minorities treaties, as judgments of the tribu-
nals 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 dened 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 princi-
pally 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 rst
motions to be adjudicated by the ICTY, a defence lawyer contested the
Prosecutors application for witness anonymity on the basis of rather unequi-
vocal 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 Pocars
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 specically 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 ratied it, but, like
263
Krstic (IT-98-33-T), Judgment, 2 August 2001, paras. 555556.
264
265
266
Tadic (IT-94-1-T), Decision on the Prosecutors Motion Requesting Protective Measures
for Victims and Witnesses, 10 August 1995, para. 28.
other human rights treaties, also a document that was adopted unan-
imously 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 demon-
strated 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 ratied the
ICCPR out of 149 State parties, only about 10 have expressed reserva-
tions, 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 justied 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
Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003.
268
269
1997, para. 45 (emphasis in the original).
270
Ibid. See also: Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 178.
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
In Kordic and C
erkez, an ICTY Trial Chamber considered the various

domestic law equivalents of the motion to dismiss that is traditionally led
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 jurisdic-
tions, the Trial Chamber said its determination might be inuenced 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 modication 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 identication 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 countrys law of criminal procedure as a secondary source of
legal rules.
275
The Statute species 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 ICTYand ICTR are specically 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
271
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).
272
273
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.
274
275
Ibid., art. 14(2).
276
Ibid., art. 20(3).
277
278
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 normconcerning the
defence of duress in public international law, they endeavoured to devise one
taking into account public policy considerations, and more specically a con-
cern 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 specic 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 balan-
cing 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
Mohamed Shahabuddeen, Policy-Oriented Law in the International Criminal Tribunal
for the Former Yugoslavia, in L. C. Vohrah et al., eds., Mans Inhumanity to Man, The
Hague: Kluwer Law International, 2003, pp. 889898.
280
7 October 1997, para. 78.
281
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, para. 8.
282
1997, para. 11(ii) (emphasis in the original).
283
Ibid., para. 50.
284
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.
285
Norman (SCSL-03-08-PT), Decision on Appeal by the Truth and Reconciliation Com-
mission 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
TRCs Request to Hold a Public Hearing With Chief Samuel Hinga Norman JP, 28
November 2003.
PART I I
Jurisdiction
4
Territorial, personal and temporal jurisdiction
Article 1 of each of the three statutes consists of a provision entitled Compe-
tence of the International Tribunal. This would seem to be a Gallicism; in
French, the word jurisdiction is translated as competence, 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 dening the crimes
over which the tribunals have jurisdiction. Jurisdiction has been dened 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 specic issues concerning territorial, personal and
temporal jurisdiction, some attention must be paid to potential conicts 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 concur-
rent 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
Blacks 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.
2
ICTY Statute, art. 9; ICTR Statute, art. 8; SCSL Statute, art. 8(2).
123
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 ex-
ercise 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. Dusko 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. With-
out 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 brea-
ched 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 ICTYAppeals 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
Letter dated 7 November 1994 from the Charge daVaires 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.
4
Jurisdiction, 2 October 1995, para. 56 (citing article 2(7) of the Charter of the United
Nations).
5
Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and
Pragmatics of Punishment, (1996) 90 American Journal of International Law 501.
124 J U R I S D I C T I O N
prosecuted by the International Tribunal.
6
Karamira was later tried before
Rwandan courts, convicted and executed.
7
Although it has at times generated conicts 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 Inter-
national 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 justied the exercise of primacy because of the short-
comings of national justice systems. In the Tadic jurisdictional decision, the
ICTYAppeals 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 dili-
gently. 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
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-conict 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-Respond-
ing 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 Geno-
cide, the Crime of Crimes, (2003) 1 Journal of International Criminal Justice 39.
7
Ministe `re Public v. Karamira, 1 Receuil de jurisprudence contentieux du genocide et des
massacres au Rwanda 75 (1st inst., Kigali, 14 February 1997).
8
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 Arbours Statement Regarding War Crimes Related Trials Currently Under-
way in Germany, ICTY Doc. CC/PIO/171-E, 19 March 1997).
9
T E R R I T O R I A L , P E R S O N A L A N D T E M P O R A L J U R I S D I C T I O N 125
German prosecution of Tadic because, at this early stage in the Tribunals
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
condence 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 conicts 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 conicts of jurisdic-
tion. 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 ICTYargued
that it might be fatally awed 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
See the discussion below at pp. 157158.
11
ICTY RPE, Rule 11bis(A)(iii).
12
ICTR RPE, Rule 11bis(A). There is nothing comparable in the SCSL RPE.
13
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 17.
14
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
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 conicts 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 nally 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 char-
acterised 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. Pre-
sumably, 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 awed. Finally, should
the international tribunals proceed following a national prosecution, in
International Criminal Tribunals for the Former Yugoslavia and Rwanda, (1999) 57
University of Toronto Faculty of Law Review 83, at p. 97.
15
AP v. Italy (No. 204/1986), UN Doc. CCPR/C/31/D/204/1986, 2 November 1987, para. 7.3.
16
17
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.
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 prosecu-
tion 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 nds no reection 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 specic 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 ICTYAppeals 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 nally be brought before an inter-
national 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
18
19
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.
20
Ibid., para. 82.
21
Kanyabashi (ICTR-96-15-T), Decision on the Defence Motion on Jurisdiction, 18 June
1997, paras. 3032.
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 Her-
zegovina. 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
Thou-
sands of cases were reviewed in this manner by a rather small and under-
funded 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 denes the locus of crimes they are
authorised to investigate and prosecute.
22
Mark S. Ellis, Bringing Justice to an Embattled Region Creating and Implementing the
Rules of the Road for BosniaHerzegovina, (1999) 17 Berkeley Journal of International
Law 1.
23
Third Annual Report of the ICTY, UN Doc. A/51/292-S/1996/665, annex, para. 80.
24
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. 7576; Fifth Annual Report of the ICTY, UN
Doc. A/53/219-S/1998/737, annex, paras. 128129; Sixth Annual Report of the ICTY,
UN Doc. A/54/187-S/1999/846, annex, paras. 135137; Seventh Annual Report of the
ICTY, UN Doc. A/55/273-S/2000/777, annex, paras. 187189; Eighth Annual Report of
the ICTY, UN Doc. A/56/352-S/2001/865, annex, paras. 201204; Ninth Annual Report
of the ICTY, UN Doc. A/57/379-S/2002/985, annex, paras. 233235; Tenth Annual
Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, paras. 252253; Eleventh
Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, paras. 286290.
25
Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 288.
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
ve 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
Tribunals territorial jurisdiction has not yet proved relevant in any prosecu-
tions. 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 Rwandas territory as such. The jurisdiction was apparently
extended to neighbouring states because in the aftermath of the 1994 geno-
cide, 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 Rwandas 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
Milutinovic et al. (IT-99-37-AR72.2), Reasons for Decision Dismissing Interlocutory
Appeal Concerning Jurisdiction over the Territory of Kosovo, 8 June 2004.
27
Larry D. Johnson, The International Tribunal for Rwanda, (1996) 67 International
Review of Penal Law 211, at p. 222.
28
Jaana Karhihlo, The Establishment of the International Tribunal for Rwanda, (1995) 64
Nordic Journal of International Law 683, at p. 698.
29
Letter dated 31 October 1994 from the Charge daVaires 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.
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 Interna-
tional 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 inicted on them by the crisis in Rwanda.
30
Both the ICTYand 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 air-
space and territorial waters need not be explored here because they have never
presented themselves before the tribunals and, based on the existing indict-
ments and pending proceedings, are unlikely to arise in the future.
One question of some interest with respect to territorial jurisdiction con-
cerns 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
rearm 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 aeld, 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
of Zaire to the United Nations addressed to the President of the Security Council, UN
Doc. S/1994/1267.
31
32
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.
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 signicant 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 dis-
continuance 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
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.
34
Special Court Agreement (Ratication) Act 2002, Supplement to the Sierra Leone
Gazette, vol. CXXX, No. II, 7 March 2002.
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 prose-
cute 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 Yugosla-
via.
37
A few months thereafter, the Secretary-General responded that he was
unable to x a date for the end of the ICTYs 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 conict 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 rst 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 conict between Serbia and
Croatia ended in January 1992, and the latter soon received general recogni-
tion 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 awed referendum and a declaration of independence.
35
UN Doc. S/RES/827 (1993), para. 2.
36
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 ceasere was dismissed: Boskoski et al. (IT-0482PT), Decision on
Johan Tarculovskis Motion Challenging Jurisdiction, 1 June 2005, para. 10.
37
UN Doc. S/RES/1329 (2000), para. 6.
38
Report of the Secretary-General Pursuant to Paragraph 6 of the Security Council
Resolution 1329 (2000), UN Doc. S/2001/154, para. 16.
39
Milosevic has been charged with atrocities beginning 1 August 1991. See Milos evic et al.
(IT-99-37-PT), Second Amended Indictment, 28 July 2004, para. 38.
40
Mrksic et al. (IT-95-13-R61), Review of Indictment Pursuant to Rule 61, 3 April 1996.
41
Jokic (IT-01-42/1-S), Sentencing Judgment, 18 March 2004, para. 24; Strugar (IT-01-
42-T), Judgment, 31 January 2005.
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 rst 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 conicts 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 denes
the end of its temporal jurisdiction. Article 7 states: The temporal jurisdic-
tion 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 Statutes 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 justied from 8 April 1994, when the plane
crash that killed President Habyarimana brought an end to what was really a
42
UN Doc. S/RES/713 (1991).
43
UN Doc. S/25266, at 22, para. 76 (1993).
44
UN Doc. S/PV.3453, at 14 (1994).
45
Statement by H. E. President Daniel Arap Moi on the Rwanda Tribunal, UN Doc.
S/1995/861, annex.
fragile ceasere. 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 conict 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 Courts 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 conict
and the events prior to 30 November 1996 in order to provide context for the
specic 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 signicance 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 tribunals jurisdiction. Defence lawyers have contested
46
tion 955 (1994), UN Doc. S/1995/134, para. 14. These words were referred to by two
judges of the Appeals Chamber as justication 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.
47
Eleventh Report of the Secretary-General on the United Nations Mission in Sierra
48
49
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-Generals
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.
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 alleg-
edly 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 accuseds 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 Tribunals 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 devel-
opments 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 conict because of the denitions of these crimes. But as other
judges have cautioned: The essential point to be noted is that this Tribunal
has a restricted and clearly dened 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 specic
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
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.
51
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 100
(citing Ngeze (ICTR-97-27-I), Decision on the Prosecutors Request for Leave to Amend
the Indictment, 5 November 1999, para. 3, and Nahimana (ICTR-96-11-T), Decision on
the Prosecutors Request for Leave to File an Amended Indictment, 5 November 1999,
para. 28).
52
Ngeze et al. (ICTR-96-11-AR72), Separate Opinion of Judge Shahabuddeen, 5 Septem-
ber 2000, para. 20. Judge Shahabuddeens views are cited by an ICTY Trial Chamber:
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 101.
53
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.
54
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, paras. 137, 473; Kupres kic 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 Prosecutions Opening Statement Concerning
Admissibility of Evidence, 22 January 2004.
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 Tribunals jurisdiction continued after that date, it can be argued that
the crime was committed within the temporal jurisdiction. Obviously, evi-
dence 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 subse-
quently 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 Prosecutors submission that allegations
dating before 1994 do not constitute independent crimes. These allega-
tions merely represent what the Prosecutor intends to oVer as relevant and
admissible evidence of crimes occurring in 1994, or relate to the continua-
tion 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 ICTRs hate propaganda case,
55
ICTY Statute, art. 4(3)(b); ICTR Statute, art. 2(3)(b).
56
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-96-11-
AR72), 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, 2728; 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, 3839.
57
Nsengiyumva (ICTR-96-12-I), Decision on the Defence Motions Objecting to the Jur-
isdiction of the Trial Chamber on the Amended Indictment, 13 April 2000, paras. 2728.
58
Ngeze et al. (ICTR-96-11-AR72), Joint Separate Opinion of Judge Lal Chand Vohrah
and Judge Rafael Nieto-Navia, 5 September 2000, paras. 79.
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 estab-
lished, 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 ed Rwanda and obtained refugee status within Canada. Wisely, the
Prosecutor apparently considered that the ICTR did not have temporal jur-
isdiction 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 inter-
national 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 agrant 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 Viola-
tions 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
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.
61
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 Mugeseras 1992 speech as a crime against humanity: Mugesera v. Canada
(MCI), 2005 SCC 40.
62
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.
January 1994 and 31 December 1994. The Statute of the Special Court for Sierra
Leone somewhat rened 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 dening a crime within the jurisdiction of the three tribu-
nals. Moreover, the general provision dening the forms of criminal partici-
pation speaks of [a] person who planned, instigated, ordered, committed or
otherwise aided and abetted.
63
Of more signicance is a provision entitled
Personal Jurisdiction that appears in the ICTYand 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 reects a specic interest in
corporate liability within the Sierra Leone conict
65
or, alternatively, a more
general growing concern with nancial actors in armed conicts.
66
Absent the
specic 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 conned
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
ICTY Statute, art. 7; ICTR Statute, art. 6; SCSL Statute, art. 6 (emphasis added).
64
ICTY Statute, art. 6; ICTR Statute, art. 5 (emphasis added).
65
E.g., UN Doc. S/RES/1385 (2001).
66
Mats Berdal and David M. Malone, Greed and Grievance: Economic Agendas in Civil
Wars, Boulder: Lynne Rienner, and Ottawa: International Development Research Cen-
tre, 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. 34.
67
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:
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 fteen 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 con-
siderably from one jurisdiction to another, and the vast majority would set it
lower than eighteen. The ICCs 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 specic features would need to be developed.
Similar concerns are reected in article 6 of the SCSL Statute. It says that
persons between fteen 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.
Kluwer Law International, 1999, pp. 189216, 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-Ziari, eds., Liability of Multinational Corporations under
International Law, Leiden: Martinus NijhoV Publishers, 2001, pp. 139195.
68
Drazen Erdemovic was twenty-three when he participated in the Srebrenica massacre:
Erdemovic (IT-96-22-A), Sentencing Judgment, 5 March 1998, para. 16.
69
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 conict was the participation of so-called child
soldiers.
71
The Secretary-Generals report said prosecution of children pre-
sented a diYcult moral dilemma. Noting the reports of widespread participa-
tion of child combatants in the conict, 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 devel-
oped countries, such as the United Kingdom and Ireland, the Secretary-
General proposed a compromise of fteen years, accompanied by language
drawn from the relevant human rights instruments. The Secretary-General
had initially contemplated a rather elaborate system of juvenile justice, includ-
ing 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-Generals 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 specic provisions relating to children, to this end.
75
70
Diane Marie Amann, Calling Children to Account: The Proposal for a Juvenile Cham-
ber in the Special Court for Sierra Leone, (2001) 29 Pepperdine Law Review 167.
71
Report of the Sierra Leone Truth and Reconciliation Commission, Freetown, 5 October
2004, vol. 2, chapter 2, Findings, para. 467.
72
Leone, UN Doc. S/2000/915 (4 October 2000), para. 32.
73
Ibid., para. 35.
74
Ibid., para. 37.
75
Letter dated 22 December 2000 from the President of the Security Council Addressed to
the Secretary-General, UN Doc. S/2000/1234, p. 1.
In its nal 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 signicance. 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 conict 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
Letter dated 31 January 2001 from the President of the Security Council addressed to
the Secretary-General, UN Doc. S/2001/95, paras. 79.
77
SCSL Statute, art. 13(2). See also, art. 15(4), with respect to appointment of prosecution
staV.
78
79
80
Mariann Meier Wang, The International Tribunal for Rwanda: Opportunities for
Clarication, Opportunities for Impact, (1995) 27 Columbia Human Rights Law Review
177, at p. 196.
81
Richard J. Goldstone, International Jurisdiction and Prosecutorial Crimes, (1999) 47
Cleveland State Law Review 473, at pp. 479480.
82
Colangelo, Manipulating International Criminal Procedure.
The general jurisdiction of the SCSL over oVences committed on the terri-
tory 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 peace-
keeping 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 conict in Sierra
Leone, there were many serious and credible charges that peacekeepers, parti-
cularly 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 rst response to the Secretary-
Generals 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
Leone, UN Doc. S/2000/915 (4 October 2000).
84
85
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 prose-
cution, 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 conrmed 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 nal
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. Never-
theless, unlike the situation that prevails at the ICC, it is not for the Court to
determine whether the sending State is decient 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 Secretary-
General 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 peace-
keepers from international prosecution,
89
and almost surely reects the inu-
ence of the United States, which has been especially concerned with this.
86
Ibid., para. 5.
87
the Secretary-General, UN Doc. S/2001/95.
88
89
UN Doc. S/RES/1422 (2002), UN Doc. S/RES/1487 (2003), UN Doc. S/RES/1497
(2003).
Seniority
The Charter of the Nuremberg Tribunal dened personal jurisdiction over
major war criminals of the European Axis,
90
and it has long been debated
whether all of the accused actually fullled 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
rst trials at the ICTY were conned to relatively insignicant 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 interna-
tional humanitarian law and Sierra Leonean law committed in the territory of
Sierra Leone since 30 November 1996, including those leaders who, in com-
mitting such crimes, have threatened the establishment of and implementa-
tion 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 commis-
sion of the crimes. The Secretary-General responded by suggesting the words
persons most responsible, saying that this expression denotes both a leader-
ship 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
(1951) 82 UNTS 279, annex, art. 1.
91
92
93
tion 808 (1993), UN Doc. S/25704 (1993), para. 30.
94
Letter dated 22 December 2000 from the President of the Security Council Addressed to
The SCSLTrial 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 Secretary-
General.
95
The Trial Chamber said that a judge authorising an indictment
should be satised 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
fullled 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 con-
clusion of the prosecution case, the accused will le 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 Prose-
cutor will have to provide an evidentiary basis for this aspect of the indict-
ment, 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, pre-
sented 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
reected in NGO materials as well as United Nations reports. Obviously, it
would be improper for the United Nations to establish a tribunal that identi-
ed 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 conict, including
those associated with the President himself.
100
95
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.
96
Ibid., para. 38.
97
Ibid., para. 40.
98
Ibid., para. 44.
99
Although it is worth recalling that the Nuremberg Charter charged the Tribunal with
prosecuting the major war criminals of the European Axis.
100
Sierra Leones Truth and Reconciliation Commission concluded that all factions in the
conict, including those aligned with the Government, committed attacks directed
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 denite signal within the Statute and the travaux preparatoires that it
should focus on acts of genocide, and this is in fact what it has done. The
Commission of Inquirys 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 Rwan-
dan 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 Zealands 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 geno-
cide and related crimes committed against Tutsi, rather than violations com-
mitted 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 conicts in the region. It was established to deal
with the most signicant act of genocide of the second half of the twentieth
century, and it is entirely appropriate that the Prosecutor has oriented indict-
ments with that in mind.
The Completion Strategy discussions have had the eVect of imposing a
limitation on both the ICTYand 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 ICTYs initial proposals
referred to limiting prosecutions to those crimes which most seriously violate
against civilians. See: Report of the Sierra Leone Truth and Reconciliation Commission,
Freetown, 5 October 2004, vol. 2, chapter 2, Findings, para. 76.
101
102
UN Doc. S/PV.3453, p. 16.
103
Press Statement by Richard Goldstone, ICTR Prosecutor, 12 December 1995, cited in
Akhavan, ICTR: Politics and Pragmatics of Punishment, at p. 507.
104
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 conrmed its agreement with the Strategy,
107
insisting that both tribunals, in reviewing and conrming any new indict-
ments, . . . ensure that any such indictments concentrate on the most senior
leaders suspected of being most responsible for crimes within the jurisdic-
tion 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
lter 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 prop-
erty. 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
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).
106
107
UN Doc. S/PRST/2002/21. Also: UN Doc. S/RES/1503 (2003), preamble.
108
UN Doc. S/RES/1534 (2004).
109
ICTY RPE, Rule 28(A), amended 6 April 2004. There is no equivalent provision in the
ICTR RPE.
110
ICTY RPE, Rule 11bis(A); ICTR RPE, Rule 11bis(A).
111
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.
provision, an order was issued freezing the assets of Slobodan Milosevic.
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 con-
sequences. Moreover, Milosevic 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 Felicien 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
Presidents 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 nds 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
Milos evic 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.
113
Against Decisions of the Prosecutor and President of the Tribunal, 22 November 2002.
114
ICTY RPE, Rules 98 ter (B), 105; ICTR RPE, Rules 88(B), 105.
115
SCSL RPE, Rules 88(B), 104.
116
Musema (ICTR-96-13), Decision on an Application by African Concern for Leave to
Appear as Amicus Curiae, 17 March 1999, paras. 1011.
117
E.g., Bagosora et al. (ICTR-98-41-T), Decision on Amicus Curiae Request by the
Rwandan Government, 13 October 2004.
Furthermore, with rare exceptions, the defendants are declared indigent and
benet from funded counsel.
The RPE contain a provision entitled Compensation to Victims that
requires the Registrar to transmit a judgment nding 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 nal 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 unli-
kely to produce substantial results in the near future.
120
The issue of compensation for victims was apparently rst 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 Registrys 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 conclu-
sion, 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
ICTY RPE, Rule 106; ICTR RPE, Rule 106; SCSL RPE, Rule 105.
119
Mikaela Heikkila, International Criminal Tribunals and Victims of Crime, Turku: A
bo
Akademi University, 2004, at p. 176.
120
UN Doc. S/2000/1063, appendix, para. 45.
121
Naomi Roht-Arriaza, Reparations Decisions and Dilemmas, (2004) 27 Hastings Inter-
national and Comparative Law Review 157, at p. 184.
122
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.
123
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 denition diVers from one instrument to
the other. Each also contains provisions that t broadly within the generic
category of war crimes, although they are titled and dened 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 inter-
national community as a whole.
2
The term itself may not be ideal, because
1
Dragan Nikolic (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality
of Arrest, 5 June 2003, paras. 24, 25.
2
Ibid., paras. 24, 25, citing Rosalyn Higgins, Problems and Process (International Law and
How We Use It), Oxford: Clarendon Press, 1995, p. 72.
151
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 court
4
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 Tribunals Statute of
its power to deal with contempt, it possesses an inherent jurisdiction, deriv-
ing 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 interna-
tional 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
Tadic (IT-94-1-AR77), Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 January 2000, para. 13.
7
Jurisdiction, 2 October 1995, paras. 140141.
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 viola-
tions 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 conict 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 qualications 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 conict. As for the SCSL, it is
specically 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 conict.
On other occasions, the tribunals have noted that subject-matter jurisdic-
tion 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
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 conict.
9
10
11
Ibid., para. 57 (citing Sup. Mil. Trib., Italy, 1950; unoYcial transcript).
S U B J E C T- M AT T E R J U R I S D I C T I O N G E N E R A L L Y 153
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 dening international
crimes. The rst 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 univer-
sal 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
pirates operations is the high seas, which is not the right or duty of any nation
to police, he is denied the protection of the ag 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. Dening 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 pub-
lications are declared as international crimes and have been made matters
of international concern.
14
But this clause was dropped in the nal draft,
15
12
A.-G. Israel v. Eichmann, (1968) 36 ILR 277 (Supreme Court of Israel), pp. 291293
(cited in Tadic , ibid., para. 57).
13
SS Lotus (France v. Turkey), [1927] PCIJ Ser. A (Judgments) No. 10 (Judgment No. 9)
(1929).
14
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).
15
GA Res. 96(I).
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 reected 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 perpe-
trators may punish them according to its law applicable to such oVences.
16
But this explanation has its aws. 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 denomi-
nator 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 jur-
isdiction. 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 characterisa-
tion of acts as an international crime: they can be prosecuted retroactively;
they can be prosecuted by courts that would not normally exercise jurisdic-
tion; 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
Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir., 1985).
17
Above, pp. 6067.
18
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.
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 com-
mitted.
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 retro-
activity has been signicant 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 ratied the Genocide Con-
vention during the 1970s, never took the additional step of enacting amend-
ments 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-rst 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 patch-
work. 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 States
territory or because it had signicant eVects on that territory. More excep-
tionally, international law has also allowed States to exercise jurisdiction over
19
20
Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, art. 11(2).
acts committed by their nationals, and over acts of which their own nationals
are victims,
21
even outside their own territory.
Dening 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 signicant
connection with the oVence, something which is known as universal jurisdic-
tion. 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 Inter-
national 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 geno-
cide.
23
This had been proposed by the authors of the original resolutions in
the General Assembly, who lamented in their rst draft the fact that genocide
when committed in time of peace lies within the exclusive territorial jurisdic-
tion 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
SS Lotus (France v. Turkey), [1927] PCIJ Ser. A No. 10 (Judgment No. 9) (7 September
1927).
22
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.
23
William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge:
Cambridge University Press, 2000, pp. 353358.
24
UN Doc. A/BUR/50.
25
UNTS 277.
not resolve diYculties with respect to the ad hoc tribunals because none of
them properly accepted the jurisdiction of these institutions.
26
The third signicant result of the recognition of an oVence as an interna-
tional crime is that it imposes duties upon States with respect to investigation,
prosecution and extradition. This is sometimes expressed with a Latin expres-
sion, 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 sub-
set 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 Treat-
ment 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 nd any real
evidence in the practice of States to suggest that they consider themselves to
be under such obligations.
The nal signicant result of the classication of an act as an international
crime is a relaxation of the rules on immunities. The Charter of the Nurem-
berg Tribunal declared that [t]he oYcial position of defendants, whether as
Heads of State or responsible oYcials in Government Departments, shall not
26
In the case of Sierra Leone, this issue does not arise because genocide is not within the
Special Courts subject-matter jurisdiction.
27
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.
28
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, GA Res. 39/46, annex, art. 5(2).
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 jurisdic-
tion 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 immu-
nity 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 inter-
national body by the Government of Sierra Leone, then the provision in the
Courts 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
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.
30
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9.
31
February 2002, para. 61. This largely overturned a somewhat more liberal ruling by the
United Kingdoms 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.
32
33
Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras.
2634; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998.
S U B J E C T- M AT T E R J U R I S D I C T I O N G E N E R A L LY 159
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 conrming 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
6
Genocide
The crime of genocide is included, in identical provisions, within the subject-
matter 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 conict in Bosnia and Herzegovina. As early as August 1992, the Commis-
sion on Human Rights called on States to consider the extent to which the
acts committed in Bosnia and Herzegovina and in Croatia constitute geno-
cide.
1
In its December 1992 resolution on the situation in Bosnia and
Herzegovina, the United Nations General Assembly described ethnic cleans-
ing 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 signicant 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 rst time in its
history).
7
When the Security Council created the ICTR, in somewhat marked
1
Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc. A/RES/
47/147.
2
The Situation in Bosnia and Herzegovina, UN Doc. A/RES/47/121.
3
Ibid.
4
Samantha Power, A Problem From Hell: America and the Age of Genocide, New York:
Basic Books, 2002.
5
UN Doc. E/CN.4/1995/7 and Corr.1. The Special Rapporteur conrmed his ndings 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.
6
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 Resolu-
tion 935 (1994), UN Doc. S/1994/1405, annex.
7
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
161
contrast with the ICTY, it expressed concern that genocide and other sys-
tematic, widespread and agrant 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 rst 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 Secretary-
General 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 identied 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 recommenda-
tion, 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 indict-
ment 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
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).
8
UN Doc. S/RES/955 (1994), preambular para. 3.
9
Ibid., para. 1.
10
Leone, UN Doc. S/2000/915, para. 13. Perhaps it is also of some signicance that
Sierra Leone has never ratied the Convention for the Prevention and Punishment of
the Crime of Genocide.
11
12
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
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 specic indictment.
13
The rst 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 nally
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 rst substantial body of
case law interpreting and applying the legal concept of genocide.
Raphael Lemkin coined the word genocide in his book on Nazi persecu-
tion 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 denes 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 modications, into the statutes
of the ICTY and ICTR:
1. The International Tribunal shall have the power to prosecute persons
committing genocide as dened in paragraph 2 of this article or of
committing any of the other acts enumeratedinparagraph3 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:
Wald, 5 July 2001, para. 2; Blas kic (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.
13
Nikolic (IT-94-2-R61), Review of Indictment Pursuant to Rule 61, 20 October 1995,
para. 34.
14
Jelisic (IT-95-10-T), Judgment, 14 December 1999.
15
Krstic (IT-98-33-T), Judgment, 2 August 2001.
16
Krstic (IT-98-33-A), Judgment, 19 April 2004 (but for aiding and abetting).
17
Stakic (IT-97-24-T), Judgment, 31 July 2003; Branin (IT-99-36-T), Judgment, 1
September 2004; Blagojevic (IT-02-60-T), Judgment, 17 January 2005 (convicted of
complicity in genocide).
18
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,
Proposals for Redress, Washington: Carnegie Endowment for International Peace, 1944.
19
GA Res. 96(I).
20
UNTS 277. On the drafting of the Genocide Convention, and its subsequent interpre-
tation, see: William A. Schabas, Genocide in International Law: The Crime of Crimes,
Cambridge: Cambridge University Press, 2000.
G E N O C I D E 163
a. killing members of the group;
b. causing serious bodily or mental harm to members of the group;
c. deliberately inicting 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 denition 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 reected
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 conict 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
specic intent to destroy in whole or in part a national, ethnical, racial or
religious group as such. The tribunals have called this genocides special
intent
21
or dolus specialis,
22
terms familiar to jurists in common law and
21
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 498, 499, 510, 517; Stakic (IT-
97-24-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, 140143; 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.
22
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:
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 qualied geno-
cides specic intent as the distinguishing characteristic of this particular
crime under international law.
24
The Sikirica Trial Chamber accused the
ICTYs 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 rst 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 specic 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 identied by the Prosecution. In the light, therefore, of
the explanation that the provision itself gives as to the specic 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 denition 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
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999; Jelisic (IT-95-10-
T), 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; Milos evic (IT-02-54-T),
Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 119; Krstic (IT-98-
33-A), Judgment, 19 April 2004, para. 141; Jelisic (IT- 95-10-A), Judgment, 5 July 2001,
paras. 11, 31, 38, 4245, 5051; Kamuhanda (ICTR-95-54A-T), Judgment, 22 January
2004, para. 622.
23
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 520.
24
Report of the International Law Commission on the Work of its Forty-eighth Session, 6
May26 July 1996, UN Doc. A/51/10, pp. 8788. Also: Report of the International Law
Commission on the Work of its Forty-seventh Session, 2 May21 July 1995, UN Doc. A/
50/10, p. 43, para. 79.
25
para. 60.
26
Branin (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. 3334.
27
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 970 (emphasis in the origi-
nal). Also: Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 41.
G E N O C I D E 165
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 denition 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 denition of genocide could encompass the forcible transfer of a
population:
The Trial Chamber nds 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 rela-
tionship with other groups, the relationship with the land. The Trial
Chamber nds 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 recon-
stitute itself particularly when it involves the separation of its members.
In such cases the Trial Chamber nds that the forcible transfer of indivi-
duals 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 decient, because it rests on a
speculative premise, namely that forcible transfer of individuals could lead to
28
Krstic (IT-98-33-T), Judgment, 2 August 2001, paras. 576, 580. Also: Krstic (IT-98-33-A),
Judgment, 19 April 2004, para. 25; Branin (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.
29
Krstic (IT-98-33-A), Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004,
paras. 4554.
30
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 666.
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 conating the intent of forcible displacement with that of physical
destruction.
31
The decisions in Blagojevic and Branin reect the two extre-
mes on the issue in the aftermath of the Appeals Chamber ruling in Krstic .
The Prosecutor did not appeal the portions of the Branin 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 Statutes 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 denition of genocide refers to the specic intent, the
issue of knowledge has not attracted much judicial attention, although there
is surely an implied nding in all of the ICTR convictions for genocide that
the oVender knew the destruction of the group would occur in the ordinary
31
Branin (IT-99-36-T), Judgment, 1 September 2004, paras. 969991.
32
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.
33
G E N O C I D E 167
course of events. The distinction between intent and knowledge is funda-
mental to the reasoning of the ICTYAppeals 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 signicance, because a person who assists another know-
ing 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 awed.
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 conict, but both tribunals have been vexed somewhat
by categorising the victims. In its early judgments, the ICTR seemed to have
diYculty describing Rwandas 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 qualication of the Tutsi as an ethnic group.
36
Although much heralded
in 1998 for enlarging the narrow bounds of the denition in the 1948 Con-
vention, the Akayesu Trial Chambers 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 ts 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
Krstic (IT-98-33-A), Judgment, 19 April 2004, paras. 134, 140; Ntakirutimana (ICTR-96-
10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 500.
35
Guenael Mettraux, International Crimes and the Ad Hoc Tribunals, Oxford: Oxford
University Press, 2005, pp. 212215.
36
37
But note the revival of this theory by the Darfur Commission: Report of the Interna-
tional Commission of Inquiry on Violations of International Humanitarian Law and
Human Rights Law in Darfur, UN Doc. S/2005/60, para. 498.
38
39
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 559.
40
Ibid., paras. 555556. Also: Branin (IT-99-36-T), Judgment, 1 September 2004, para. 682.
political and social groups, is adequately addressed within the parameters of
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 identied in subpara-
graphs (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 signicant, 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 impor-
tant 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 nite 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
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.
42
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 684 (references omitted).
43
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.
44
Jelisic (IT-95-10-T), Judgment, 19 October 1999; also Bagilishema (ICTR-95-1A-T),
Judgment, 7 June 2001, paras. 5659.
45
para. 65.
46
G E N O C I D E 169
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 perpe-
trator 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 signicant
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 signicant 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 signicance to their com-
munity, 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 signicant 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 groups survival criterion. The Krstic judgment explains:
47
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.
48
Karadzic et al. (IT-95-18-R61, IT-95-5-R61), Transcript, 27 June 1996, p. 15 (the Prose-
cutor (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.
49
50
para. 80.
Granted, only the men of military age were systematically massacred, but
it is signicant 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 signicant 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 signicant 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 signicant 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 ICTYentertained 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 specic 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
Jelisic (IT-95-10-A), Judgment, 5 July 2001, para. 48.
54
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 98, fn. 114.
G E N O C I D E 171
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 specic or special intent. It said the expres-
sion has eVet utile of drawing a clear distinction between mass murder and
crimes in which the perpetrator targets a specic group because of its nation-
ality, 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 ve 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 rst 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
The International Criminal Courts 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.
56
Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 53. Citing: William
A. Schabas, Genozid im Volkerrecht, Hamburg: Hamburger Institute, 2003, pp. 340
341; Schabas, Genocide in International Law, pp. 254255.
57
Ibid. Also: Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December
2004, para. 363.
58
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. 101104, another Trial
Chamber purported to discuss the actus reus of killing, but in fact addressed only the
diYculties in dening the mental element.
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 benet from the more favour-
able 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 ver-
sion.
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 inict serious bodily injury in reckless disregard
of human life.
65
While there must be proof that a person is dead, this can be
59
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 500501. Also: Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 50; Musema (ICTR-96-
13-T), Judgment and Sentence, 27 January 2000, para. 155; Bagilishema (ICTR-95-1A-
T), Judgment, 7 June 2001, para. 57.
60
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 104.
61
62
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323324; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, paras. 229, 236; Blas kic (IT-95-14-T), Judgment, 3
63
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323324; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, paras. 236, 229; Blas kic (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.
64
65
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 36; Delalic et al. (IT-96-
21-A), Judgment, 20 February 2001, para. 422; Kordic et al. (IT-95-14/2-T), Judgment, 26
G E N O C I D E 173
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 dened this as harm that seriously injures the health, causes
disgurement 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 provisions 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 specic intent to destroy, in whole or in part, a
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. 8081; Musema (ICTR-
96-13-T), Judgment and Sentence, 27 January 2000, para. 215. Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, paras. 136140; Bagilishema (ICTR-95-
1A-T), Judgment, 7 June 2001, para. 84; Kupres kic et al. (IT-95-16-T), Judgment, 14
January 2000, para. 560; Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 485; Blas kic
(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 eVec-
tively rules out any requirement of premeditation. The debate on this issue is considered
under the heading of crimes against humanity, below at p. 198.
66
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 326 (referring to murder, but
the same considerations apply to wilful killing).
67
68
69
Karadzic 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.
70
71
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.
particular group, targeted as such. Indeed, rape and sexual violence
certainly constitute iniction of serious bodily and mental harm on the
victims and are even, according to the Chamber, one of the worst ways of
inict[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 satised 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, specically
targeting Tutsi women and specically 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. ATutsi woman, married to a Hutu, testied 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 Inter-
ahamwe 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: dont ever ask again what a Tutsi
woman tastes like. This sexualised representation of ethnic identity gra-
phically 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 nds 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 testied 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 inicted on the few who
72
73
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,
G E N O C I D E 175
survived the Srebrenica massacre to fall within the ambit of bodily and mental
harm. Even if the objective had been killing rather than inicting 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 con-
sequence 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 nds that the men suVered mental harm having their identica-
tion 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
elds 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 inicting 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
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; Branin (IT-99-36-T), Judgment, 1 September 2004,
para. 690. See also: B. Bryant and R. Jones, Codication of Customary International
Law in the Genocide Convention, (1975) 16 Harvard International Law Journal 686, at
pp. 694695.
74
75
76
Ibid., paras. 648649.
77
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 calcu-
lated 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 Proce-
dure 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 denition of genocide, as well as within
paragraph (b).
78
Stakic (IT-97-24-PT), Second Amended Indictment, 5 October 2001, para. 20; Akayesu
(ICTR-96-4-T), Judgment, 2 September 1998, paras. 505506.
79
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. 115116.
80
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. 156157.
81
Kovac evic et al. (IT-97-24-I), Indictment, 13 March 1997, paras. 1216; Kovac evic et al.
(IT-97-24-I), Amended Indictment, 23 June 1998, paras. 28, 32. Also: Karadz ic et al. (IT-
95-5-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.
82
para. 42.
83
Rule 61 of the Rules of Procedure and Evidence, 11 July 1996.
84
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.
G E N O C I D E 177
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 mothers 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 fth and nal 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 conicts 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 corre-
sponds to article III of the Genocide Convention. In addition to genocide per
se, it says that conspiracy, direct and public incitement, attempt and compli-
city 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
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 507508. 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 (ICTR-
96-13-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.
86
Below at pp. 296314.
With respect to genocide, there are legal diYculties that arise in reconciling
the general provision on complicity in the statutes with the specic 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 parti-
cipation 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 signicance 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
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 Con-
icts, (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
Conicts, (1979) 1125 UNTS 609).
89
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 185191;
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.
G E N O C I D E 179
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 indivi-
duals who have a common purpose and are acting within a unied
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 inde-
pendently 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 con-
siders 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 geno-
cide 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
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.
92
Nyiramasuhuko et al. (ICTR-98-42-T), Decision on Defence Motions for Acquittal
Under Rule 98bis, 16 December 2004, para. 97.
93
94
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
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 commis-
sion 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 nds 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 signicant feature of the conicts 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
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.
95
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).
96
97
Followed by the Supreme Court of Canada in Mugesera v. Canada (MCI), 2005 SCC 40,
para. 85.
98
See: William A. Schabas, Hate Speech in Rwanda: The Road to Genocide, (2000) 46
McGill Law Journal 141.
G E N O C I D E 181
form and specically provoke another to engage in a criminal act, and that
more than mere vague or indirect suggestion goes to constitute direct
incitement.
99
ATrial Chamber dismissed a count of direct and public incitement to commit
genocide at the close of the Prosecutors 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 conrming 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 incite-
ment to commit genocide. The three were involved in various media, includ-
ing the radio station Radio-television 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
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 556557. Also Niyitegeka
(ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 431; Nahimana et al.
100
Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal, 2
101
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 560; Kambanda (ICTR-97-
23-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.
102
103
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.
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 persons 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 propa-
ganda 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
Ina conclusionof 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 sec-
ondary 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 plan-
ning, 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 signicance was attached to
this when the statutes were being drafted, and that it is the innocent conse-
quence of the verbatim incorporation of article III of the Genocide Conven-
tion 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 conict 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
Ibid., para. 1074.
106
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.
107
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 640; Semanza (ICTR-97-20-T),
Judgment and Sentence, 15 May 2003, para. 391.
G E N O C I D E 183
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 denition ac-
corded 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 compli-
city 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
signicant, 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
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.
109
110
Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 139.
111
Milos evic (IT-02- 54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004,
para. 297.
112
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004,
para. 500.
113
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.
114
Jelisic (IT-95-10-T), Judgment, 14 December 1999; Stakic (IT-97-24-T), Judgment, 31
July 2003, para. 561.
115
See pp. 302314.
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 human-
ity, and while such statements may be an oversimplication, 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 convic-
tions 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
3
The real umbrella rule of the tribunals is the
prohibition of crimes against humanity, a relatively broad concept that cap-
tures most forms of atrocity committed against innocent civilians, includ-
ing war crimes in the classic sense.
4
If the statutes of the three tribunals
only contemplated crimes against humanity within their subject-matter
1
Generally, see: Simon Chesterman, An Altogether DiVerent Order: Dening the Ele-
ments of Crimes Against Humanity, (2000) 10 Duke Journal of Comparative and Inter-
national Law 307; M. Cherif Bassiouni, Crimes Against Humanity, 2nd edn, Dordrecht/
Boston/London: Kluwer Law, 1999; Guenael Mettraux, International Crimes and the Ad
Hoc Tribunals, Oxford: Oxford University Press, 2005, pp. 147192.
2
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.
3
In fact, there is only one conviction for war crimes [along with crimes against human-
ity]: Strugar (IT-01-42-T), Judgment, 31 January 2005.
4
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.
185
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 reects this.
Prosecutions for crimes against humanity have provided the tribunals
with the opportunity to turn a set of abstract concepts into a fully edged
and well-dened 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 rst 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 rst codication 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 conict, whether international or internal in char-
acter, 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 Nur-
emberg Charter also required a link or nexus with any crime within the
jurisdiction of the Tribunal, which had the practical consequence of prevent-
ing convictions except for crimes against humanity committed in association
5
Mettraux, International Crimes and the Ad Hoc Tribunals, p. 148.
6
(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 jurisdic-
tion of the Tribunal, whether or not in violation of the domestic law of the court where
perpetrated.
7
E.g., Theodor Meron, War Crimes in Yugoslavia and the Development of International
with the war itself.
8
Although Nuremberg heard much evidence about pre-
1939 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 conict, 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 conict 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
SCSLs 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 conict
Only the ICTY Statute refers to the presence of armed conict, stating in the
introductory paragraph to article 5 that crimes against humanity are punish-
able when committed in armed conict, 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 conict would violate the maxim nullum crimen sine lege.
9
In Tadic , the Appeals Chamber said this requirement of armed conict was
8
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.
9
See the Secretary-Generals report: Crimes against humanity are aimed at any civilian
population and are prohibited regardless of whether they are committed in an armed
conict, international or internal in character. Report of the Secretary-General Pur-
suant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704
(1993), para. 47.
C R I M E S A G A I N S T H U M A N I T Y 187
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
Tribunals Statute and imposing the additional jurisdictional requirement
that crimes against humanity be committed in armed conict, the Security
Council intended to limit the jurisdiction of the Tribunal to those crimes
which had some connection to armed conict 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
conict was still, in 1993, an element of the customary law concept of crimes
against humanity.
The cases have described the presence of an armed conict 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
conict, comparable to the situation with respect to war crimes.
14
Rather, all
that is necessary is proof there was an armed conict and that objectively
the acts of the accused are linked geographically as well as temporally with
the armed conict.
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 conict
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 conict 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
conict. All that is required under Article 5 of the Statute is that the
prosecution establish that an armed conict is suYciently related to the
Article 5 crime with which the accused is charged. While, as previous
10
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.
11
12
S
es elj (IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning Jurisdic-

tion, 31 August 2004, para. 13. See: Larry D. Johnson, Ten Years Later: Reections on
the Drafting, (2004) 2 Journal of International Criminal Justice 368, at p. 372.
13
14
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 33. See: Guenael
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. 263268.
15
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 83. Also: Kordic et al. (IT-
95-14/2-T), Judgment, 26 February 2001, para. 23.
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
conict, the Prosecution must establish a connection between the Article 5
crime itself and the armed conict. Consistently with the object of the
purpose of the Tribunals Statute, the jurisdictional requirement that
Article 5 crimes be committed in armed conict requires the Prosecution
to establish that a widespread or systematic attack against the civilian
population was carried out while an armed conict 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 conict, the point has been of little practical
signicance.
This issue will present some diYculties, however, with respect to prosecu-
tions for crimes against humanity committed after the Dayton Peace Agree-
ment in late 1995 and prior to the outbreak of armed conict 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 indict-
ment states: No later than early 1998, after years of increasing tension and
violence, armed conict 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 Prosecutors case in Milos evic , the amici curiae argued that
there was no evidence of armed conict 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 ghting force, that
it controlled territory in Kosovo, and that there was armed conict of
considerable intensity, the Trial Chamber dismissed the motion.
18
Any civilian population
Reecting the Nuremberg Charters denition of crimes against humanity, all
three statutes require that they be directed against any civilian population.
These words clarify Nurembergs great innovation with respect to interna-
tional criminal law, namely, that individuals associated with an oppressive
State apparatus could be prosecuted for crimes committed against their own
16
S
es elj (IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning Jurisdic-

tion, 31 August 2004, para. 14.
17
Limaj et al. (IT-03-66-PT), Second Amended Indictment, 6 November 2003, para. 4.
18
Milos evic (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004,
paras. 1440.
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 species 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 denition of civilian in article 50 of Additional Protocol I has been
used as a reference, as it is said to reect customary law.
26
In Blas kic , a Trial
19
On this point, see Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 33.
20
21
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, para. 235.
22
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 90. Also: Naletilic et al. (IT-
98-34-T), Judgment, 31 March 2003, para. 235; Semanza (ICTR-97-20-T), Judgment
and Sentence, 15 May 2003, para. 330.
23
Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 80.
24
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 180. Also: Jelisic (IT-95-
10-T), Judgment, 14 December 1999, para. 54; Kupres kic et al. (IT-95-16-T), Judgment,
14 January 2000, para. 549; Blas kic (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-97-
20-T), Judgment and Sentence, 15 May 2003, para. 330; Akayesu (ICTR-96-4-T), Judg-
ment, 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.
25
Antonio Cassese, International Criminal Law, Oxford: Oxford University Press, 2003,
p. 87.
26
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 110; Kordic et al. (IT-95-14/2-A),
Judgment, 17 December 2004, para. 97.
Chamber said crimes against humanity can also be perpetrated against mem-
bers 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 denition 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 specied in the
text of its Statute, the ICTY judgments have also imposed this condition.
31
The Secretary-Generals 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
Blas kic (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. 127129; Kupres kic
et al. (IT-95-16-T), Judgment, 14 January 2000, para. 548. See the discussion in
Chesterman, An Altogether DiVerent Order, at pp. 322325.
28
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 127129.
29
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 547549; Jelisic (IT-95-
10-T), Judgment, 14 December 1999, para. 54.
30
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 568.
31
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-95-14/2-
A), Judgment, 17 December 2004, para. 106; Blas kic (IT-95-14-A), Judgment, 29 July
2004, para. 98.
grounds.
32
The widespread or systematic language is also reected 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 dened as massive, frequent, large scale
action, carried out collectively with considerable seriousness and directed
against a multiplicity of victims.
34
Awidespread 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 orga-
nised 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
tion 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.
33
Blas kic (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.
34
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 (ICTR-
96-13-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.
35
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 179; Kordic et al. (IT-95-
14/2-A), Judgment, 17 December 2004, para. 94.
36
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 94; Naletilic et al. (IT-98-
34-T), Judgment, 31 March 2003, para. 236; Akayesu (ICTR-96-4-T), Judgment, 2
September 1998, paras. 578579; Rutaganda (ICTR-96-3-T), Judgment and Sentence,
6 December 1999, para. 67.
37
Le tribunal international pour le Rwanda est habilite a` juger les personnes presumees
responsables des crimes suivants lorsquils ont ete commis dans le cadre dune attaque
generalisee et systematique. 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.
38
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. 122123, n. 28; Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 68; Musema (ICTR-96-
13-T), Judgment and Sentence, 27 January 2000, para. 203; Bagilishema (ICTR-95-1A-
T), Judgment, 7 June 2001, para. 77; Ntakirutimana et al. (ICTR-96-10 & ICTR-96-17-
T), 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.
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 perpe-
trated, 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 signicant 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 specic 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 rst 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 Chambers view of the requirements of customary inter-
national law and the text of the Rome Statute, which in earlier rulings the
ad hoc tribunals have sometimes cited as an authoritative codication 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
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.
40
Blas kic (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.
41
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 94; Blas kic (IT-95-14-
A), Judgment, 29 July 2004, para. 101, referring to Kunarac et al. (IT-96-23/1-A),
Judgment, 12 June 2002, para. 96.
42
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 98. Also: Blas kic (IT-95-14-
A), Judgment, 29 July 2004, para. 120; Kordic et al. (IT-95-14/2-A), Judgment, 17
43
44
For discussion of this issue, see: Mettraux, Crimes Against Humanity, at pp. 270282.
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,
Although the term attack may appear to connote the existence of an
armed conict, this is not a requirement, and the two concepts are distinct
and independent:
45
The attack has been dened as a course of conduct
involving the commission of acts of violence. The attack can precede, outlast,
or continue during the armed conict, but need not be a part of the conict
under customary international law.
46
It is not limited to an armed attack,
and may involve any mistreatment of the civilian population, and even non-
violent 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 specic 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
vol. I, Ardsley, NY: Transnational Publishers, 2005, pp. 151152; Bassiouni, Crimes
Against Humanity, pp. 243281.
45
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 30.
46
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, para. 233; Akayesu (ICTR-96-4-
T), Judgment, 2 September 1998, para. 581; Kunarac et al. (IT-96-23/1-A), Judgment, 12
June 2002, para. 86.
47
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, paras. 29, 30; Kunarac et al. (IT-
96-23/1-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.
48
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
49
50
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 550; Kordic et al. (IT-95-
14/2-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.
51
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 102, 410; Krnojelac (IT-
97-25-T), Judgment, 15 March 2002, para. 59; Tadic (IT-94-1-A), Judgment, 15 July
1999, para. 271; Blas kic (IT-95-14-T), Judgment, 3 March 2000, paras. 244247; 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. 133134; Ruggiu (ICTR-97-32-I), Judgment and
Sentence, 1 June 2000, paras. 1920; 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. 99100.
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 Blas kic :
It follows that the mens rea specic to a crime against humanity does not
require that the agent be identied 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 imple-
mentation of the ideology, policy or plan. This specically 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 dening
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 conrm a controversial nding by the Supreme Court of
Canada in one of the rare national prosecutions for crimes against human-
ity.
55
But there is no requirement that the oVender have detailed knowledge
of the attack
56
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
Blas kic (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.
55
R v. Finta, [1994] 1 SCR 701. An ICTY Trial Chamber relied on Finta in Tadic (IT-
94-1-T), Opinion and Judgment, 7 May 1997, para. 657; also Blas kic (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!
56
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 102; Krnojelac (IT-97-25-
T), Judgment, 15 March 2002, para. 59.
57
58
Blas kic (IT-95-14-T), Judgment, 3 March 2000, paras. 258259.
59
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 122123, n. 28.
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-Generals Report to the Security Council on
establishment of the ICTY described crimes against humanity as acts com-
mitted 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
Reecting evolving views on the subject, there is no such
requirement in the SCSL Statute, nor any reference to the issue in the
Secretary-Generals report on the SCSL Statute. The issue also presents itself
with respect to the specic 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 identies an inten-
tion to engage in specic prohibited conduct or to cause a prohibited conse-
quence 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 conrm 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 reect an uncertain position in international
60
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 270, 272. Also: Kunarac et al. (IT-96-
23/1-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. 318321.
61
tion 808 (1993), UN Doc. S/25704 (1993), para. 48.
62
UN Doc. S/PV.3217 (25 May 1993).
63
Kvoc ka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 463.
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 discrimi-
natory intent, except in the specic 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 particu-
larly convincing, however. Essentially, the ICTR Appeals Chamber reasoned
that in most cases, crimes against humanity are waged against civilian
populations which have been specically 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-Generals 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
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 283, 292, 305. Also: Blas kic (IT-95-14-
T), Judgment, 3 March 2000, paras. 244, 260; Todorovic (IT-95-9/1), Sentencing Judg-
ment, 31 July 2001, para. 113; Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001,
para. 186.
65
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 447469. Subsequently followed
in: Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 81; Semanza (ICTR-97-
20-T), Judgment and Sentence, 15 May 2003, para. 332; Kamuhanda (ICTR-95-54A-T),
Judgment, 22 January 2004, para. 672.
66
Tadic (IT-94-1-A), Judgment, 15 July 1999, para 297.
67
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 464.
68
tion 955 (1994), UN Doc. S/1995/134, para. 12.
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 denition 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 nal act, of the category other inhumane acts.
Murder
All three statutes list murder as the rst 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 ICTYand 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 French-
language versions of the denition of crimes against humanity, notably the
draft Code of Crimes adopted by the International Law Commission in
1996
71
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
Review of Penal Law 211, at p. 220. Also: Johnson, Ten Years Later, at p. 372.
70
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 conrmed with reference to the French version of the Geneva Conven-
tions themselves, which translate murder as meurtre. The issue is discussed in some
detail in Chesterman, An Altogether DiVerent Order, at pp. 329330.
71
Report of the International Law Commission on the Work of its Forty-eighth Session,
6 May26 July 1996, UN Doc. A/51/10, p. 118, art. 18.
72
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1)
(a).
73
Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, paras. 8485; Kayishema et al.
(ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 138139; Ntakirutimana
et al. (ICTR-96-10 & ICTR-96-17-T), Judgment, 21 February 2003; Semanza (ICTR-97-
20-T), Judgment and Sentence, 15 May 2003, paras. 334339.
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 Blas kic concluded that
murder (meurtre) and not premeditated murder (assassinat) was the under-
lying oVence of a crime against humanity.
75
Citing Blas kic , an ICTY Trial
Chamber in Kordic said it is now settled that premeditation is not required.
76
But in Kupres kic , 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 rearm, or less directly, by creating conditions
provoking the victims death.
79
The crime against humanity of extermination
lls 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
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 214; Ruta-
ganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 79; Akayesu
(ICTR-96-4-T), Judgment, 2 September 1998, para. 588.
75
Blas kic (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;
76
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 235236.
77
78
Above at pp. 172174.
79
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 499. Also: Rutaganda (ICTR-96-3-
T), Judgment and Sentence, 6 December 1999, paras. 8384; 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. 812813; Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, para. 144; Niyitegeka (ICTR-96-14-T),
80
Chesterman, An Altogether DiVerent Order, at pp. 336337.
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 signicant 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 conned
to national, ethnic, racial or religious groups.
84
The Rome Statute provides a
brief denition of the term, which is somewhat inspired by the genocide
provision, declaring that it includes the intentional iniction 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 extermina-
tion 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-by-
case 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 nal
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
para. 542.
82
83
84
85
86
paras. 518, 521.
87
88
Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 89; Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, para. 144; Semanza (ICTR-97-20-T),
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 ICTYAppeals 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
denitions 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) dened 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 deni-
tion 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
Ibid., para. 228.
92
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. 228229.
93
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 394. Also: Blagojevic (IT-02-
94
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 108. See below at pp. 281282.
95
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 enslave-
ment as a crime against humanity.
96
97
Also Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 350.
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 conrmed that the traditional
concept of slavery, as dened 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 conicts. 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 follow-
ing provisions shall be respected as a minimum with regard to persons
deprived of their liberty for reasons related to the armed conict, whether
they are interned or detained . . . (e) they shall, if made to work, have the
benet 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 non-
derogable 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
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(2)(c).
99
Elements of Crimes, ICC-ASP/1/3, p. 108, art. 7(2)(c).
100
101
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras.
542543.
forced or compulsory labour or service is without remuneration, and fre-
quently, 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 identied, such
as elements of control and ownership, restriction or control of an individuals
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
victims 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
102
Ibid., para. 542.
103
Ibid., para. 542.
104
105
Ibid., para. 121.
106
Ibid., para. 119.
107
The crime is further dened 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.
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 reect 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. Never-
theless, 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 envi-
saged, 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 denes 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 deni-
tion a temporary and provisional measure and the law requires that indivi-
duals 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
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 532. See also Kupres kic et al. (IT-95-
16-T), Judgment, 14 January 2000, para. 566; Milos evic (IT-02-54-T), Decision on
Motion for Judgment of Acquittal, 16 June 2004, para. 52.
109
110
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, paras. 222223. 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; Milos evic (IT-02-54-T),
Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 6869.
111
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 595, fn. 1962.
112
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(2)(d).
113
UNTS 287, art. 49(2); Protocol Additional to the 1949 Geneva Conventions and Relat-
ing to the Protection of Victims of Non-International Armed Conicts, (1979) 1125
UNTS 609, art. 17(1).
114
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 justication 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 justication for the detention.
116
According to the ICTY Appeals
Chamber in Kordic and C
erkez, imprisonment in Article 5(e) of the Statute

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 popula-
tion.
117
There have been only a few prosecutions before the ICTY for impri-
sonment 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 denition 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 signicant dis-
tinctions with respect to interpreting the term torture within the context of
these diVerent categories of international crime.
The international crime of torture has been dened in the case law of
the tribunals as involving the iniction, 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 denition is largely derived from international human
rights instruments, specically the 1975 Declaration on the Protection of All
115
116
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 115; Kordic et al. (IT-95-14/2-
T), Judgment, 26 February 2001, paras. 302303.
117
118
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 142. Also: Krnojelac (IT-
97-25-T), Judgment, 15 March 2002, para. 179; Furundzija (IT-95-17/1-A), Judgment,
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 Torture
120
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 denition 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 spe-
cically mentioned in the Nuremberg Charter, but it was expressly classied as
a crime against humanity in Allied Control Council Law No. 10.
123
As an
ICTY Trial Chamber pointed out in Furundzija, no State has ever claimed that
it was authorised to practice torture in time of armed conict, nor has any
State shown or manifested opposition to the implementation of treaty provi-
sions 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
21 July 2000, para. 111; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January
2000, para. 285.
119
GA Res. 3452(XXX).
120
OASTS 67.
121
GA Res. 39/46, annex.
122
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 Fur-
undz ija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 159160, which provides a
detailed justication for this.
123
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, 5055, art. 2(a).
124
125
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 142, 155.
126
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 470; Kvoc ka et al. (IT-98-
30/1-T), Judgment, 2 November 2001, para. 153.
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 iniction 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 inicting the severe pain or suVering.
129
The list of
prohibited purposes in the denition 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 denition.
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 denition 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 Kvoc ka, 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 inicted in the case of torture that
sets it apart from similar oVences. In assessing the seriousness of such mis-
treatment, it has been held that the objective severity of the harm inicted
must rst 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 victims age, sex or state of
health.
133
According to one ICTY Trial Chamber,
127
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 140.
128
129
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 153; Kunarac et al. (IT-
96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 486.
130
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 494496. Also: Fur-
undz ija (IT-95-17/1-T), Judgment, 10 December 1998, para. 162; Furundzija (IT-95-17/
1-A), Judgment, 21 July 2000, para. 111; Akayesu (ICTR-96-4-T), Judgment, 2 Septem-
ber 1998, paras. 593595, 681.
131
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 148; Krnojelac (IT-97-25-
132
Kvoc ka 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. 342343. Also: Kvoc ka
et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 280284.
133
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 142143.
[w]hen assessing the seriousness of the acts charged as torture, the Trial
Chamber must take into account all the circumstances of the case, includ-
ing the nature and context of the iniction 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 Kvoc ka, a Trial
Chamber wrote: [B]eing forced to watch serious sexual attacks inicted on
a female acquaintance was torture for the forced observer. The presence of
onlookers, particularly family members, also inicts 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
inicted. Rape is . . . such an act . . . Sexual violence necessarily gives rise to
severe pain or suVering, whether physical or mental, and in this way
justies its characterisation as an act of torture. Severe pain or suVering,
as required by the denition 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 inicted 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 signicant development in public international
law. In Furundzija, 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
Ibid., para. 149.
137
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 149151.
138
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 494.
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 denition
varies signicantly. It has also evolved considerably over the years, reecting
changing attitudes towards the nature and gravity of sexual violence.
142
In the
rst of the cases of the ad hoc tribunals to consider the denition of the term,
an ICTR Trial Chamber provided a very broad denition, and one that
probably goes well beyond that of many national criminal codes: The Cham-
ber 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 denes rape as a physical invasion of a sexual
nature, committed on a person under circumstances which are coercive.
143
Shortly afterwards, this denition 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 denition was subse-
quently endorsed in the Elements of Crimes adopted by the Assembly of States
139
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 139, 153.
140
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, 5055, art. 2(a).
141
Below at p. 271
142
See, for example, some recent cases of the European Court of Human Rights: SW v.
United Kingdom, Series A, No. 335-B, paras. 3536; CR v. United Kingdom, Series A, No.
335-B, paras. 3334.
143
144
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 478. Also: Kvoc ka 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. 220221, 226229.
145
Parties of the International Criminal Court.
146
It has since been conrmed
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 species that: no corroboration of the victims
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 per-
petrators 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 victims 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
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 gender-
neutral.
147
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 128; Kvoc ka et al. (IT-98-
30/1-A), Judgment, 28 February 2005, para. 395. See also: Semanza (ICTR-97-20-T),
Judgment and Sentence, 15 May 2003, paras. 344345; Kamuhanda (ICTR-95-54A-T),
Judgment, 22 January 2004, paras. 707709.
148
149
150
Ibid., para. 127132.
151
Ibid., paras. 127132. For more discussion about Rule 96 of the RPE, see below at
pp. 341343.
152
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.
had been subjected to rape and sexual assault in the Susica camp.
153
In the
rst 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 consider-
able success, to have access to the victims psychological les. 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 specic 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 denition of rape. Such acts
are also prosecuted under the statutes of the three tribunals as serious viola-
tions 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 tribu-
nals refer to sexual assault, which would seem to be synonymous with sexual
violence.
155
The Secretary-Generals Report on the ICTY Statute referred
to sexual assault.
156
Both the ICTYand ICTR have addressed sexual violence
153
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.
154
ICTR Statute, art. 4(e); SCSL Statute, art. 3(e).
155
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.
156
tion 808 (1993), UN Doc. S/25704 (1993), paras. 48, 88, 108.
not meeting the denition 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 rst 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 con-
text.
159
According to a Trial Chamber, in Kvoc ka, sexual violence is broader
than rape and includes such crimes as sexual slavery or molestation.
160
Some specic acts of sexual violence, drawn from the crimes against
humanity provision in the SCSL Statute, have been dened 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 satised 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 denition of crimes against human-
ity 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 own-
ership over one or more persons, such as by purchasing, selling, lending or
157
E.g., Milos evic (IT-01-51-I), Indictment, 22 November 2001, paras. 32(c), 35(e).
158
159
160
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 175, 180.
161
SCSL Statute, art. 2(g).
162
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 541, fn. 1333.
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 circum-
stances, include exacting forced labour or otherwise reducing a person to a
servile status as dened 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
Conict, 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
Conict has described enforced prostitution as referring to conditions of
control over a person who is coerced by another to engage in sexual activ-
ity.
167
Enforced prostitution is described in the ICC Elements of Crimes as
follows:
163
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 Dormann, Elements of War Crimes Under the Rome
Statute of the International Criminal Court, Sources and Commentary, Cambridge: Cam-
bridge University Press, 2002, pp. 328329.
164
UN Doc. E/CN.4/Sub.2/1998/13, para. 27.
165
Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, paras.
5460; Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004,
paras. 5157. On forced marriage, see: Monika Satya Kalra, Forced Marriage: Rwandas
Secret Revealed, (2001) 7 UC Davis Journal of International Law and Policy 197.
166
SCSL Statute, arts. 2(e), 3(g); ICTR Statute, art. 4(e).
167
UN Doc. E/CN.4/Sub.2/1998/13, para. 27.
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 persons 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 Statutes list of crimes against humanity is forced pregnancy.
According to article 7(2)(f) of the Rome Statute, [f]orced pregnancy
means the unlawful connement, 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 indict-
ments 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 exible provision enabling it to incorporate unco-
died 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 full 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
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 Dormann, Elements of War Crimes, p. 329.
169
SCSL Statute, art. 2(g).
170
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 578; Rutaganda (ICTR-96-
3-T), Judgment and Sentence, 6 December 1999, para. 66; Musema (ICTR-96-13-T),
Judgment and Sentence, 27 January 2000, para. 201.
No similar provision is found in the ICTYand 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 dene, as an act of crime against humanity,
[p]ersecutions on political, racial and religious grounds.
172
The language is
taken verbatim from the denition of crimes against humanity in the Nur-
emberg 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 identiable group or collectiv-
ity on political, racial, national, ethnic, cultural, religious, gender as dened
in paragraph 3, or other grounds that are universally recognized as imper-
missible 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 denition does not appear to have been inuential 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
ICTR Statute, art. 4(e), and, by implication, ICTY Statute, art. 3.
172
ICTY Statute, art. 5(h); ICTR Statute, art. 3(h).
173
SCSL Statute, art. 2(h). It also uses the term persecution in the singular, an apparently
inadvertent modication of no legal signicance.
174
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 identied 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.
175
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1)(h).
176
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 579581.
177
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 621. Also: Krstic (IT-98-
33-T), Judgment, 2 August 2001, para. 534.
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
political grounds.
178
In Kordic and C
erkez, the ICTYAppeals Chamber dened

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, specically
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 specic 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 signicant one.
186
This discriminatory intent
must be established with respect to the specic act that is charged rather than
178
179
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 101. Also: Blas kic (IT-
95-14-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.
180
181
182
Ibid., para. 201.
183
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 248. Also: Krnojelac (IT-97-
25-T), Judgment, 15 March 2002, para. 435.
184
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 435; Vasiljevic (IT-98-32-T),
Judgment, 29 November 2002, para. 248; Kupres kic et al. (IT-95-16-T), Judgment, 14
January 2000, para. 625.
185
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 248; Krnojelac (IT-97-25-
186
with the attack in general.
187
But in addition to the intent itself, the Prose-
cutor 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 prohib-
ited explicitly either in Article 5 or elsewhere in the Statute.
193
In considering
187
Ibid., para. 249.
188
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 245; Krnojelac (IT-97-25-
189
Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, para. 22; Nahimana et al.
190
For discussion of the crime of direct and public incitement to commit genocide, see
above at pp. 181183.
191
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 185; Kupres kic et al.
(IT-95-16-T), Judgment, 14 January 2000, paras. 618619; Kordic et al. (IT-95-14/2-T),
Judgment, 26 February 2001, paras. 193195; Kordic et al. (IT-95-14/2-A), Judgment, 17
192
193
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 614615. Also: Kvoc ka
et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 185; Krstic (IT-98-33-T),
Judgment, 2 August 2001, para. 535.
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 persecu-
tion.
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. Signicantly, 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 iniction 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 per-
secutions.
202
Persecutions can include crimes that target property, which
194
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 622; Vasiljevic (IT-98-
32-T), Judgment, 29 November 2002, para. 247.
195
196
Ibid., para. 636.
197
Ibid., para. 636.
198
See the discussion on this by the Appeals Chamber in Niyitegeka (ICTR-96-14-A),
Judgment, 9 July 2004, paras. 4755.
199
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 246; Blas kic (IT-95-14-T),
Judgment, 3 March 2000, para. 220.
200
Ibid., para. 234.
201
202
Kvoc ka et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 324325.
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 discrimi-
natory 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 signi-
cance. Although national and ethnic groups are not encompassed within
article 3(h), they will generally t 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
t within the scheme of the ICTR Statute. Such acts are probably not appro-
priately described as genocide, because the progressive Hutu were not mem-
bers 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
This is discussed above under discriminatory intent, above at pp. 196198.
206
207
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 470471.
208
Ibid., para. 471.
activity. In Nahimana, another Trial Chamber did not see any problem tting
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 persecu-
tions. In Blas kic , 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 justied by military necessity
and carried out unlawfully, wantonly and discriminatorily.
210
In Kordic
and C
erkez, the Appeals Chamber said attacks launched deliberately against

civilians or civilian objects may constitute persecutions as a crime
against humanity.
211
It may seem redundant to be making ndings that war
crimes are also crimes against humanity, as the whole purpose behind the
development of the concept of crimes against humanity was to ll 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 at-
tacks 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 dened 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 justied this with reference to
the post-Second World War case law, which included the other enumerated
209
210
211
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 104. Also: Blas kic (IT-
95-14-A), Judgment, 29 July 2004, paras. 157159, referring to Kupres kic et al. (IT-95-
16-T), Judgment, 14 January 2000, para. 627; Krnojelac (IT-97-25-T), Judgment, 15
212
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 105.
213
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. 280281.
214
See, for example, Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 106;
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 inhu-
mane 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, busi-
nesses, 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
fromgovernment.
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 instruments
220
(though not, interestingly enough, by the two Interna-
tional 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
Kupres kic , 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 individuals
215
See Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 604605.
216
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 128172.
217
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 202207; Kvoc ka et al.
(IT-98-30/1-T), Judgment, 2 November 2001, para. 186; Blas kic (IT-95-14-T), Judg-
ment, 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. 119123;
Blas kic (IT-95-14-A), Judgment, 29 July 2004, paras. 143159.
218
219
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 139.
220
221
See: William A. Schabas, The Omission of the Right to Property in the International
Covenants, (1991) 4 Hague Yearbook of International Law 135.
222
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 108; Blas kic (IT-95-14-
A), Judgment, 29 July 2004, para. 149.
223
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 146, citing with approval Kupres kic
et al. (IT-95-16-T), Judgment, 14 January 2000.
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 amount-
ing 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 justied as required
by military necessity.
Other inhumane acts
The crime against humanity of other inhumane acts comes from the Nur-
emberg Charter, and has always been part of the denition, 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 inhu-
mane 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 ICTYAppeals 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 sub-
ordinate must have been motivated by the intent to inict serious bodily or
mental harm upon the victim.
229
The equivalent provision in the Rome
224
225
Ibid., para., 631; Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 146.
226
227
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 563. Also: Blagojevic (IT-
02-60-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.
228
229
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. 271272; Vasiljevic (IT-98-32-T),
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 prose-
cuted 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 prose-
cuted 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 womans breast oV and licking it, and
piercing a womans 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 circum-
stances under which these acts were committed, the Chamber nds 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 persecu-
tion 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 specic category, which
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.
230
7(1)(k).
231
232
233
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 688, 697.
234
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, paras. 934936.
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 specic crimes against human-
ity 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 pop-
ulation,
237
an ICTY Trial Chamber was concerned that interpreting deporta-
tion to include forcible displacement might violate the principle nullum
crimen sine lege. Rather than convict based upon an expansive denition of
deportation, it concluded that forcible displacement within a countrys 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 deniteness, that is to violate the prin-
ciple 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 addi-
tional 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 Chambers nding 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 denition of crimes against humanity albeit in
diVerent provisions so as to convict the accused.
235
236
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001.
237
7(1)(d).
238
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 523. Also: Kupres kic et al. (IT-95-
16-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.
239
October 2002, para. 131 (emphasis in the original).
240
Ibid.
241
Also: Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 563.
There is also something of an overlap between other inhumane acts and
war crimes. In one of the rare ICTY prosecutions for battleeld law, Bosnian
Serb General Galic was convicted of the crime against humanity of inhu-
mane acts for the coordinated and protracted campaign of sniping, artil-
lery, 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 char-
acter 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 pro-
hibited 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 crimin-
ality. 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
Galic (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 151.
243
244
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 conspicu-
ously, 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 identied 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
Hersch Lauterpacht, The Problem of the Revision of the Law of War, (1952) 29 British
Yearbook of International Law 360, at pp. 381382.
2
Theodor Meron, Henrys Wars and Shakespeares 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. 67121.
3
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.
4
Ibid., p. 21.
226
were conrmed when the victorious allies included clauses in the Treaty of
Versailles dealing with post-war prosecutions.
5
Yet they did not nally insist
upon judging German war criminals, and left this to the national courts of
Germany.
6
The rst 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 destruc-
tion of cities, towns or villages, or devastation not justied by military
necessity.
7
The judgment of the International Military Tribunal conrmed
that
the crimes dened 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 pun-
ishable 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 post-
war prosecutions of Nazi criminals: the United Nations War Crimes Commis-
sion. The Charter of the Nuremberg Tribunal established subject-matter
jurisdiction over WAR CRIMES: namely, violations of the laws or customs
5
Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of
Versailles), 1919 TS 4, arts. 228230.
6
Gerd Hankel, Die Leipziger Prozesse, Hamburg: Hamburger Edition, 2003.
7
(1951) 82 UNTS 279, annex, art. VI(b).
8
9
95, at pp. 112, 115, 118, 121.
10
Ibid., p. 112.
11
Ibid., p. 115.
12
Ibid., p. 150.
WA R C R I M E S 227
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 Proto-
cols, 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
conict. 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 aggres-
sion. But the three ad hoc tribunals do not refer to war crimes, and use the
more modern generic term of serious violations of international humani-
tarian 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 conict, essentially introduced by the 1949
Geneva Conventions; and (ii) the correlative notion of international law
of armed conict, or the more recent and comprehensive notion of
international humanitarian law, which has emerged as a result of the
inuence of human rights doctrines on the law of armed conict.
16
By the early 1990s, several sources of international law provided a degree of
codication of the law of war crimes, more specically the war crimes provi-
sion 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 inter-
national armed conicts. One of the great accomplishments of the ad hoc
tribunals has been to extend the reach of international law dealing with war
13
(1951) 82 UNTS 279, annex, art. 6(b).
14
Victims of International Armed Conicts, (1979) 1125 UNTS 3, art. 85(5).
15
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, arts. 5(1),
8, 31(1)(c).
16
crimes into the eld of non-international armed conicts (or civil wars). This
reects 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 conict, 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 specic 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 conict. Second, a link or
nexus must be established between the impugned act and the conict. Third,
the accused must be shown to have had knowledge of the armed conict.
Existence of armed conict
International humanitarian law applies to armed conict and, to a limited
extent, in the period following armed conict. The existence of an armed
conict 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 rst
signicant ruling, the Appeals Chamber of the ICTY declared that
an armed conict 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. Interna-
tional humanitarian law applies from the initiation of such armed con-
icts and extends beyond the cessation of hostilities until . . . in the case of
internal conicts, 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 conict might be viewed as a contextual element
for the prosecution of war crimes. Unlike the case of crimes against humanity
17
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 22; Furundzija (IT-95-
17/1-T), Judgment, 10 December 1998, para. 258.
18
Jurisdiction, 2 October 1995, para. 70. Also: Kunarac et al. (IT-96-23/1-A), Judgment, 12
19
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 56; Akayesu (ICTR-96-
4-T), Judgment, 2 September 1998, para. 619; Rutaganda (ICTR-96-3-T), Judgment
and Sentence, 6 December 1999, para. 92; Blas kic (IT-95-14-T), Judgment, 3 March
2000, para. 63; Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 481; Milos evic
(IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 16.
and genocide, where it must be shown that there is a qualitative or quantita-
tive 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 rst appear, however, especially
where non-international armed conicts 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 conict, an
evolving body of international humanitarian law becomes applicable. The
authorities note that the threshold for internal armed conict and no conict
at all involves an analysis of the level of intensity of the conict and the degree
of organisation of the parties to the conict.
21
Thus, armed conict 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 conict exists is an
evidentiary matter, to be determined at trial and not in preliminary pro-
ceedings.
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 conict, including
whether the conict was international or non-international.
27
However, the
Security Council did not pronounce itself on the issue, leaving it for judicial
20
21
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 619621, 625.
22
Ibid., para. 620.
23
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 92.
24
Tadic (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 572.
25
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.
26
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 603604; Bagilishema
(ICTR-95-1A-T), Judgment, 7 June 2001, para. 101; Semanza (ICTR-97-20-T), Judg-
ment and Sentence, 15 May 2003, para. 357.
27
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.
determination. But there has been little doubt that there existed a state of
armed conict 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 com-
mitted during 1998 and early 1999 has provided for considerable dispute. The
Dayton Agreement of NovemberDecember 1995 brought peace to the region,
and one that was enforced by a large international military contingent. The
Kosovo conict began to heat up in 1998 but only became full-blown war
in March 1999, with the launching of NATOs bombing campaign. The issue
that the ICTY will need to determine is at what point what were clearly
troubles and disturbances escalated into armed conict. According to the
indictment in Limaj, [n]o later than early 1998, after years of increasing
tension and violence, armed conict commenced between Serb forces and
the KLA in Kosovo. This development was consistent with the KLAs generally
militant approach of active, armed resistance to Serb rule in Kosovo.
31
The
same issue is also being debated in the Milos evic 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 well-
organised ghting force, that it controlled territory in Kosovo, and that there
was armed conict of considerable intensity, the Trial Chamber dismissed a
challenge from the amici curiae who had argued that there was no armed
conict in Kosovo until March 1999.
32
International or non-international armed conict
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 conict
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 rst international treaties on the subject were
applicable to those States that had ratied them, and their scope was clearly
conned to wars between States parties, that is, to international armed con-
ict.
33
The rst humanitarian law treaties to contemplate non-international
28
E.g., Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 217.
29
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 5159 (between the
Croatian Defence Council (the HVO) and the Army of Bosnia and Herzegovina (the
AbiH)).
30
Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 561.
31
32
paras. 1440.
33
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
armed conict were the 1949 Geneva Conventions which, in common article
3, acknowledged the ambit of certain core norms to the case of armed conict
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
conict, 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 conict. 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 conict.
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 conict.
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 conict is debatable. As a
result, in general, unless the parties to an internal armed conict agree other-
wise, the only oVences committed in internal armed conict for which uni-
versal jurisdiction exists are crimes against humanity and genocide, which
apply irrespective of the conicts classication.
37
This explains why the two war crimes provisions in the ICTY Statute were
derived from treaty law that unquestionably applied to international armed
conict. That this was the intent of the Secretary-General is conrmed from
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.
34
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.
35
Theodor Meron, War Crimes in Yugoslavia and the Development of International Law,
(1994) 88 American Journal of International Law 78, at p. 80.
36
Pragmatics of Punishment, (1996) 90 American Journal of International Law 501, at
p. 503.
37
UN Doc. S/1994/674, p. 13, para. 42.
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 conict. For example, the United States of America noted the applic-
ability of the rules on internal armed conict 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 Secretary-
General 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 inter-
national law and whether customary international law entailed individual
criminal responsibility.
41
This was yet another miscalculation. Shortly after-
wards, 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 conict.
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 com-
mitted during non-international as well as international armed conict.
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
conict 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
tion 808 (1993), UN Doc. S/25704 (1993), paras. 3744.
39
UN Doc. S/PV.3217 (25 May 1993), p. 15.
40
ICTR Statute, art. 4.
41
tion 955 (1994), UN Doc. S/1995/134, para. 12.
42
Jurisdiction, 2 October 1995, para. 137. Also: Blas kic (IT-95-14-T), Judgment, 3 March
2000, para. 161; Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 132.
43
Interlocutory Appeal on Jurisdiction, 2 October 1995.
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 prose-
cuted by the International Tribunal. In other words, Article 3 functions as
a residual clause designed to ensure that no serious violation of interna-
tional humanitarian law is taken away from the jurisdiction of the Inter-
national 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 Tribunals 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 non-
international armed conict. 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 conict, 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 viola-
tions of humanitarian law whether or not these occurred in non-international
or international armed conict, and that as a result, the Statute should
therefore be construed to give eVect to that purpose.
48
44
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;
Milos evic (IT-0254-T), Decision on Motion for Judgment of Acquittal, 16 June 2004,
para. 15.
45
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 132133.
46
Kordic et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss the
of Articles 2 and 3, 2 March 1999, para. 18. Also: Kvoc ka (IT-98-30/1-PT), Decision on
Preliminary Motions Filed by Mladko Radic and Miroslav Kvocka Challenging Jurisdic-
tion, 1 April 1999.
47
48
Ibid., para. 77.
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 specic 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 Addi-
tional 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 specic 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 inconsisten-
cies 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
conict. Both the Secretary-General and the Security Council, evidently con-
cerned 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, estab-
lished some eighteen months later? In his report on the ICTR, the Secretary-
General 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 Cham-
ber in Tadic is followed. The ICTRs jurisdiction with respect to war crimes is
conned to serious violations of common article 3 and of Additional Protocol
II, and there are many serious violations of international humanitarian law
49
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 Indict-
ment Alleging Failure to Punish Liability, 2 March 1999.
50
tion 955 (1994), UN Doc. S/1995/134, para. 12.
that do not t 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 conict.
51
It is now beyond question that there is international criminal
responsibility for war crimes committed during non-international armed
conict 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 conict
Not all crimes committed during armed conict 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 conict. The case law of the tribunals holds
that there must be a link or nexus between the acts of the accused and the
armed conict.
52
This is sometimes explained as follows: the oVence must be
closely related to the hostilities or committed in conjunction with the armed
conict.
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 conict need not have been causal to the commission of the
crime, but the existence of an armed conict must, at a minimum, have
played a substantial part in the perpetrators 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 conict, 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
51
(c)(f).
52
Tadic (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 562; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, para. 32; Blas kic (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.
53
54
Ibid., paras. 104105; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January
2000, paras. 259262; Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 105;
fact that the crime is committed as part of or in the context of the
perpetrators oYcial duties.
55
Especially in civil wars, where the concept of fronts so familiar in interna-
tional armed conict does not apply in the same way,
56
it is not always easy to
identify zones of conict. The tribunals have held that [e]ven if substantial
clashes were not occurring in the [specic 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
conict.
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 conicts, the whole territory under the control of a
party to the conict, 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 conicts, 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 ghting 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 prefecture for Article 4 of the Statute to be applicable. Moreover,
it is not a requirement that ghting was taking place in the exact time-period
55
56
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
conict, 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 conict in part of the larger territory which is
unrelated to the international armed conict has been proven. Delalic et al. (IT-96-21-
T), Judgment, 16 November 1998.
57
Jurisdiction, 2 October 1995, para. 70; Kordic et al. (IT-95-14/2-T), Judgment, 26
February 2001, para. 32; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 69;
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 102103;
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. 182183; 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 (ICTR-
95-1A-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.
5859.
58
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 57. Also: 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.
70; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 64.
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 conict
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 conict, 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 conict; 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 conict in which it is committed.
61
Indications will include 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 fact that the crime is committed as part of or in the context of the
perpetrators 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 admin-
istrative subdivision of commune, and that during the genocide he was seen
wearing a military jacket and carrying a rie. But for Trial Chamber I, these
facts were
not signicant in demonstrating that Akayesu actively supported the war
eVort. Furthermore, the Chamber nds 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
Ibid., para. 59.
public oYcial or agent or person otherwise holding public authority or de
facto representing the Government, to support or full the war eVorts.
63
In Kayishema and Ruzindana, an ICTR Trial Chamber found that the Prose-
cutor had failed to prove the nexus, noting that the allegations show only that
the armed conict 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 conict.
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, comba-
tants 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 full 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 conict
Probably because the existence of armed conict on the territories over which
the tribunals exercise jurisdiction has really been beyond dispute, the Prose-
cutor appears to have essentially let the judges deduce that the accused knew
of the existence of the conict, and this does not seem to have been denied in
defence. Knowledge by the accused of the existence of the armed conict is,
nevertheless, an essential element of the crime.
63
64
65
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 425; also para. 432.
66
Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, paras. 440441.
67
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 conict.
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 conict or its character as international or non-
international; In that context there is no requirement for awareness by the
perpetrator of the facts that established the character of the conict as
international or non-international; There is only a requirement for the
awareness of the factual circumstances that established the existence of an
armed conict 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.
Specic 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 require-
ment 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
68
See: Knut Dormann, Elements of War Crimes Under the Rome Statute of the International
Criminal Court, Sources and Commentary, Cambridge: Cambridge University Press,
2002, pp. 2022.
69
Elements of Crimes, ICC-ASP/1/3, p. 108, e.g., art. 8(2)(a)(1), para. 3.
70
71
Some commentators have criticised the Secretary-General as shortsighted for omitting
grave breaches from the SCSL Statute: Nicole Fritz and Alison Smith, Current Apathy
the following acts against persons or property protected under the provi-
sions 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 justied 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 connement 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 dening grave
breaches. Agreed to at a relatively early stage in the development of interna-
tional 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 specic 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 nation-
ality, or to hand them over for prosecution to other States.
72
The Geneva
Conventions have been almost universally ratied, and their acceptance by
the Socialist Federal Republic of Yugoslavia helped reassure the Secretary-
General 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 conict that they were bound to comply with their
obligations under international humanitarian law and in particular the Gen-
eva Conventions of 12 August 1949, and that persons who commit or order
the commission of grave breaches of the Conventions are individually respon-
sible in respect of such breaches.
73
The interim report of the Commission of
for Coming Anarchy: Building the Special Court for Sierra Leone, (2001) 25 Fordham
International Law Journal 391, at p. 408, fn. 85.
72
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.
73
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
Experts that had been established by the Security Council in October 1992
concluded that grave breaches and other violations of international humani-
tarian 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 conict which may arise between two or more of the High
Contracting Parties,
76
in other words, to conicts 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 conict. It
has been argued that by a progressive interpretation of the Geneva Conven-
tions, the concept of grave breaches might be extended to non-international
armed conict. 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 conicts 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 autono-
mous provision within the Statute with no requirement of proof of an
international armed conict.
78
These views have not, however, been endorsed
by a majority of judges.
79
The debate is of mainly theoretical interest, given
Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), paras.
57.
74
UN Doc. S/25274.
75
Victims of International Armed Conicts, (1979) 1125 UNTS 3, art. 1.
76
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.
77
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-95-14/2-
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.
78
Aleksovski (IT-95-14/1-A), Dissenting Opinion of Judge Rodrigues, Presiding Judge of
the Trial Chamber, 25 June 1999, paras. 2949.
79
that all serious violations of international humanitarian law not covered by
article 2 are subsumed within article 3.
Existence of an international armed conict
A Trial Chamber in C
elebic i cited the Commentary to the fourth Geneva

Convention in dening international armed conict: [a]ny diVerence aris-
ing between two States and leading to the intervention of members of the
armed forces is an international armed conict and [i]t makes no diVerence
how long the conict lasts, or how much slaughter takes place .
80
In the rst
important prosecution before the ICTY, Dusko Tadic challenged the allegation
that there had been an international armed conict in Bosnia and Herzego-
vina. The conict 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 conict could become international (or, depending upon
the circumstances, be international in character alongside an internal armed
conict) if (i) another State intervenes in that conict through its troops, or
alternatively if (ii) some of the participants in the internal armed conict 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 conict 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 conict 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 specic operations in which violations
80
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 208. See, for a more
detailed discussion, Dormann, Elements of War Crimes, pp. 2328.
81
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. 232233. They were eventually conrmed by the
Appeals Chamber: Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 8586.
82
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.
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 conict, which is otherwise internal, is
internationalised if a foreign state exercises overall control over the military
forces of one of the parties to that conict.
85
The Appeals Chamber explained:
[C]ontrol by a State over subordinate armed forces or militias or para-
military units may be of an overall character (and must comprise more
than the mere provision of nancial assistance or military equipment or
training). This requirement, however, does not go so far as to include the
issuing of specic 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 depen-
dent on them, choose their targets, or give specic instructions concerning
the conduct of military operations and any alleged violations of interna-
tional humanitarian law. The control required by international law may be
deemed to exist when a State (or, in the context of an armed conict, the
Party to the conict) has a role in organising, coordinating or planning the
military actions of the military group, in addition to nancing, 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 specic instruction by the control-
ling 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 ICTYAppeals 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
83
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicar-
agua v. US) (Merits), [1986] ICJ Reports 14, para. 115.
84
85
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 111; Delalic et al. (IT-
96-21-A), Judgment, 20 February 2001, para. 26.
86
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 137 (emphasis in the original). Also:
87
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.
88
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 134, 145; Delalic et al. (IT-
96-21-A), Judgment, 20 February 2001, paras. 33, 48, 50.
judicial notice of the international nature of the conict 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 Peoples 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
nancial, 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 conict 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 conict 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 Blas kic , which was judged
after the ICTY Appeals Chamber had repudiated the Nicaragua case, another
Trial Chamber concluded that [b]ased on Croatias direct intervention in [the
Republic of Bosnia and Herzegovina] there was ample proof to characterise
the conict as international, and that Croatias indirect control over the
[Croatian Defence Council] and [Croatian Community of Herceg-Bosna]
89
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 Conict
in Bosnia-Herzegovina, 25 March 1999.
90
91
Ibid., para. 152. Also: Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 33,
48, 50.
92
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.
93
Ibid.
and indirect intervention would permit the conclusion that the conict was
international. The Trial Chamber found that Croatia, and more specically
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 justied 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 conict is an evi-
dentiary 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 rela-
tively 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 specic 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 (Con-
vention III) and Civilians (Convention IV). These categories of victim are
dened 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 para-
graph of article 2 of the Statute, with its reference to persons or property
94
Blas kic (IT-95-14-T), Judgment, 3 March 2000, paras. 83123. The conclusion that the
conict was international in character was not contested on appeal: Blas kic (IT-95-14-
A), Judgment, 29 July 2004, para. 171. Also: Kordic et al. (IT-95-14/2-T), Judgment, 26
95
Sean D. Murphy, Developments in International Criminal Law: Progress and Jurispru-
dence of the International Criminal Tribunal for the Former Yugoslavia, (1999) 93
American Journal of International Law 57, at p. 68. See: Furundzija (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-Tand IT-96-23/1-T), Judgment, 22 February
2001; Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000.
96
In some cases, no amendments were sought: e.g., the Alexsovski and Dokmanovic cases.
97
It has been held that the Prosecutor has the discretion to categorise acts as falling under
article 3 rather than article 2: Furundzija (IT-95-17/1-T), Decision on the Defendants
Motion to Dismiss Counts 13 and 14 of the Indictment (Lack of Subject-Matter
Jurisdiction), 29 May 1998.
98
protected under the provisions of the relevant Geneva Convention, and in
some of the specic 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 specic provisions attempting to dene con-
cepts 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 conict. 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, nd themselves, in case of a conict or
occupation, in the hands of a Party to the conict 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 nd 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 conict or Occupying Power of
which they are not nationals. Their persecutors were also of Bosnian nation-
ality. 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 dening protected persons], hinging on sub-
stantial relations more than on formal bonds, becomes all the more
important in present-day international armed conicts. While previously
wars were primarily between well-established States, in modern inter-
ethnic armed conicts such as that in the former Yugoslavia, new States
are often created during the conict and ethnicity rather than nationality
99
UNTS 287, art. 4.
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 dene
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 ghting.
100
Resisting criticism of such judicial innovation, the ICTY Appeals Chamber
has subsequently insisted that the interpretation of the nationality require-
ment of Article 4 of the Geneva Convention IV in the Tadic Appeals Judgment
does not constitute a rewriting of Geneva Convention IVor 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 conict, 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 signi-
cance, because the atrocities classied 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 con-
templated 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 dened
The fourth Geneva Convention does not dene the term civilians, but it has
been said that all persons who are not combatants might be considered
100
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 166169. Also: Blas kic (IT-95-14-T),
Judgment, 3 March 2000, paras. 126127; 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;
Blas kic (IT-95-14-A), Judgment, 29 July 2004, paras. 167182.
101
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 73 (footnotes omitted);
102
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 126127; Tadic (IT-94-1-
A), 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 Dormann, Elements of War Crimes, p. 29.
civilians.
103
Additional 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 denition of civilian turns the inquiry to the task of
dening the concept of combatants. The fourth Geneva Convention is also
decient 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 conicts (the Vietnam war was foremost at the time)
involved ghters who were combatants by night, yet peasants by day, and that
clarication of this concept was necessary in order to protect civilians who
were genuinely uninvolved in the conict. Specically, as article 43 of Addi-
tional Protocol I declares, [i]n order to promote the protection of the civilian
population from the eVects of hostilities, combatants are required to distin-
guish 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 specic punish-
able 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
Dormann, the notion of wilful killing must be limited to those acts or
omissions which are contrary to existing treaty and customary law of armed
conict, 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
103
104
Victims of International Armed Conicts, (1979) 1125 UNTS 3, art. 50.
105
Dormann, Elements of War Crimes, pp. 4041.
106
They are discussed in detail under the act of genocide of killing; see above at pp. 172174.
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 rst, torture, has been dened as involving
the iniction, 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
107
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 142. Also: Krnojelac (IT-
97-25-T), Judgment, 15 March 2002, para. 179; Furundzija (IT-95-17/1-A), Judgment,
21 July 2000, para. 111; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January
2000, para. 285.
108
109
110
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 443; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, para. 265.
111
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.
112
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 39; Delalic et al. (IT-
96-21-A), Judgment, 20 February 2001, para. 426; Blas kic (IT-95-14-A) Judgment, 29
July 2004, para. 597; Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, para. 246;
113
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, para. 246. Also, see: Kvoc ka 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).
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
denition of torture. Unlike torture, it is not necessary to establish a prohib-
ited purpose.
117
The authoritative Commentary to article 147 of the fourth
Geneva Convention says the act may be inicted for motives such as punish-
ment 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 individuals human dignity, and that may only cause
temporary unhappiness, embarrassment or humiliation, do not t within the
denition.
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
In the C
elebic i case, the Prosecutor had alleged that the inhumane condi-
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
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 442; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, para. 256.
115
Kvoc ka 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).
116
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 256. Also: Kvoc ka 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).
117
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.
118
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 339343.
119
120
121
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998.
Extensive destruction and appropriation of property
The grave breach of extensive destruction and appropriation of property, not
justied 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
denition 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 connement.
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
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 335341; Blas kic (IT-
95-14-T), Judgment, 3 March 2000, para. 157.
124
125
Joanna Dingwall, Unlawful Connement as a War Crime: The Jurisprudence of the
Yugoslav Tribunal and the Common Core of International Humanitarian Law Applic-
able to Contemporary Armed Conicts, (2004) 9 Journal of Conict and Security Law
133.
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 connement, 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 connement of civilians is lawful. The Geneva Con-
ventions 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 conict 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
In C
elebic i, the ICTY Appeals Chamber said that detention would be

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 proce-
dural safeguards required by article 43 of the fourth Convention are not
complied with in respect of detained civilians, even where their initial deten-
tion may have been justied.
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
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 322, 327.
129
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. 6973.
involving connement of civilians must be established. Responsibility for
unlawful detention, transfer or connement 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 con-
stitutes 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 conict, 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 prosecutions
133
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 fullling 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
Ibid.
132
Instructions for the Government of Armies of the United States in the Field (Lieber
Code), arts. 54, 55.
133
United States v. Wilhelm List et al. (Hostage case), (1948) 8 LRTWC 34, 11 TWC 757.
134
135
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 311314. Also: Blas kic
(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).
136
Occupation
Much of the fourth Geneva Convention is concerned with the law of occupa-
tion, 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 connement of civilians. Occupation consists of a transitional
period that follows invasion but that precedes an agreement on the cessation
of hostilities.
137
Occupation is dened 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 conict. 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 conict. 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 func-
tioning 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 denition 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 specic 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
Ibid., para. 222.
139
Ibid., para. 217.
140
Ibid., para. 218.
141
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.
paragraphs list specic acts subsumed within the general rubric, but unlike the
case of grave breaches, where the enumeration of punishable acts is exhaus-
tive, 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 justied
by military necessity;
c. attack, or bombardment, by whatever means, of undefended towns, vil-
lages, 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 ratication 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 non-
treaty 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 con-
cerns the victims of armed conict. 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
(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.
142
tion 808 (1993), UN Doc. S/25704 (1993), paras. 4144. Also: Daphna Shraga and
Ralph Zacklin, The International Criminal Tribunal for the Former Yugoslavia, (1994)
5 European Journal of International Law 1, at pp. 67.
143
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 66; Kvoc ka et al. (IT-98-30/
1-T), Judgment, 2 November 2001, para. 123.
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 Blas kic , a Trial Chamber linked the requirements of seriousness
and individual criminal responsibility, in eVect concluding that because a vio-
lation 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
nding 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 organiza-
tions, 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 com-
mitted in internal or armed conicts. Principles and rules of humanitarian
law reect elementary considerations of humanity widely recognized as
the mandatory minimum for conduct in armed conicts 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
Jurisdiction, 2 October 1995, paras. 128129. Also: Delalic et al. (IT-96-21-A), Judg-
ment, 20 February 2001, paras. 162, 171.
147
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 143, fn. 187; Hadz ihasa-
novic et al. (IT-0147-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.
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 interna-
tional 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 ve paragraphs, according to the ICTYAppeals Chamber.
150
In addition to the ve specic 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 classied as grave
breaches, violations of common article 3 of the Geneva Conventions (applic-
able to non-international armed conict), other customary rules on internal
conicts, and violations of agreements or treaties binding upon the parties to
the conict but which have not turned into customary international law.
These categories provide a useful framework for examining the specic 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 explana-
tion for his choice of the ve acts listed in article 3. Some of them reect
provisions in the 1907 Hague Regulations, while others echo provisions of the
Nuremberg Charter. The Regulations annexed to Hague Convention IV of
1907 codied 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
Jurisdiction, 2 October 1995, paras. 87, 89, 91. Also: Delalic et al. (IT-96-21-A), Judg-
ment, 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; Blas kic
(IT-95-14-T), Judgment, 3 March 2000, para. 168.
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 Responsibil-
ities 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 shing 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 ags 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
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.
153
Report of the International Commission to Inquire into the Causes and Conduct of the
Balkan Wars, Washington: Carnegie Endowment for International Peace, 1914.
154
95, at pp. 114115.
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 conrmation 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 codication
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. Further-
more, 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 ve specic acts listed in article 3 remains a bit of an
enigma. Of course, the provision is not exhaustive, as the chapeau or intro-
ductory paragraph indicates. But many of the important violations of the laws
and customs of war identied as customary law in the past did not nd 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 condi-
tions, 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 vulner-
able 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
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, arts. 8(2)
(b) and 8(2)(e)(f).
158
Ibid., art. 10.
159
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-0142), Judgment, 31
January 2005, para. 227, fn. 775.
160
95, at p. 114.
scrutinised, it becomes apparent that the ve examples listed by the Secretary-
General 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 corre-
sponding text appeared in the war crimes provision of the Nuremberg Char-
ter. 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 rami-
cations 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 Interna-
tional 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 conicts 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 justied 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
Ibid., p. 115.
162
Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General
Assembly for an Advisory Opinion), [1996] ICJ Reports 226.
163
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 Wes-
tern International Law Journal 379.
164
similar to the grave breach of extensive destruction and appropriation of
property, not justied 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
In Kordic and C
erkez, a Trial Chamber said that property situated on enemy

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 con-
sequence of the acts perpetrated by the accused.
168
In Strugar, which concer-
ned the shelling of Dubrovnik in late 1991, an ICTY Trial Chamber said that
considering the rule prohibiting attacks on civilian objects applies to non-
international conicts, the Chamber nds no reason to hold otherwise than
that the prohibition contained in Article 3(b) of the Statute applies also to
non-international armed conict.
169
Attack of undefended towns
Article 3(c) lists [a]ttack, or bombardment, by whatever means, of unde-
fended 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 identied 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
95, at p. 115.
165
Strugar (IT-0142-T), Judgment, 31 January 2005, para. 291.
166
Ibid., para. 293.
167
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 346347; Kordic et al.
(IT-95-14/2-A), Judgment, 17 December 2004, paras. 7476.
168
169
170
95, at p. 115.
Commission on Responsibilities declared that wanton destruction of reli-
gious, 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 instru-
ments.
172
To fall within the scope of this provision, there must be evidence
that the institutions in question were identied as dedicated to religion or
education and which were not being used for military purposes at the time
of the acts.
173
In Blas kic , a Trial Chamber declared that the institutions
must not have been in the immediate vicinity of military objectives.
174
How-
ever, in a later ruling, another ICTY Trial Chamber disagreed that destruc-
tion could be excused or justied 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 reects customary international law but is
applicable to both international and non-international armed conicts.
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
Hirad Abtahi, The Protection of Cultural Property in Times of Armed Conict: The
Practice of the International Criminal Tribunal for the Former Yugoslavia, (2001) 14
Harvard Human Rights Journal 1.
173
174
Ibid., para. 185.
175
176
177
Ibid., para. 310.
In Kordic and C
erkez, which involved destruction of schools, an ICTY Trial

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
conscation of property but not the term plunder.
180
Plunder has been
dened as all forms of unlawful appropriation of property in armed conict
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 conict 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, plun-
der involves unjustied appropriations of property either from more than a
small group of persons or from persons over an identiable area.
184
The
prohibition of plunder applies to the entire territory of the parties to a
conict, and is not conned to occupied territory.
185
178
Ibid., para. 360.
179
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 92. The paragraph is
very ambiguous, however.
180
95, at p. 114.
181
Delalic et al. (IT-96-21T), 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
182
183
Delalic et al. (IT-96-21T), Judgment, 16 November 1998, para. 590; 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. 612613.
184
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Decision on Motion for Acquittal, 3 July
2000, para. 16.
185
The monetary value of the property being plundered must be of some
signicance, 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
Con-
scious that some judgments might have suggested a monetary threshold for
this crime that was perhaps too high, the ICTY Appeals Chamber, in Kordic
and C
erkez, held: [A] serious violation could be assumed in circumstances

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 de-
scribed common article 3 as a codication 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
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998.
187
188
189
190
Tadic (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 616; 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. 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.
191
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicar-
agua v. US) (Merits), [1986] ICJ Reports 14, paras. 218, 255, 292(9). This was noted by a
Trial Chamber in Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 138.
192
Jurisdiction, 2 October 1995, para. 98; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June
2002, para. 68; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 166; Naletilic et al.
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 justies 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 ser-
ious breaches, because Rwanda had been a party to the Geneva Conventions
prior to the outbreak of the conict.
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
conict. 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 non-
international armed conict 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 conicts 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 reects termi-
nology that is also familiar to international human rights law. The relevant
portion of common article 3 reads as follows:
In the case of armed conict not of an international character occurring in
the territory of one of the High Contracting Parties, each Party to the
conict 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
Tadic (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 609; Tadic (IT-94-
1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2
October 1995, paras. 116, 134.
194
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 156158,
597598.
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 indis-
pensable by civilized peoples.
Perhaps because of the similarities between common article 3 and the grave
breaches provisions, there is little diYculty fullling 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 conict.
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 conict 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 conict. As the
Appeals Chamber stated in C
elebic i,
[i]t is indisputable that common Article 3, which sets forth a minimum
core of mandatory rules, reects 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 conicts, in
which rules are less developed than in respect of international conicts,
would not be applicable to conicts of an international character. The rules
of common Article 3 are encompassed and further developed in the body of
195
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 124; Blas kic (IT-95-14-
T), Judgment, 3 March 2000, para. 180; Jelisic (IT-95-10-T), Judgment, 14 December
1999, para. 34.
196
rules applicable to international conicts. It is logical that this minimum be
applicable to international conicts as the substance of these core rules is
identical. [S]omething which is prohibited in internal conicts is necessa-
rily outlawed in an international conict 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 conict (rather than an armed conict)
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
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 140150; Naletilic et al.
198
199
ICTR Statute, art. 4; SCSL Statute, art. 3 (emphasis added).
200
8(2)(c).
201
Jurisdiction, 2 October 1995, para. 134; Blas kic (IT-95-14-T), Judgment, 3 March 2000,
para. 176.
202
203
Jurisdiction, 2 October 1995, para. 94; Blas kic (IT-95-14-T), Judgment, 3 March 2000,
para. 176.
204
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 616; Musema (ICTR-96-13-
T), 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.
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
denition of the oVence of violence to life and person identied in the
Statute may be under customary law, the Trial Chamber is not satised 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 Pro-
tocol 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 non-
international armed conict 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 Con-
ventions, and was slightly modied when incorporated into Additional Pro-
tocol 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 Addi-
tional 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 specic 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
8(2)(c).
207
Ibid., art. 8(2)(e).
208
Ibid., art. 8(2)(f).
209
Victims of Non-International Armed Conicts, (1979) 1125 UNTS 609, art. 4(a).
210
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
genocide of killing.
211
As was said in the C
elebic i case, there can be no line

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 conict.
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 punish-
ment. Mutilation has not featured in the decisions of the ICTYand ICTR, but
it was widespread during the conict in Sierra Leone and will likely be
interpreted in that tribunals judgments. Cruel treatment consists of an inten-
tional act or omission which, judged objectively, is deliberate and not acci-
dental, 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 inter-
pretation to be given to the term torture under common article 3 is considered
211
For detailed analysis of the elements of the crime, see the discussion of killing as an act
of genocide, above at pp. 172174.
212
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; Blas kic (IT-95-14-T), Judg-
ment, 3 March 2000, para. 181.
213
214
2004, vol. 2, chapter 2, Findings, paras. 103, 150151, 231, 246, 282, 476, 485, 488, 497.
215
Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment, 13 May 2004, para.
para. 64; Taylor (SCSL-03-01-I), Indictment, 3 March 2003, paras. 4546; Sankoh (SCSL-
03-02-I), Indictment, 3 March 2003, paras. 4849; Koroma (SCSL-03-03-I), Indictment, 3
March 2003, paras. 4546.
216
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 265. Also: Blas kic (IT-
95-14-T), Judgment, 3 March 2000, para. 186; Jelisic (IT-95-10-T), Judgment, 14
December 1999, paras. 34, 41.
217
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 denition of rape is of limited
practical signicance with respect to prosecution of war crimes, because
outrages upon personal dignity also encompass other forms of sexual vio-
lence under the rubric indecent assault. According to an ICTY Trial Chamber,
the oVence of indecent assault involves the iniction of pain or injury by
an act which was of a sexual nature and inicted by means of coercion,
force, threat or intimidation and was non-consensual.
220
Acts of sexual
violence falling short of the rather technical denition 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
222
Relevant considerations with respect to this oVence
are the same as those of the grave breach of taking hostages,
223
with perhaps
one signicant exception: the grave breach requires that the victims be civi-
lians, 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, specically United Nations
peacekeepers.
225
218
219
220
221
222
Victims of Non-International Armed Conicts, (1979) 1125 UNTS 609, art. 4(2)(c).
223
224
225
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.
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 there-
fore 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 conrm the
status of article 4(e) of Additional Protocol II as both a legitimate interpreta-
tion 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 conict: 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 inuence 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
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(e)
(vi).
227
228
Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, paras. 5657.
229
230
Aleksovski (IT-95-14/1-T), Judgment, 25 June 1999, paras. 5456.
231
It has been held that murder is not per se an outrage upon personal dignity.
In Kvoc ka, 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, omis-
sion, or words that do not necessarily involve long-term physical harm, but
which nevertheless are serious oVences deserving of punishment.
232
Perhaps the most signicant 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 rst of these is the crime of rape. Rape has always been con-
sidered a war crime,
233
although it was not mentioned in either the Nurem-
berg Charter or the Geneva Conventions,
234
which probably reects 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
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: Re-
Engraving Crimes Against Women in Humanitarian Law, (1994) 5 Hastings Womens
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 Womens Law Journal 126.
234
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.
235
UNTS 287, art. 27.
236
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 indivi-
dual 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 rst 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
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 t 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
E.g., Geneva Conventions Act 1962 (Ireland), s. 4.
238
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 con-
ict to which they relate: Additional Protocol I governs international armed
conicts and Additional Protocol II governs non-international armed con-
icts. Both contain detailed provisions that dene the features of international
and non-international armed conict and these are slightly at variance with
the denitions applicable to the four Geneva Conventions and the fourth
Hague Convention, with respect to international armed conict, and common
article 3 of the Geneva Conventions, with respect to non-international armed
conict. 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 ratied 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 contro-
versial that major parts of both Protocols reect customary law.
239
The
Secretary-Generals 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 ratied 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, specic provisions provide for jurisdiction over serious vio-
lations of Additional Protocol II. Because of the formulation of its sole
war crimes provision, the ICTR is without jurisdiction over violations of
239
240
Leone, UN Doc. S/2000/915, para. 16. Also: Akayesu (ICTR-96-4-T), Judgment, 2
241
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 42; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, para. 167; Galic (IT-98-29-T), Judgment and
Opinion, 5 December 2003.
Additional Protocol I. Given that the conict in Rwanda is generally acknowl-
edged to be internal in nature, this omission is of no real signicance. 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 further-
more for the rst 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 simplies 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, unjustiable 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
signicance. A helpful guide is provided by the Rome Statute, which also
codies 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 specic
reference to Additional Protocol I.
245
As noted by an ICTY Trial Chamber,
242
tion 955 (1994), UN Doc. S/1995/134, para. 12.
243
244
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(2)(b).
245
[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 con-
sidered as reecting 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 specic provisions as they reect core
principles of humanitarian law that can be considered as applying to all
armed conicts, whether intended to apply to international or non-inter-
national conicts.
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 conict and are not justied 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 conict, 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 pun-
ishments, acts of terrorism, pillage and threats to commit violations of
As with all other war crimes, for Additional Protocol II to nd application
the Prosecutor must rst demonstrate the existence of an armed conict.
Additional Protocol II applies to non-international armed conict, but the
246
Kordic et al. (IT-95-14/2-T), Decision on the Joint Defence Motion to Dismiss the
of Articles 2 and 3, 2 March 1999, para. 31 (reference omitted).
247
14/2-A), Judgment, 17 December 2004, paras. 40, 4767; Strugar et al. (IT-01-42-PT),
Decision on Defence Preliminary Motion Challenging Jurisdiction, 7 June 2002, paras.
1122; 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. 222226.
threshold of intensity is somewhat higher than that provided for common
article 3.
248
Additional Protocol II applies to conicts 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 conict will usually either be the
government confronting dissident armed forces, or the government ghting
insurgent organized armed groups. The term armed forces of the High
Contracting Party is to be dened broadly so as to cover all armed forces as
described within national legislations.
250
These conditions seem to apply to
the conicts in Rwanda and Sierra Leone, and to much of the conict in the
former Yugoslavia. Whether the conict in Kosovo in 1998 and 1999 was a
Protocol II conict 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 Proto-
col 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 ratica-
tion 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
248
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 (ICTR-
96-3-T), Judgment and Sentence, 6 December 1999, para. 94.
249
Victims of Non-International Armed Conicts, (1979) 1125 UNTS 609, art. 1(1). See:
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 601602, 622623; Ruta-
ganda (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 nd 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.
250
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 625. Also: Musema (ICTR-
96-13-T), Judgment and Sentence, 27 January 2000, para. 256.
251
See: Limaj et al. (IT-0366-PT), Second Amended Indictment, 6 November 2003,
para. 4; Haradinaj et al. (IT-04-84-I), Indictment, 24 February 2005, paras. 1415;
Milos evic (IT-0254-T), Decision on Motion for Judgment of Acquittal, 16 June 2004,
paras. 1440.
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 consti-
tuted court, aVording all judicial guarantees which are generally recognized as
indispensable.
253
The imposition of collective penalties on civilians was iden-
tied 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
8(2)(c)(iv).
254
95, at p. 115.
255
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, 521524.
256
para. 44.
257
Norman et al. (SCSL-0314-I), Indictment, 4 February 2004, para. 28.
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 t 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 specic
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 specically intended. This excludes therefore a mens rea of dolus eventualis
258
77; Norman et al. (SCSL-0314-I), Indictment, 4 February 2004, para. 27; Brima et al.
(SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, paras. 7479.
259
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 147; Delalic (IT-96-21-A), Judge-
ment, 20 February 2001, para. 591; Kordic et al. (IT-95-14/2-A), Judgment, 17 December
2004, para. 77.
260
para. 44; Norman et al. (SCSL-03-14-I), Indictment, 4 February 2004, para. 28.
or recklessness.
261
It is not necessary to establish that terror was actually
inicted, or any causal relationship between the accuseds acts and the pro-
duction 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 conict 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
conict 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 human-
ity.
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 Proto-
col II of 1977, which relates to internal armed conicts, conrms the conclu-
sion 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
261
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 219220; Blagojevic et al. (IT-0260-
T), Judgment on Motions for Acquittal Pursuant to Rule 98bis, 5 April 2004, para. 50;
Blas kic (IT-95-14-A) Judgment, 29 July 2004, para. 39.
262
Galic (IT-98-29-T), Judgment and Opinion, 5 December 2003. See also: Blagojevic et al.
(IT-0260-T), Judgment, 17 January 2005, paras. 589590; Daniela Kravetz, The Pro-
tection of Civilians in War: The ICTYs Galic Case, (2004) 17 Leiden Journal of Inter-
national Law 521.
263
para. 73.
264
265
Ibid., para. 108.
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 denitions 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 conrms the
conclusion that it has no residual jurisdiction over serious violations of
international humanitarian law, unlike the ICTY, where this residual jurisdic-
tion 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 specic 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 conict, 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 conict in mind, the SCSL Appeals Chamber
held there was no merit to the argument that it was not also applicable to
international armed conict.
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 rmly established.
268
It is sobering to recall that attacks intention-
ally directed against civilians were a feature of the Second World War, for
example, and that they were perpetrated by all sides in the conict. 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 conrmed with
reference to article 51 of Additional Protocol I and article 13 of Additional
266
267
Materiae: Nature of Armed Conict, 25 May 2004, para. 30.
268
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 applic-
able to international armed conict, and article 8(e)(i), which is applicable to
non-international armed conict.
The oVence is based on what international humanitarian law describes as
the principle of distinction. In Blas kic , an ICTY Trial Chamber said, [t]he
parties to the conict are obliged to attempt to distinguish between military
targets and civilian persons . . . Targeting civilians . . . is an oVence when not
justied by military necessity.
269
But in Kupres kic , 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
the civilian population or extensive damage to civilian objects. Such attacks
are in direct contravention of the prohibitions expressly recognised in inter-
national law including the relevant provisions of Additional Protocol I.
272
The
ICTYAppeals 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
269
Blas kic (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.
270
271
Legality of the Threat or Use of Nuclear Weapons, para. 78. See also: Martic (IT-95-11-
R61), 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.
272
273
Attacking humanitarian personnel or peacekeepers
The second crime on the list of other serious violations within the jurisdic-
tion 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 conict. 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 conict, and article 8(e)(iii), which
is applicable to non-international armed conict.
274
According to the report
of the Secretary-General:
Although established for the rst 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 dened in article 4 of the
Statute of the Special Court is a specication of a targeted group within
the generally protected group of civilians which because of its humanitar-
ian or peacekeeping mission deserves special protection.
275
Two of the consolidated indictments before the SCSL allege violations of this
provision.
276
Child soldiers
The nal 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 conict, and it is virtually identical to article
8(e)(vii), which is applicable to non-international armed conict (the Rome
Statute provision refers to the national armed forces rather than armed
forces or groups). But this is not what appeared in the rst 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
For detailed discussion of this oVence, see: Dormann, Elements of War Crimes, pp. 153160.
275
276
para. 80. Also: Taylor (SCSL-03-01-I), Indictment, 7 March 2003, para. 59.
277
[a]bduction and forced recruitment of children under the age of 15 years.
278
He explained:
While the denition of the crime as conscripting or enlisting connotes
an administrative act of putting ones 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 modied 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 conict 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 sup-
porting the criminalisation of recruitment of child soldiers, but without ever
speaking to the Secretary-Generals own hesitations on the point, a majority of
the Appeals Chamber dismissed the motion.
282
Judge GeoVrey Robertsons
dissenting opinion reected 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 enlist-
ment 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
278
Ibid., p. 22.
279
Ibid., para. 18.
280
281
the Security Council, UN Doc. S/2001/40, p. 1.
282
Jurisdiction (Child Recruitment), 31 May 2004.
283
2004, para. 6.
PART 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 reected 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 contem-
plates only a relatively limited sub-set of criminal behaviour. The general part
refers to a body of rules applicable to criminal oVences, mainly those con-
cerning how individuals participate in criminal activity and the justications
or excuses they invoke in answer to criminal charges. Most criminal justice
systems provide relatively extensive and detailed codications 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 jur-
isdiction. 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. 2233.
See: Per Saland, International Criminal Law Principles, in Roy Lee, ed., The Interna-
tional Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results, The
Hague: Kluwer Law International, 1999, pp. 189216; 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.
289
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 pre-
vent 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 respon-
sibility, 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 specic 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 fth paragraph,
providing that in the event of prosecutions for the crimes in the Statute that
are specic 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 consid-
ered 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 justications raised in defence to a criminal charge.
Principles of criminal participation are also addressed in paragraph 3 of the
genocide provisions in the ICTYand 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 commit-
ting 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
290 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
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 specic 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 specicity. The judg-
ments 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 lawof the ICTYand
ICTR had little inuence 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
signicant imprint on those applied by judges at the ad hoc tribunals.
Inevitably, individual judges have been strongly inuenced 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 signicant. To the extent that issues such as the availability of excuses
and justications 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 Erdemo-
vic , 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 common-
law-trained judge, said it should not. There were two dissenters, Antonio
Cassese, a civil-law-trained Italian, and Ninian Stephen, a common-law-
trained 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 lawof
other states, that includes Japan, China, Morocco, Somalia and Ethiopia.
3
This
2
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese; Separate
and Dissenting Opinion of Judge Stephen, 7 October 1997, para. 5.
3
Ibid., Joint Separate Opinionof Judge McDonaldandJudge Vohrah, 7 October 1997, para. 61.
G E N E R A L P R I N C I P L E S O F L AW 291
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 perpetra-
tion 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 dene
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 dening 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 denitions 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
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 378 (emphasis in the
original).
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 denition, and the ICTY
and ICTR have called this the specic 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 dening the
mental element associated with the prohibited act.
A literal interpreter of the statutes might argue that absent words in the
denitions 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 specic 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 identied 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 dene 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 pre-
meditation. 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 denition of genocide uses the word killing to refer to homicide.
Dictionary denitions consider killing to mean causing death, even absent a
6
ICTY Statute, art. 21(3); ICTR Statute, art. 20(3); SCSL Statute, art. 17(3).
7
For: Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, paras. 8485; Kayishema
et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 138139; Ntakiru-
timana 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. 334339. Against:
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 214; Ruta-
ganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 79; Akayesu
(ICTR-96-4-T), Judgment, 2 September 1998, para. 588.
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 dene, because somewhere in the middle between these two con-
cepts lies what is often described as recklessness. Many judgments of the
tribunals have dened 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 Blas kic Trial Chamber attempted to explain the distinc-
tions 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 specic punishable
acts are those that accompany the category of international crime. Several
judgments have used the term specic 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
Also, ICTR Statute, art. 6(3), SCSL Statute, art. 6(3).
10
Superior or command responsibility is discussed below at pp. 314324.
11
12
13
14
This is discussed in detail above at pp. 164169.
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 specic 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-perpetrators personal satisfaction or enthusiasm or his personal initiative
in contributing to the joint enterprise.
17
Motive may also be signicant 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 rst 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 discrimina-
tory 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 denition indicate motive, as the travaux
preparatoires 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
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 102, 410; Tadic (IT-94-1-
A), Judgment, 15 July 1999, para. 271; Kordic et al. (IT-95-14/2-A), Judgment, 17
16
17
18
Ibid., para. 463.
19
Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 49.
codication 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, com-
mitted or otherwise aided and abetted in the planning, preparation or execu-
tion of a crime . . . shall be individually responsible for the crime. Explaining
the rationale for the provision, the Secretary-Generals 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 compli-
city) . . . it is fair to conclude that the Statute does not conne 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
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.
21
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), Judg-
ment, 29 November 2002, para. 62; Semanza (ICTR-97-20-T), Judgment and Sentence,
15 May 2003, para. 383.
22
tion 808 (1993), UN Doc. S/25704 (1993), para. 54.
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 crim-
inal 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 manifes-
tations 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 com-
mitted and planned to commit an oVence, that person will be convicted of
commission and not planning.
26
To this extent, planning, as well as instiga-
tion, ordering and aiding and abetting, are treated as forms of secondary
participation.
23
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 189190 (emphasis in the original).
24
Ibid., para. 191.
25
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001.
26
Commission
A nding of direct commission requires the direct personal or physical
participation of the accused in the actual acts which constitute a crime under
the International Tribunals 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 specic 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 nding of guilt with
respect to that person.
One ICTY Trial Chamber dened 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 specic language in the
provision dealing with genocide. The preliminary paragraph or chapeau of
the genocide provision common to both statutes refers to committing geno-
cide 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
27
Ibid., para. 376.
28
29
30
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 279; Krstic (IT-98-33-T), Judg-
ment, 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;
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 justication 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 jurisdic-
tion of the tribunals was contemplated and designed.
34
An exception is
genocide, for which conspiracy to commit genocide is specically provided.
The travaux preparatoires 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
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 386; Bagilishema (ICTR-
95-1A-T), Judgment, 7 June 2001, para. 30.
32
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 386; Stakic (IT-97-24-
T), 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.
33
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 380; Bagilishema
(ICTR-95-1A-T), Judgment, 7 June 2001, para. 30.
34
35
See the discussion of conspiracy to commit genocide, above at pp. 179181.
36
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 601; Blas kic (IT-95-14-T), Judg-
37
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 474483; Akayesu (ICTR-96-4-
T), Judgment, 2 September 1998, para. 209; Naletilic et al. (IT-98-34-T), Judgment, 31
38
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 252; Naletilic et al. (IT-
crime.
39
Unlike direct and public incitement to commit genocide, which is
specically 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 in-
stigation 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 after-
wards told the Interahamwe to take her away and said you should rst 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 lets exterminate
them by Barayagwiza himself and by CDR members in his presence at
public meetings and demonstrations. The reference to them was under-
stood 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 road-
blocks that created an infrastructure for and caused the killing of Tutsi
civilians. [T]he Chamber nds . . . Barayagwiza guilty of instigating acts of
genocide committed by CDR members and Impuzamugambi, pursuant to
Article 6(1).
44
39
40
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 474483; Semanza (ICTR-97-20-
T), Judgment and Sentence, 15 May 2003, para. 381.
41
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 252; Naletilic et al. (IT-
42
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 387; Blas kic (IT-95-14-
T), Judgment, 3 March 2000, paras. 278, 280.
43
44
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, paras. 954,
975.
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 gure 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 individuals 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 gure 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 person-
ally 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 superiorsubordinate
45
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 387; Blas kic (IT-95-14-
46
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. 6970.
47
48
Ibid., para. 894; also paras. 899, 905, 914, 924.
49
50
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 601; Akayesu (ICTR-96-4-T),
51
Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 332.
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 commanders
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 com-
mitted 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 nal 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 abeter, 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
52
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.
53
See the discussion of superior responsibility, below at pp. 314325.
54
55
56
Ibid., para. 282.
57
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 parti-
cipation 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 denition of substan-
tially, 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 Kvoc ka, the ICTYAppeals 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 enter-
prise depends on the eVect of the assistance and on the knowledge of the
accused. The requirement that an aider and abettor must make a sub-
stantial 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
Ibid., para. 671.
60
Ibid., paras. 691, 692. Also: Delalic et al. (IT-96-21-T), Judgment, 16 November 1998,
para. 326; Furundzija (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-95-
1-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.
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.
61
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 participa-
tion of an accomplice must entail assistance which facilitates the commission of a crime
in some signicant way: Report of the International Law Commission on the Work of
its Forty-eighth Session, 6 May26 July 1996, UN Doc. A/51/10, p. 24.
62
63
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 Con-
ference 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 unt
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 identied, 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 signicant and
encouraging eVect on the principal oVender.
70
On the other hand, the aider
64
Furundzija (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-95-1A-
T), Separate and Dissenting Opinon of Judge Mehmet Guney, 7 June 2001.
65
66
Rome Statute of the International Criminal Court, UNDoc. A/CONF.183/9, art. 25(3)(c).
67
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 561; Akayesu (ICTR-96-4-T), Judg-
ment, 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.
68
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 530. Also: Musema (ICTR-
96-13-T), Judgment and Sentence, 27 January 2000, para. 174.
69
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 (Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 47).
70
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 70; Aleksovski (IT-95-14/1-
T), Judgment, 25 June 1999, paras. 6465; Blas kic (IT-95-14-T), Judgment, 3 March
2000, para. 284.
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 Commis-
sion 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 specic 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 parti-
cipation in article 7(1) of the ICTY Statute and article 6(1) of the ICTR
Statute t 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
71
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.
72
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 48. Also: Blas kic (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.
73
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. 3132; Report of the International Law Commission on the Work of its Forty-
seventh Session, 2 May21 July 1995, UN Doc. A/50/10, para. 50.
74
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 denition 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) specically 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 codication of substantive criminal law norms, the norms
laid down in Articles 2 to 5 must be interpreted against their own specic
historical and contextual background. It follows that the Trial Chamber needs
to exercise great caution in applying any systematic interpretation or a contra-
rio reasoning that might normally follow from the interpretation of national
codication 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
It proposes more detailed denitions 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 accom-
plice 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 artice, or who directly incited to commit genocide.
76
The Rwandan Penal Code was adopted in 1977, but is modelled on the nineteenth-
century codes of France and Belgium. See: William A. Schabas and Martin Imbleau,
Introduction to Rwandan Law, Cowansville, Quebec: Editions Yvon Blais, 1998.
77
78
para. 500.
79
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).
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 specic 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 encour-
agement, 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 genocidaire. 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 man-
ufacturer 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 prot on sales of insecticide. Some judgments have
80
para. 500; Vasiljevic (IT-98-32-A), Judgment, 25 February 2004, para. 142; Tadic (IT-94-
1-A), Judgment, 15 July 1999, para. 229. Also: Vasiljevic (IT-98-32-T), Judgment, 29
November 2002, para. 71; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 286;
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 245, 249; Bagilishema
(ICTR-95-1A-T), Judgment, 7 June 2001, para. 32.
81
82
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;
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 245; Vasiljevic (IT-98-
32-T), Judgment, 29 November 2002, para. 71. Similarly, with respect to persecution,
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, paras. 5152; Blagojevic (IT-02-
83
para. 500.
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 per-
petration 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 co-
perpetrator? In Vasiljevic , the ICTYAppeals Chamber modied the judgment
at trial and found the accused guilty as an aider and abettor rather than a co-
perpetrator. 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 fteen
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
84
Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, para. 118; Kvoc ka et al. (IT-98-30/
1-T), Judgment, 2 November 2001, paras. 284285.
85
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 286; Kvoc ka et al. (IT-98-30/1-T),
Judgment, 2 November 2001, paras. 255, 309, 311.
86
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 479. Also: Kayishema et al.
87
88
89
Vasiljevic (IT-98-32-A), Judgment, 25 February 2004, para. 182. Also: Kvoc ka et al. (IT-
98-30/1-A), Judgment, 28 February 2005, para. 204.
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 judg-
ment, the ICTY Appeals Chamber said that international criminal responsi-
bility embraces actions perpetrated by a collectivity of persons in furtherance
of a common criminal design.
91
This reasoning justied 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 organisa-
tions, where proof of the individual mens rea of specic acts is not always easy
to establish.
93
The common article dealing with general principles does not specically
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 Crim-
inal 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
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 75.
91
92
The concept was endorsed by the Appeals Chamber in Tadic , but was actually summarily
developed in an earlier Trial Chamber judgment: Furundzija (IT-95-17/1-T), Judgment,
10 December 1998, paras. 210216. Similarly, an ICTR Trial Chamber had written, in
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.
93
Allison Marston Danner and Jenny S. Martinez, Guilty Associations: Joint Crimi-
nal Enterprise, Command Responsibility and the Development of International Criminal
Law, (2005) 93 California Law Review 77, at pp. 102112, 131146.
Common purpose complicity is also widely accepted in national justice
systems.
94
In the Tadic appeal judgment, the ICTYAppeals 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 con-
sequence 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 liabi-
lity. The rst 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 rst 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 concen-
tration camps.
98
In both the rst 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
94
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 29; Milutinovic et al. (IT-
99-37-AR72), Decision on Draguljob Ojdanics Motion Challenging Jurisdiction Joint
Criminal Enterprise, 21 May 2003, paras. 1920.
95
96
para. 465.
97
98
Ibid., para. 202.
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 specically 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 satised that the jurispru-
dence 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 specied 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
Brdanin (IT-99-36-T), Judgment, 1 September 2004, paras. 354355. 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. 7073.
100
Gacumbitsi (ICTR-2001-64-T), Judgment, 17 June 2004, para. 289.
101
Karemera et al. (ICTR-98-44-T), Decision Denying Leave to File an Amended Indict-
ment, 8 October 2003. Reversed: Karemera et al. (ICTR-98-44-AR73), Decision on
Prosecutors Interlocutory Appeal Against Trial Chamber III Decision of 8 October
Denying Leave to File an Amended Indictment, 19 December 2003.
102
paras. 467484.
103
Ibid., para. 468.
104
Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004,
paras. 3334; Sesay et al. (SCSL-04-15-PT), Amended Consolidated Indictment,
13 May 2004, paras. 3637. Also: Taylor (SCSL-03-01-I), Indictment, 3 March 2003,
paras. 2324.
105
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 227.ii.
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 non-
Serb 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 enter-
prise 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
Milosevic 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 dia-
mond mining areas.
111
The third consolidated indictment speaks of a plan,
purpose or design but does not employ the expression joint criminal enter-
prise, presumably because the Prosecutor does not consider the objective of
defeating the rebel groups and gaining and exercising control over the terri-
tory 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
106
Ibid., para. 230.
107
Ibid., para. 231.
108
109
110
Milos evic et al. (IT-99-37-PT), Second Amended Indictment, 16 October 2001, para. 16.
111
Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004, paras.
paras. 3637. Also: Taylor (SCSL-03-01-I), Indictment, 3 March 2003, paras. 2324.
112
Norman et al. (SCSL-03-14-I), Indictment, 4 February 2004, para. 19.
of a common plan, design or purpose which amounts to or involves the
commission of a crime. To the extent that the accused contributes signi-
cantly
113
or substantially
114
to the plan, design or purpose, with knowledge
of the plan, design or purpose,
115
even as an accomplice and without person-
ally committing a prohibited act,
116
then he or she can be found guilty of all
crimes committed as a foreseeable or predictable consequence. The arrange-
ment or understanding that constitutes the common design or purpose need
not be express; it can be unspoken, and may be inferred from the circum-
stances.
117
Where the joint criminal enterprise requires proof of some addi-
tional 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 deci-
sions at the Trial Chamber level have held that it is simply impossible to
reconcile the concept of joint criminal enterprise liability with the specic
intent of genocide,
119
but the Appeals Chamber has overturned these nd-
ings.
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 enter-
prise imposes no such requirement. The ICTYAppeals 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 signicance of the accuseds contribu-
tion will be relevant to demonstrating that the accused shared the intent to
pursue the common purpose.
123
113
Kvoc ka 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.
114
115
Ibid., para. 312.
116
117
Ibid., para. 66.
118
119
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.
120
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.
121
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.
122
123
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 Cham-
ber 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 co-
perpetrator to a member of a joint genocidal enterprise whose participa-
tion is of an extremely signicant nature and at the leadership level . . . It
seems clear that accomplice liability denotes a secondary form of parti-
cipation which stands in contrast to the responsibility of the direct or
principal perpetrators. The Trial Chamber is of the view that this distinc-
tion 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 gure 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 characteris-
ing 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
124
Krstic (IT-98-33-T), Judgment, 2 August 2001, paras. 642643.
125
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 7577.
126
Milutinovic et al. (IT-99-37-AR72), Decision on Draguljob Ojdanics Motion Challen-
ging Jurisdiction Joint Criminal Enterprise, 21 May 2003, para. 20; Krnojelac (IT-97-
25-T), Judgment, 15 March 2002, para. 73.
127
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 441 (reference omitted).
128
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.
There are three elements of liability on the basis of superior responsibility:
a superiorsubordinate 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 Addi-
tional 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 dened 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
superiorsubordinate 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 Prosecutors silver bullet,
133
but in practice
129
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 401; Blas kic (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.
130
United States of America v. Yamashita, (1948) 4 LRTWC 1, pp. 3637; In re Yamashita,
327 US 1 (1945); Canada v. Meyer, (1948) 4 LRTWC 98 (Canadian Military Court).
131
Victims of International Armed Conicts, (1979) 1125 UNTS 3, art. 86(2).
132
133
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 Signicant
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
C
elebic i (Prosecutor v. Delalic , Case No. IT-96-21 (ICTY Nov. 16, 1998)) Decision of
the International Criminal Tribunal for the Former Yugoslavia, (1999) 25 North
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 superuous, 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
Carolina Journal of International Law and Commercial Regulation 167; Christopher
N. Crowe, Command Responsibility in the Former Yugoslavia: The Chances for Suc-
cessful Prosecution, (1994) 29 University of Richmond Law Review 191; Mirjan Damaska,
The Shadow Side of Command Responsibility, (2001) 49 American Journal of Com-
parative 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, (199798) 8 Journal of Legal Studies 1;
Matthew Lippman, Humanitarian Law: The Uncertain Contours of Command Respon-
sibility, (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., Inter-
national Criminal Developments in the Case Law of the ICTY, The Hague: Martinus
NijhoV, 2003, pp. 239276; Danesh Sarooshi, Command Responsibility and the Blas kic
Case, (2001) 50 International and Comparative Law Quarterly 452; Olivia Q. Swaak-
Goldman, 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 Characteriza-
tion of Conict in Bosnia and Herzegovina, (1999) 93 American Journal of Interna-
tional 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.
134
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001 (with respect to Kordic;
C
erkez was acquitted of charges based on art. 7(3)); Delalic et al. (IT-96-21-T), Judg-
ment, 16 November 1998 (with respect to Mucic; Delalic and Delic were acquitted of
charges based on art. 7(3)); Blas kic (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; Kvoc ka 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 reect a confusion between liability based on article 6(1) and
6(3), and impose the multiple ndings of guilt that the ICTY Appeals Chamber has
subsequently declared to be an error of law.
135
of the same advantages to the Prosecutor but without the need to establish the
superiorsubordinate relationship.
The exception is Strugar, in which the accused, a Lieutenant-General in the
Yugoslav Peoples Army (JNA), was charged with respect to a military cam-
paign 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 re on Dubrovnik, including the Old
Town, without regard to military targets, and did so deliberately, indiscrimi-
nately 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 possi-
bility 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
justication, 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 subse-
quently 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 con-
ict breached the principle of legality has been argued before the ICTY.
141
136
Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 335.
137
Ibid., para. 338.
138
Ibid., para. 345.
139
Ibid., para. 418.
140
Ibid., para. 423.
141
There is ample authority for the proposition that superior responsibility in the context
of international armed conict is consistent with customary international law. See:
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,
testies to its general acceptance by States and its solid claim to status as a
norm of customary international law.
The knowledge requirement is satised when it is proven that the superior
either knew or had reason to know of the conduct of the principal perpe-
trator. Where the superior had real knowledge, it will often be more appro-
priate 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 char-
acterised by Article 7(1). Where the omissions of an accused in a position
of superior authority contribute (for instance by encouraging the perpe-
trator) 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 convin-
cing evidence of the superiors 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 Addi-
tional 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
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 Liabi-
lity, 2 March 1999; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May
1999, para. 209; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 290; Krajisnik (IT-
00-39 & 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.
142
Jurisdiction in Relation to Command Responsibility, 16 July 2003.
143
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 nding out but not for
negligently failing to nd 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 commanders 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 specic 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
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.
145
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 406 (emphasis in original).
146
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 427, 437.
147
148
Ibid., para. 77.
149
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; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 332.
150
Bagilishema (ICTR-95-1A-A), Judgment, 3 July 2002, para. 35. Also Blas kic (IT-95-14-
A), Judgment, 29 July 2004, para. 63.
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
invoking a defence of due diligence. In C
elebic i, the ICTY Appeals Chamber

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 conrm 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 fullled
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 ICTYand 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 specic 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 Chambers view
no inherent reason why, having veried 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 super-
ior knew or had reason to know of the criminality of subordinates. In the
151
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-95-1A-
T), Judgment, 7 June 2001, para. 44.
152
153
case of genocide, this implies that the superior must have known or had
reason to know of his or her subordinates specic 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 subordi-
nates and that required for the superior . . . Thus, the Trial Chamber is
satised 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 com-
mitted genocide and (2) that the subordinates possessed the requisite
specic 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 subordi-
nates may incur criminal responsibility.
155
The superiorsubordinate relation-
ship is a diYcult issue in conicts 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-dened.
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 comman-
ders.
160
On this basis, there have been convictions of the manager of a tea
154
Brdanin (IT-99-36-T), Judgment, 1 September 2004, paras. 720721.
155
156
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 248268.
157
Ibid., para. 193.
158
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; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 300; Bagilishema (ICTR-95-1A-
T), Judgment, 7 June 2001, para. 39; Niyitegeka (ICTR-96-14-T), Judgment and Sen-
tence, 16 May 2003, para. 472.
159
Kunarac et al. (IT-96-23-T&IT-96-23/1-T), Judgment, 22 February 2001, paras. 397, 399.
160
227228; Delalic et al. (IT-96-21-T), Judgment, 16 November 1998; Kambanda (ICTR-
97-23-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
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 inuence 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 satised that the accused C
erkez had eVect-

ive 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 inuence over subordinates is not
enough.
166
The nal 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,
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.
161
162
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, paras.
976977.
163
164
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 838841. These remarks
echo those of ICTRTrial Chamber I, in the very rst 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.
165
Blas kic (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. 229231; Ntakirutimana et al. (ICTR-96-
10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 819.
166
167
Blas kic (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. 4750.
168
Blas kic (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
169
Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 51. This
[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 Blas kic , 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 respon-
sibility 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 participa-
tion,
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 Blas kic 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
controversial nding 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 reection probably extends the web of liability and
the likelihood of prosecution. See also: Hadzihasanovic et al. (IT-01-47-AR72), Partial
Dissenting Opinion of Judge Shahabuddeen, 16 July 2003.
170
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 446. See: Christopher
Greenwood, Command Responsibility and the Hadz ihasanovic Decision, (2004) 2
Journal of International Criminal Justice 598.
171
172
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 830831, 836837 and
842843; Blas kic (IT-95-14-T), Judgment, 3 March 2000, paras. 744754; Kayishema
et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 210.
173
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.
174
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 745, including fn. 1261.
175
Kvoc ka 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.
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 respon-
sibility 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 disappoint-
ment. 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 unsatis-
factory explanations as to the applicability of superior responsibility to civilian
commanders, to internal armed conict and to crimes of specic 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 conict, whose liability arises with respect to methods of warfare. If
the ICTYand ICTR had devoted less attention to command responsibility, they
might already have fullled their mandates and completed their work.
Complicity in genocide
The genocide provisions of the ICTYand ICTR statutes are unique in that they
include a distinct list of punishable crimes that overlaps, to some extent, with
the more general codication 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 deni-
tion accorded to aiding and abetting.
178
The reader is referred to the
discussion of these matters elsewhere in this volume.
179
176
177
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 605 (emphasis in original).
178
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.
179
Aiding and abetting, above at pp. 302309; genocide, above at pp. 183184.
Defence, excuse and justication
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 fullled all denitional 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
LawCommission opted for the termdefences.
182
Many legal systems distinguish
between two categories of defence, namely, excuses and justications.
183
Profes-
sor George Fletcher has explained that:
Claims of justication concede that the denition of the oVence is satis-
ed, 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 justication 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 specic 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
180
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.
181
182
Report of the International Law Commission on the Work of its Forty-eighth Session
6 May26 July 1996, UN Doc. A/51/10, pp. 7381, art. 14.
183
Ibid., p. 74.
184
George P. Fletcher, Re-thinking Criminal Law, Boston: Little, Brown, 1978, p. 759.
185
tion 808 (1993), UN Doc. S/25704 (1993), para. 58.
186
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 signicant contrast to the texts applicable to the ad hoc tribunals, the
Rome Statute provides a relatively detailed codication 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 codication of defences in the Rome Statute corre-
sponds 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 specic 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 mat-
ters that fall within general principles, and they are discussed in the sections
of this study dealing with procedure and jurisdiction.
187
ICTY RPE, Rule 67(A)(i)(b); ICTR RPE, Rule 67(A)(ii)(b); SCSL RPE, Rule 67
(A)(ii)(b).
188
189
190
Ibid., para. 1156.
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 Govern-
ment Departments, shall not be considered as freeing them from responsi-
bility 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 rst conviction at the ICTR involved the man who had been head
of the interim government in Rwanda during much of the time while geno-
cide 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 Milosevic, 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, Milosevic 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
(1951) 82 UNTS 279, annex, art. 7.
192
UNTS 277, para. 4.
193
194
Karadzic et al. (IT-95-5-R61 and IT-95-18-R61), Deferral, 16 May 1995.
195
Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, para. 44.
196
Milos evic et al. (IT-99-37-PT), Indictment, 22 May 1999.
basis for challenging the validity of Article 7, paragraph 2, which at this time
reects 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. Taylors 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 rst 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 denitive 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 conrmed 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 Milos evic case, the
issue of head of State immunity received somewhat greater attention by
the SCSL in the Taylor case. As in Milos evic , the judgment reects some
confusion between the defence of oYcial capacity and the jurisdictional issue
of immunities. Thus, after reviewing the International Court of Justice opi-
nion concerning immunity, the SCSL Appeals Chamber concluded that there
was no peremptory norm contrary to article 6(2) of the Statute, the provi-
sion dealing with the defence of oYcial capacity.
200
The Court applied the
197
Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras.
2634.
198
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment,
14 February 2002, para. 58.
199
Ibid., para. 61.
200
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, paras.
4353.
principle set out by the International Court of Justice after implicitly assum-
ing 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 establish-
ment 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 benet 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 signicant that the International Court of Justice did not mention
the Special Court for Sierra Leone alongside its reference to the ICTYand 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 deter-
mines 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
201
202
(1951) 82 UNTS 279, annex, art. 8.
mitigation of the punishment.
203
Yet despite the clear words of its Statute,
the Nuremberg Tribunal appeared prepared to entertain the defence of super-
ior 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 conrmed
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 super-
ior 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 soldiers oath of obedience
to military orders. When it suits their defence they say they had to obey;
when confronted with Hitlers 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
203
International Law 172, p. 221. Customary international law is more accurately reected
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 Interna-
tional Law 708, German War Trials, Report of Proceedings before the Supreme Court in
Leipzig, Cmd 1450, London: HMSO, 1921, pp. 5657.
204
Ibid.
205
Final Report of the Commission of Experts established pursuant to Security Council
Resolution 935 (1994), UN Doc. S/1994/1405, para. 54.
206
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 (IT-
96-22-A), Judgment, 7 October 1997, para. 35.
207
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 conated 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 human-
ity or war crimes in international law involving the taking of innocent
lives. We do so having regard to our mandated obligation under the
208
Erdemovic (IT-96-22-A), Sentencing Judgment, 29 November 1996, para. 20.
209
Ibid., paras. 4854; 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.
210
E.g., United States of America v. Ohlendorf et al. (Einsatzgruppen trial), (1949) 4 TWC 1.
211
Valerie Epps, The Soldiers 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 Mile-
stone for the International Criminal Tribunal for the Former Yugoslavia, (1997) 26
Georgia Journal of International and Comparative Law 263.
212
Banovic (IT-02-65/1-S), Sentencing Judgment, 28 October 2003, para. 63.
213
Ibid., para. 17.
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 reected 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 neces-
sity and duress as if they are two sides of the same coin, and deals with them
in the same provision. In Kupres kic , the ICTY Appeals Chamber considered
briey 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
explained in C
elebic i, [i]n every criminal act there is a presumption of sanity

of the person alleged to have committed the oVence. Thus, every person
214
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.
215
31(1)(d).
216
Vasiljevic (IT-98-32-A), Separate and Dissenting Opinion of Judge Shahabuddeen, 25
217
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 55.
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 conrmed 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 codied in the Rome Statute, and may be
invoked where [t]he person suVers from a mental disease or defect that
destroys that persons 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
MNaghten 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 suscep-
tible of leading to acquittal, where successful, and diminished mental capacity,
which the ICTYAppeals 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
Delalic et al. (IT-96-21-T), Order on Esad Landzos Submission Regarding Diminished
or Lack of Mental Capacity, 18 June 1998.
221
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 31
(1)(a).
222
MNaghtens Case, (1843) 10 Cl. & Fin 200, 8 ER 718.
223
See Peter Krug, The Emerging Mental Incapacity Defence in International Criminal
Law: Some Initial Questions of Implementation, (2000) 94 American Journal of Inter-
national Law 317.
224
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1186; Vasiljevic (IT-98-
32-T), Judgment, 29 November 2002; Sikirica, 13 November 2002, paras. 198199.
225
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 590. Also: Vasiljevic (IT-
98-32-T), Judgment, 29 November 2002, para. 282.
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 satised that an accused
suVers from a diminished mental responsibility where there is an impair-
ment 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 specic intent required for a crime such as genocide.
Depending on the circumstances, then, the defence is certainly admissible. It
was formally codied 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 persons 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
226
227
United Kingdom v. Chusaburo, (1947) 3 LRTWC 76 (British Military Court).
228
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 intox-
ication could constitute a mitigating circumstance if it is forced or
coerced, the Trial Chamber cannot accept Zigics contention that an
intentionally procured diminished mental state could result in a mitigated
sentence. Indeed, the Trial Chamber considers that, particularly in con-
texts 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 anindividual 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 dened as providing
a defence to a person who acts to defend or protect himself or his property (or
another person or persons 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 reects provisions found in most national criminal
codes and may be regarded as constituting a rule of customary interna-
tional law.
233
The Appeals Chamber has also acknowledged the defence of
229
Kvoc ka 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.
230
Todorovic (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, para. 93, fn. 98; Simic (IT-
95-9/2-S), Sentencing Judgment, 17 October 2002, para. 74; Kvoc ka et al. (IT-98-30/1-
A), Judgment, 28 February 2005, para. 707.
231
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 Interna-
tional Criminal Law, Ardsley, NY: Transnational Publishers, 2001, pp. 8291.
232
233
Ibid., para. 451.
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 specic 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 conicts instead of as a justication 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 Plavsic said that when internal conict 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 justication.
In Kordic and C
erkez, the Trial Chamber explained that self-defence in this

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 specic 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 justication 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
Plavs ic (IT-00-39 & 40/1), Sentencing Judgment, 27 February 2003, para. 72.
237
Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 145; Bagi-
lishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 883.
238
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 fteen 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 conict, 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 Represen-
tative 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 conict,
on 30 November 1996.
242
239
240
241
242
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.
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 Secre-
tary-Generals reference to the illegality under international law of amnesty
with respect to genocide, crimes against humanity and war crimes, the SCSL
Appeals Chamber conrmed 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
nds 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, includ-
ing 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 conict. Here,
too, the practice of the United Nations recognises this reality, despite state-
ments 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.
243
Kallon (SCSL-04-15-AR72(E)) and Kamara (SCSL-04-16-AR72(E)), Decision on Chal-
lenge 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.
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 conict.
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 conict may have committed atrocities is, as such, irrele-
vant 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 opponents civilian population. The existence of an attack from
one side against the other sides 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 sides forces were in fact
targeting a civilian population as such. Each attack against the others
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
See: Sienho Yee, The Tu Quoque Argument as a Defence to International Crimes,
Prosecution or Punishment, (2004) 3 Chinese Journal of International Law 87.
245
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. 137146; bombing of urban centres: Patrick Facon, La pratique de la guerre
aerienne et le droit des gens, in Annette Wieviorka, ibid., pp. 115136; the Katyn
massacre: Alexandra Viatteau, Comment a ete traite la question de Katyn a` Nuremberg,
in Wieviorka, ibid., pp. 145158.
246
Kupres kic 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. 34 (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).
247
Kunarac et al. (IT-96-23-A), Judgment, 12 June 2002, para. 87. AYrming Kunarac et al.
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 specic 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 notication 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 consoli-
date evidence of the accuseds 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
Fail-
ure 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
248
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.
249
ICTY RPE, Rule 67(A)(i)(b); ICTR RPE, Rule 67(A)(ii)(b); SCSL RPE, Rule
67(A)(ii)(b).
250
251
252
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 235239;
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 Prose-
cution 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 victims ability to give voluntary and genuine consent; con-
sent 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 ICTYand ICTR, the Rules limit presentation of
evidence of consent in sexual assault cases. It can only be introduced after its
relevance and credibility is veried in an in camera hearing.
258
To some extent, this is just the mirror of the denition of rape in the case
law, which refers to sexual relations by coercion or force or threat of force
253
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 234;
254
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 15. See also: Kvoc ka et al.
(IT-98-30/1-T), Judgment, 2 November 2001, para. 638; Kayishema et al. (ICTR-95-1-
A), Judgment (Reasons), 1 June 2001, para. 107.
255
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 166. The
likelihood that the Trial Chamber misunderstood the evidentiary standard is corrobo-
rated by the unusual organisation of its judgment, which examines the arguments of the
defence before reviewing the case for the Prosecutor.
256
ICTY RPE, Rule 96(ii); ICTR RPE, Rule 96(ii).
257
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.
258
ICTY RPE, Rule 96(iii); ICTR RPE, Rule 96(iii).
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 some-
what diVerently: Credibility, character or predisposition to sexual availabil-
ity 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 reect 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 conict 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 Furundzija, said that any form of captivity vitiates consent.
263
In
Kunarac, a Trial Chamber reviewed the approaches of various jurisdictions to
the denition of rape, and to the signicance 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
specied 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 dened
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
259
260
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.
261
SCSL RPE, Rule 96(iv).
262
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; Kvoc ka et al. (IT-98-30/1-T),
Judgment, 2 November 2001, para. 178.
263
264
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, decep-
tion or false promises, abuse of power, vulnerability of the victim, and psy-
chological oppression or socio-economic conditions. Judge Shahabuddeen of
the ICTYAppeals 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 ctitious 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 Chambers nding 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
Ibid., para. 463.
266
Krnojelac (IT-97-25-A), Separate Opinion of Judge Shahabuddeen, 17 September 2003,
para. 8.
267
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 233
268
Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 543.
269
270
Reprisal
Reprisal is a controversial defence. It amounts to an argument that crimes
are justiable 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 circum-
stances. Thus, the third Geneva Convention forbids reprisals against prisoners
of war.
271
A similar provision concerning civilians and other protected per-
sons appears in Additional Protocol I.
272
As an ICTY Trial Chamber explained
in Kupres kic , 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 conict
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 Kupres kic , 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 com-
pliance 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 inuence of human rights has occurred. As a result,
271
Geneva Convention of August 12, 1949 Relative to the Protection of Prisoners of War,
(1950) 75 UNTS 135, art. 13.
272
Victims of International Armed Conicts, (1979) 1125 UNTS 3, art. 20. Additional
Protocol I deals only with international armed conict. In Martic (IT-95-11), Oral
Ruling in Hearing on Rule 61, 8 March 1996, Transcript, pp. 137140, an ICTY Trial
Chamber ruled that reprisals against civilians are prohibited in all conicts, be they
international or internal.
273
274
Galic (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 44, fn. 77.
275
Report of the Ad Hoc Committee on the Establishment of an International Criminal
Court, UN Doc. A/50/22, Annex II, pp. 5960.
276
belligerent reprisals against civilians and fundamental rights of human beings
are absolutely inconsistent legal concepts.
277
The views expressed in Kupres kic are controversial, however, and have been
criticised by scholars.
278
Moreover, the United Kingdom Manual of the Law of
Armed Conict says the courts reasoning [in Kupres kic ] is unconvincing and
the assertion that there is a prohibition in customary law ies 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 specically contemplates a justication 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 justied 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 Blas kic , an ICTY Trial Chamber said that
[t]argeting civilians or civilian property is an oVence when not justied 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 Blaskic 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
Ibid., para. 529.
278
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.,
Mans Inhumanity to Man: Essays in Honour of Antonio Cassese, The Hague: Kluwer Law
International, 2003, pp. 481510; Christopher Greenwood, Belligerent Reprisals in the
Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, in
Horst Fischer, Claus Kress and Sascha Rolf Luder, eds., International and National
Prosecution of Crimes Under International Law, Current Developments, Berlin: Arno
Spitz, 2001, pp. 539557.
279
United Kingdom Ministry of Defence, The Manual of Law of Armed Conict, Oxford:
Oxford University Press, 2004, p. 421, fn. 62.
280
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
281
282
283
Ibid., para. 651.
prohibited attacks are those launched deliberately against civilians or civilian
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
In subsequent appeals of both the Blas kic and Kordic and C
erkez cases, the

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 Blas kic , the
Appeals Chamber declared that there is an absolute prohibition on the
targeting of civilians in customary international law.
286
Its comments were
more elaborate in Kordic and C
erkez:
The Appeals Chamber claries that the prohibition against attacking
civilians and civilian objects would not be a crime when justied 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
284
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 328. Also: Rajic (IT-95-
12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and
Evidence, 13 September 1996, paras. 5457. See the discussion of these cases, and of the
defence of military necessity generally, in Knut Dormann, Elements of War Crimes Under
the Rome Statute of the International Criminal Court, Sources and Commentary, Cam-
bridge: Cambridge University Press, 2002, p. 149.
285
Galic (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 44.
286
287
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 ratied the conventions that contain them, because they con-
stitute intransgressible principles of international customary law.
289
An ICTY
Trial Chamber subsequently declared that the Appeals Chamber had over-
turned the Blas kic 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 justiable 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 justied on
grounds of overriding, i.e. imperative, military reasons.
292
288
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 ratied the conventions that contain them, because they
constitute intransgressible principles of international customary law.
289
Ibid.
290
Strugar (IT-01-42), Judgment, 31 January 2005, para. 278.
291
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 593; also para. 615. Discussed
above at pp. 220222.
292
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 wit-
nesses 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 Sta-
tute 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 systems 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-ve 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
1
2
3
James Crawford, The ILC Adopts a Statute for an International Criminal Court, (1995)
89 American Journal of International Law 404.
348
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 worlds legal systems, and that is also, given the uniqueness of interna-
tional 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 Milosevic insisted on
defending himself without counsel, a right seemingly guaranteed in an abso-
lute 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 specic 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 detre 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 con-
tinental 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
4
Louise Arbour, Crimes against Women under International Law, (2003) 21 Berkeley
Journal of International Law 196, at p. 209.
5
See, e.g., Maximo Langer, The Rise of Managerial Judging in International Criminal
Law, UCLA School of Law Research Paper No. 0419, 18 October 2004.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 349
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 accusa-
torial system (chiey adopted in common-law countries) with a number
of signicant 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 proceed-
ings before the Trial and Appeals Chambers, do not refer to a specic
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 ght 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 proce-
dural 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 ques-
tion suspects, victims and witnesses, to collect evidence and to conduct on-
site investigations. Upon a determination that a prima facie case exists, the
6
1997, para. 4.
7
Hans-Jorg 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.
Prosecutor is to prepare an indictment containing a concise statement of the
facts and the crime or crimes withwhich 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.
Identication 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 inuence the
choices made by the Prosecutor. By and large, the Prosecutor does not account
for investigative priorities. Nevertheless, in 2000, the ICTY Prosecutor pub-
licised 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 Prosecutors exercise of discretion is a constant of the
tribunals. Participants in the conict 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
Milosevic 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 NATOBombing 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
fromit, (2001) 25 FordhamInternational LawJournal 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 Conict, (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. 213220.
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 conict was a struggle between right and wrong, and that some sort of
value judgment about the participants in the conict should guide the exercise
of prosecutorial discretion. Moreover, there have been complaints that the
Prosecutors have sometimes been inuenced 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 prosecu-
tion was inuenced by political consideration. According to Goldstone, Dragan
Nikolic was not an appropriate rst person for an indictment by the rst
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
nancial pressure. The rst President of the Tribunal said he and his
colleagues expected trials at the ICTY to begin in June or July 1994, even
before Goldstones 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
Dusko 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
M. Cherif Bassiouni, Combating Impunity for International Crimes, (2000) 71 Uni-
versity of Colorado Law Review 409, at p. 419.
10
Richard J. Goldstone, Prosecuting Rape as a War Crime, (2002) 34 Case Western Reserve
11
Paul Lewis, US Aide Sees Nations Hindering Balkan Tribunal, New York Times, 18
January 1994, p. 10.
12
Anna Tomforde, German Police Hold Serb for War Crimes, Munich Arrest Follows
Investigation by Television Crew, Guardian, 15 February 1994, p. 11.
13
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 Judg-
ment, 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.
authorities. Though insignicant 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 Prosecu-
tor 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 Prosecutions 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 deners and
interpreters of the law, she wrote.
18
14
ICTY Statute, art. 18(4); ICTY RPE, Rule 49(A); ICTR Statute, art. 17(4); ICTR RPE,
Rule 49(A).
15
SCSL RPE, Rule 47(E).
16
Rajic (IT-95-12), Decision, 29 August 1995.
17
18
Jelisic (IT-95-10-T), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 14.
The SCSL Statute species that the Court has jurisdiction only over per-
sons who bear the greatest responsibility for serious violations of interna-
tional humanitarian law.
19
In principle, the Prosecutors 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
fullled 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 screen-
ing 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 nding to the Prosecutor.
But the judges have no authority under the Statute to interfere in this way
with the Prosecutors personal choice concerning indictments. For this reason,
the ICTR judges declined to adopt the same amendment, a position that is
19
SCSL Statute, art.1(1).
20
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.
21
ICTY RPE, Rule 9; ICTR RPE, Rule 9; SCSL RPE, Rule 9. This is discussed in greater
detail below at pp. 383386.
22
ICTY RPE, Rule 77(C)(i); ICTR RPE, Rule 77(B)(i). See, e.g., Kamuhanda (ICTR-99-
54A-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.
23
On the completion strategy, see above at pp. 4043.
24
ICTY RPE, Rule 11bis.
supported by the ICTY Prosecutor.
25
The ICTY judges rely apparently on a
paragraph in Security Council Resolution 1534 requiring that in reviewing
and conrming 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 unsus-
tainable. In C
elebic i, an ICTY Trial Chamber said

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. Further-
more, the decision of whom to indict is that of the Prosecutor alone and,
once such an indictment has been conrmed, 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 on-
site investigations; undertake such other matters as may appear necessary for
completing the investigation and the preparation and conduct of the pro-
secution 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
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.
26
Larry D. Johnson, Closing an International Criminal Tribunal While Maintaining
International Human Rights Standards and Excluding Impunity, (2005) 99 American
27
28
dependent upon national justice systems for legal assistance at the investiga-
tion stage.
The procedure concerning summons and questioning of suspects, victims
and witnesses, the collection of evidence and the conduct of on-site investiga-
tions 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 rm
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 inves-
tigation and prosecution in a general sense, and more specically 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
identication and location of persons, the taking of testimony and the pro-
duction 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
Review of the Decision of Trial Chamber II of 18 July 1997. 29 October 1997.
30
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. 418421.
31
For an example resulting from a defence motion, see: Kamuhanda (ICTR-99-54A-T),
Decision on Kamuhandas Motion for Extension of Judicial Cooperation to Certain
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 tribu-
nals. 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 non-
compliance. The main culprits have been governments aligned with the
combatants, notably Serbia and Croatia. Serbia waited two years after its
president, Slobodan Milosevic, had been indicted before nally 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-conict 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 Ghanas 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 pur-
suant 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 Prosecutors 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
States and to the UNHCR Pursuant to Article 28 of the Statute and Resolution 955 of
the Security Council, 9 May 2002.
32
E.g., Niyitegeka (ICTR-96-14-T), Decision to Adjourn Proceedings Due to the Unavail-
ability of Witnesses, 19 June 2002.
33
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
CongressionalExecutive 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.
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 ICTYand 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 suspects 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 stan-
dards, 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 audio-
recorded 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
34
35
ICTY RPE, Rule 47(H)(ii); ICTR RPE, Rule 47(H)(ii); SCSL RPE, Rule 47(H)(ii).
36
37
ICTY RPE, Rule 42(A)(iii); ICTR RPE, Rule 42(A)(iii); SCSL RPE, Rule 42(A)(iii).
38
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.
39
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 Exclu-
sion Decision; Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 529, 530;
Indictment
The Appeals Chamber has described the indictment as the primary accusa-
tory 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 addi-
tion that the indictment be accompanied by a Prosecutors case summary
briey 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 specicity in such
matters as the identity of the victims and the dates for the commission of
the crimes at any rate, the degree of specicity 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 dene
the scope of the debate. In Kupres kic , a conviction at rst instance was over-
turned by the Appeals Chamber because facts forming the basis of the con-
viction 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
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 63; Musema (ICTR-96-
13-T), Judgment and Sentence, 27 January 2000, para. 95, fn. 35. Common Rule 42(B)
species that questioning of a suspect shall not proceed without the presence of counsel
unless the suspect has voluntarily waived the right to counsel.
40
41
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 Indict-
ments, 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. 123136.
42
SCSL RPE, Rule 47(C).
43
44
Krstic (IT-98-33-PT), Decision on the Defence Preliminary Motion on the Form of the
Indictment, 6 May 1999.
45
the Indictment, 12 April 1999, para. 17 (footnote omitted).
46
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, paras. 117118.
the signicance 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 ndings 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 superiorsubordinate 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
C
elebic i Trial Chamber said: [T]he Trial Chamber restricts itself to addressing
the specic 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 specically 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 conict, 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 inade-
quate 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 specicity will vary depending on the nature of the
case against the accused. According to the ICTR Appeals Chamber, the
Prosecutions obligation to provide particulars in the indictment is at its
47
Ibid., para. 122.
48
para. 59. Also, paras. 71, 79, 81, 85, 88, 91, 112, 115.
49
50
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1020, 10411045.
51
Simic et al. (IT-95-9-T), Judgment, 17 October 2003, paras. 104120.
52
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.
53
Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, para. 147; Krnojelac (IT-97-25-A),
highest when it seeks to prove that the accused killed or harmed a specic
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 specicity.
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 Milos evic 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 Milos evic indictment
concerning Bosnia, however, describes the victims more generally, as 5 non-
Serbs, 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 exibility 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 unac-
ceptable 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
54
para. 74.
55
56
the Indictment, 12 April 1999.
57
Ibid., para. 90.
58
Milos evic et al. (IT-99-37-PT), Second Amended Indictment, 16 October 2001.
59
Milos evic (IT-01-51-I), Indictment, 22 November 2001.
60
Erdemovic (IT-96-22), Indictment, 22 May 1996, para. 12.
61
Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, paras. 301303; Ntakirutimana
et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, paras.
24125, 469, 470.
62
para. 159.
63
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 under-
pinning the charges against him or her. Nevertheless, in light of the factual
and legal complexities normally associated with the crimes within the juris-
diction 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 abet-
ting) 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 accuseds 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 else-
where 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 indict-
ment should clearly indicate which form of joint criminal enterprise is being
alleged.
69
The Appeals Chamber will not, however, overturn a conviction
64
Ibid.
65
Ibid., para. 114.
66
Brdanin et al. (IT-99-36-PT), Decision on Form of Further Amended Indictment and
Prosecution Application to Amend, 26 June 2001, para. 62.
67
68
Ibid., para. 138.
69
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 com-
pensating for the indictments failure to give proper notice of the Prosecutors
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 indict-
ments 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 desig-
nates a judge for the conrmation procedure. In the alternative, the President
returns the indictment to the Registrar to communicate this nding to the
Prosecutor.
71
At the ICTY and ICTR, the Reviewing (or Conrming
72
) 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 satised that the indictment charges the suspect with a crime or
crimes within the jurisdiction of the Special Court, and that the allegations in
the Prosecutions 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 conrm 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 indict-
ment with respect to charges of genocide.
77
Dismissal of a count in an
70
Ibid., para. 54.
71
ICTY RPE, Rule 28(A) (amended 6 April 2004).
72
ICTR RPE, Rule 61(B).
73
ICTY RPE, Rule 47(E); ICTR RPE, Rule 47(E).
74
SCSL RPE, Rule 47(E).
75
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 Prosecutors Requests for the
Assignment of a Conrming Judge, 26 August 1998; Kolundz ija (IT-95-8-I and IT-98-
30-PT), Decision Rejecting Prosecutors Request for Leave to Amend Indictments, 6 July
1999.
76
ICTY RPE, Rule 47(F); ICTR RPE, Rule 47(F); SCSL RPE, Rule 47(F).
77
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 specic counts, is not subject to appeal.
79
The
ICTYand 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
Milosevic was rst 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 Tribunals 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 Yugo-
slavia 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 appli-
cation. Judge Thompson referred to Judge Hunts order in Milos evic , but did
not follow the same reasoning:
78
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.
79
Bagosora et al. (ICTR-98-37-A), Decision on the Admissibility of the Prosecutors
Appeal from the Decision of a Conrming Judge Dismissing an Indictment against
Theoneste Bagosora and Twenty-eight Others, 8 June 1998, paras. 3233.
80
ICTY RPE, Rule 47(F); ICTR RPE, Rule 47(F).
81
ICTY Statute, art. 19(2); ICTR Statute, art. 18(2); SCSL RPE, Rule 47(H).
82
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.
83
Milos evic 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.
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 specically identiable 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 illega-
lity 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 condential, where this is in the interests of justice,
or to give eVect to a provision of the Rules or to protect condential
information.
86
The judge who conrms 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 Dokma-
novic had been added in a condential 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 Yugoslavias history of non-compliance
with warrants issued by the Tribunal justied such measures.
88
84
Norman et al. (SCSL-04-14-PT), Norman Decision on Inter Partes Motion by Prose-
cution 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.
85
ICTY RPE, Rule 52; ICTR RPE, Rule 52; SCSL RPE, Rule 52(D).
86
87
88
Dokmanovic (IT-95-13a-T), 22 October 1997.
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 indict-
ments 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 indict-
ments sealed only when she is not satised 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 condentiality 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 denes 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
the Former Yugoslavia, (1999) 93 American Journal of International Law 57, at p. 74.
90
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.
91
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.
92
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;
Hadzic (IT-04-75-I), Indictment, 4 June 2004.
93
94
95
See also: Ntabakuze et al. (ICTR-97-34-I), Decision on the Defence Motion Requesting
an Order for Separate Trials, 30 September 1998.
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 Milos evic , an ICTY Trial Chamber denied the Prosecutors motion to
unite three distinct indictments, each referring to separate conicts in Kosovo,
Croatia and Bosnia and Herzegovina. It said that the alleged nexus between
the diVerent conicts 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
Milos evic prosecution has proceeded in phases, almost as if there were separate
indictments for the diVerent conicts.
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
Kovac evic (IT-97-24-AR73), Separate Opinion of Judge Shahabuddeen, 2 July 1998.
97
Milos evic (IT-99-37-PT, IT-01-50-PT and IT-01-51-PT), Decision on Prosecutors
Motion for Joinder, 13 December 2001.
98
Milos evic (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.
99
Ibid.
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 ne
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 perpe-
trator 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 specic 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,
100
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. 863864;
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1089;
101
Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of
the Indictment, 24 February 1999, paras. 810.
102
103
Strugar (IT-01-42), Judgment, 31 January 2005.
104
ICTY RPE, Rule 48; ICTR RPE, Rule 48; SCSL RPE, Rule 48(A).
105
ICTR RPE, Rule 48bis; SCSL RPE, Rule 48(B). See Kanyabashi (ICTR-96-15-A), Dis-
senting Opinion of Judge Shahabuddeen, 3 June 1999, p. 16.
106
Bagosora et al. (ICTR-96-7), Decision on the Prosecutors Motion for Joinder, 29 June
2000, paras. 145156.
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 inevi-
tably 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 rst 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 specic 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 ICTYdid not seem to have a strategic
approach to the type of defendant it would prosecute, and its rst important
trial, of Dusko Tadic, concerned an insignicant 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
Kanyabashi (ICTR-96-15-A), Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction of the Trial Chamber, 3 June 1999, para. 31.
108
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.
109
Kayishema (ICTR-95-1-T), Decision on the Joinder of the Accused and Setting the Date
for Trial, 6 November 1996, p. 3.
110
Bagosora et al. (ICTR-96-7), Decision on the Prosecutors Motion for Joinder, 29 June
2000, paras. 145156; 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.
18.
111
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.
112
Sesay et al. (SCSL-03-05-PT, SCSL-03-06-PT, SCSL-03-07-PT, SCSL-03-09-PT, SCSL-
03-10-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.
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 Prosecutors 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 conict 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 single-
accused 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
Prosecutors 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 conict of interests that might cause serious prejudice to an
accused, or to protect the interests of justice.
118
There is probably a presump-
tion that joining trials will introduce economies of scale and expedite pro-
ceedings, 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
113
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.
114
Ibid., para. 17.
115
116
Rwamakuba (ICTR-98-44-T), Decision on Andre Rwamakubas Motion for Severance,
12 December 2000.
117
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.
118
See: Richard May and Marieke Wierda, Trends in International Criminal Evidence:
Nuremberg, Tokyo, The Hague, and Arusha, (1999) 37 Columbia Journal of Transna-
tional Law 725, at p. 741; Murphy, Progress and Jurisprudence of the ICTY, at pp.
7980.
119
Kunarac et al. (IT-96-23-PT), Decision on Joinder of Trials, 9 February 2000; Kvoc ka
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 C
erkezs Applica-
tion for Separate Trial, 7 December 1998, paras. 1011.
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 accuseds 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 contra-
dictory 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 Cham-
ber 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
120
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.
121
Kvoc ka et al. (IT-98-30-T and IT-95-4-PT), Decisions on Prosecution Motion to Join
Trials, 14 April 2000.
122
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.
123
For a summary attempt to compare practice in common-law and civil-law systems, see:
Kovac evic (IT-97-24-I), Decision on Prosecutors Request to File an Amended Indict-
ment, 5 March 1998, paras. 1011.
124
125
Brdanin et al. (IT-99-36-PT), Decision on Motion to Dismiss Indictment, 5 October
1999, paras. 2122.
126
Mrksic et al. (IT-95-13/1-PT), Order Terminating Proceedings Against Slavko Dokano-
vic, 15 July 1998.
127
Kvoc ka et al.; Kolundzija (IT-98-30-PT and IT-95-8-PT), Decision on Prosecutors
Motion for Joinder, 19 October 1999.
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 Prosecutors 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, evi-
dence 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
Akayesus challenge to the conviction with respect to the counts in the
amended indictment, although it confessed that had it been in the Trial
Chambers 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
Con-
siderations 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
Jelisic et al. (IT-95-10-I), Amended Indictment, 12 May 1998.
129
ICTY RPE, Rule 62ter(i); ICTR RPE, Rule 62bis(i). See, e.g., Momir Nikolic (IT-02-60/1-
T), 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. 423428.
130
131
132
Zigiranyirazo (ICTR-2001-73-I), Decision on Prosecutors Request for Leave to Amend
the Indictment and on Defence Urgent Motion for an Order to Disclose Supporting
Material in Respect of the Prosecutors 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.
133
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.
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 ling 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 Kovac evic , an ICTY Trial Chamber refused an amendment that added
several new charges and a large number of new allegations. Noting that the
indictment was led nearly a year after conrmation, 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 conrmation 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 conrming Judge, so as to avoid
any impression that the case against the accused was constructed subse-
quent 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 Prose-
cutor sought to amend the indictment during another pending trial also
dealing with the Srebrenica massacre. The Trial Chamber denied the Prosecu-
tions motion, considering that the proposed amendment at that stage of the
proceedings was not in the interests of justice.
137
134
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-99-50-
AR50), Decision on Prosecutors Interlocutory Appeal against Trial Chamber II Deci-
sion of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004,
para. 16.
135
Kunarac (IT-96-23-PT), Order Granting Leave to File an Amended Indictment and
Conrming the Amended Indictment, 19 August 1998.
136
Kovac evic (IT-97-24-I), Decision on Prosecutors Request to File an Amended Indict-
137
Blagojevic (IT-02-60-T), Decision on Prosecutions Motion for Leave to File Fourth
Amended Joinder Indictment, 10 June 2004.
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 chambers 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 tribu-
nals.
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.
138
Dragan Nikolic (IT-94-2-R61), Review of Indictment Pursuant to Rule 61, 20 October
1995.
139
Goldstone, Prosecuting Rape as a War Crime, at pp. 281282.
140
Murphy, Progress and Jurisprudence of the ICTY, at p. 73.
141
Dragan Nikolic (IT-94-2-I), Order Conrming the Amended Indictment, 12 February
1999.
142
Kovac evic (IT-97-24-AR73), Decision Stating Reasons for Appeals Chambers Order of
29 May 1998, 2 July 1998, para. 37. See, however, article 101 of the Rome Statute, which
establishes a principle of speciality. This is explained by the concept of complementarity,
so fundamental to the operation of the International Criminal Court but inapplicable to
the ad hoc tribunals.
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 Decem-
ber 2003, the SCSL Prosecutor successfully applied to withdraw indictments
against two of the more celebrated accused once he was satised 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 convic-
tion,
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 Kupres kic , 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 with-
drawals 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
ICTY RPE, Rule 51; ICTR RPE, Rule 51; SCSL RPE, Rule 51. E.g., Rusatira (ICTR-2002-
80-I), Decisions on the Prosecutors Ex Parte Application for Leave to Withdraw the
Indictment, 14 August 2002.
144
Sankoh (SCSL-03-02-PT), Withdrawal of Indictment, 8 December 2003; Bokarie (SCSL-
03-04-PT), Withdrawal of Indictment, 8 December 2003.
145
Koroma (SCSL-03-03-I), Indictment, 7 March 2003.
146
Djukic (IT-96-20-PT), Transcript, 24 April 1996.
147
Kupres kic (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of
Indictment Against Marinko Katava, 19 December 1997; Kordic and C
erkez (IT-94-14/
2-PT), Order on Prosecutors Motion for Leave to Withdraw the Indictment Against
Pero Skopljak, 19 December 1997; Kordic and C
erkez (IT-94-14/2-PT), Order on Pro-

secutors Motion for Leave to Withdraw the Indictment Against Ivan S
antic, 19 Decem-
ber 1997; Rusatira (ICTR-2002-80-I), Decisions on the Prosecutors Ex Parte
Application for Leave to Withdraw the Indictment, 14 August 2002.
148
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.
149
Indictment, 18 March 1999, p. 7.
150
Kupres kic (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of
Indictment Against Marinko Katava, 19 December 1997.
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 Conrming 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 Prosecutors discretion to indict an individual is virtually
absolute, it seems odd that he or she should even be required to seek permis-
sion to withdraw an indictment. One ruling authorising withdrawal of the
charges has said as much, suggesting that permission to withdraw an indict-
ment 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
Prosecutors 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 sub-
stantive criminal law and criminal procedure. In such a case, the indictment of
151
On 5 and 8 May 1998, charges were withdrawn against Zdravko Govedarica, Goran
Gruban, Predag Kostic, Nedeljko Paspalj, Milan Pavlic, Milutin Popovic, Drazenko
Predojevic, Z
eljko Savic, Mirko Babic, Nikica Janjic and Dragomir S
aponja.
152
Statement by the Prosecutor Following the Withdrawal of the Charges Against 14
Accused, ICTY Doc. CC/PIU/314-E (8 May 1998).
153
154
Ibid., p. 6.
155
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 conrm the Prosecutors
decision are unclear. See: Rome Statute of the International Criminal Court, UN Doc.
A/CONF.183/9, art. 53(3).
156
157
ICTY RPE, Rule 11bis; ICTR RPE, Rule 11bis.
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 dened 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 rst 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 ICTYand 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, nds 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 contem-
plate 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 suspects 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 in-
sisted that cooperating States must respect their obligations under customary
158
Subject, of course, to the non bis in idem principle: ICTY Statute, art. 10(2); ICTR
Statute, art. 9(2).
159
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.
160
161
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.
162
163
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
notication to the judiciary, or at least, by way of the Tribunals primacy, a
clause reminding the national authorities to promptly bring the suspect
before a domestic Judge in order to ensure that the apprehended persons
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 es-
cape 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 Prosecu-
tors oYces in The Hague, Arusha and Kigali which, to some extent, aVec-
ted the investigations. Judge Mse found it diYcult to accept that lack of
administrative coordination or communication may justify an extension of a
164
Ibid., para. 220.
165
Ibid., para. 222.
166
ICTY RPE, Rule 40bis (UN Doc. IT/32/Rev.8, subsequently amended by UN Doc. IT/32/
Rev.18). ICTR RPE, Rule 40bis is to the same general eVect, although it is somewhat
shorter.
167
Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999, para. 46.
suspects 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 Prosecu-
tor 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
Rwandas extradition request and release Barayagwiza, Prosecutor Louise
Arbour led 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 certied 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 jurisdic-
tion 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 ICTYand ICTR statutes require States to cooperate with the tribunals.
More specically, 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
168
Renzaho (ICTR-97-31-DP), Decision on the Prosecutors Request for the Extension of
the Suspects Detention (Rule 40bis (F) of the Rules of Procedure and Evidence), 4
November 2002, para. 7.
169
Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999; Barayagwiza (ICTR-97-
19-AR72), Decision (Prosecutors Request for Review or Reconsideration), 31 March
2000.
170
171
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 Blaskic, 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 short-
comings 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 deant. 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 coopera-
tion,
174
despite undertakings they had made at Dayton.
175
Subsequent political
changes within both countries softened the position.
Because of the signicant presence of peacekeeping forces within Bosnia
and Herzegovina after the Dayton Peace Agreement of NovemberDecember
1995, there have been repeated calls for the NATO Implementation Force
(IFOR), subsequently renamed the NATO Stabilization Force (SFOR), to
172
Blas kic (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.
173
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).
174
For a full discussion of attempts to pressure governments in the region to cooperate, see:
Scharf, Tools for Enforcing International Criminal Justice.
175
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 Imple-
mentation. 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.
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 crim-
inals.
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 ICTYAppeals 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 specically 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 accuseds rights would prove detrimental to the courts 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
176
Discussed in Scharf, Tools for Enforcing International Criminal Justice, at pp. 975978.
Also: Mikas Kalinauskas, The Use of International Military Force in Arresting War
Criminals: The Lessons of the International Criminal Tribunal for the Former Yugosla-
via, (2002) 50 University of Kansas Law Review 383.
177
Payam Akhavan, cited in Scharf, Tools for Enforcing International Criminal Justice, at
p. 957.
178
Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, para. 2.
179
E.g., Dokmanovic (IT-95-13a-PT), Decision on the Motion for Release by the Accused
Slavko Dokmanovic, 22 October 1997.
180
A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), paras. 4152.
181
of Arrest, 5 June 2003, para. 25. Also: Dragan Nikolic (IT-94-2-S), Sentencing Judgment,
18 December 2003, paras. 2132.
182
Ibid., para. 29.
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 own 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,
nding 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
183
Murphy, Progress and Jurisprudence of the ICTY, at pp. 7576.
184
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.
185
Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 4. But see Rajic (IT-
95-12-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. 1016.
186
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 nding 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.
187
See: Fa 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
Reecting 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 signicance at the beginning of their operations.
Both the ICTY and ICTR used deferral to obtain jurisdiction over their rst
suspects. It soon became relatively insignicant, 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 species 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
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.
188
Arbour, The Crucial Years, at p. 399.
189
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 646, fn. 2072, para. 667, fn.
2110.
190
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 prose-
cuted 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, signicant 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 Dusko Tadic after he was identied by
Bosnian refugees.
191
Later that year, with proceedings underway in the Ger-
man courts, Prosecutor Goldstones 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
Tadics rst appearance before the Tribunal in The Hague, two other deferral
requests were granted. The rst dealt with the leadership of the Bosnian
191
Anna Tomforde, German Police Hold Serb for War Crimes, Munich Arrest Follows
Investigation by Television Crew, Guardian, 15 February 1994, p. 11.
192
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 Dusko Tadic, 8 November 1994.
193
Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 13.
Serb forces, then still very much at war. Three individuals were identied:
Radovan Karadzic, Ratko Mladic and Mico Stanisic.
194
The other deferral
request dealt with atrocities committed in the Lasva river valley and, unu-
sually, listed no names of individuals.
195
Subsequently, however, several
accused were identied. Over the years, the Tribunal has prosecuted a number
of persons for their involvement in the Lasva river valley crimes (Furundzija,
Blaskic, Kordic, C
erkez, Aleksovski, the Kupreskic 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 rst
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 led 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
specic ongoing investigations, but also future investigations into cases
involving unknown perpetrators. In 2003, investigations began into allega-
tions of war crimes committed between Macedonian security forces and
organised Albanian rebel groups two years earlier. The Prosecutor argued that
parallel investigations by the ICTYand the Macedonian authorities might have
serious negative implications and could ultimately jeopardise the success of
the Prosecutors investigations. She suggested that
multiple interviews of witnesses by diVerent investigating parties create
the risk that conicting 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 Prosecutors
ability to analyse the same evidence. Due to the potentially diVerent
investigative procedures of the two investigating parties, the acts of the
194
Ibid., paras. 1011.
195
Ibid., para. 66.
196
Third Annual Report of the ICTR, UN Doc. A/53/429 S/1998/857, paras. 2829.
197
Erdemovic (IT-96-22-S), Sentencing Judgment, 5 March 1998.
198
First Annual Report of the ICTR, UN Doc. A/51/399-S/1996/778, annex, para. 33.
Macedonian authorities could also compromise or taint subsequent inves-
tigative 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 inten-
tion 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 ve 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 Milosevic
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
In re The Republic of Macedonia (IT-02-55-MISC.6), Decision on the Prosecutors
Request for Deferral and Motion for Order to the Former Yugoslav Republic of
Macedonia, 4 October 2002, para. 12.
200
Ibid., para. 49.
201
tion 808 (1993), UN Doc. S/25704 (1993), para. 64.
202
Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 247;
203
ICTY RPE, Rule 58; ICTY RPE, Rule 58. Reecting 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.
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 signicant nancial 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 conrmed 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 satised 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
Sean D. Murphy, Contemporary Practice of the United States Relating to International
Law, (2002) 96 American Journal of International Law 706, at pp. 729730; Allison
Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Dis-
cretion at the International Criminal Court, (2003) 97 American Journal of International
Law 510, at p. 535.
207
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.
208
E.g., Foreign Operations, Export Financing and Related Programmes, Fiscal Year 2002,
Pub. L. No. 107115, paras. 584(a), (c), 115 Stat. 2118, 2172 (2002).
209
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.
210
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 Prosecutors 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 ICTYs two most celebrated suspects at large, Bosnian Serb
leaders Radovan Karadzic 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 rst 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 signicance 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
Ibid., para. 277.
212
213
214
Ibid., paras. 245, 248.
215
ICTY Statute, art. 20(3); ICTR Statute, art. 19(3); SCSL RPE, Rule 61.
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 accuseds 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 accuseds participation. If
these conditions are fullled, the Trial Chamber may enter a nding 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
Norac (IT-04-76-I), Decision on the Prosecutors Motion to Oppose the Initial Appear-
ance of Mirko Norac, 30 June 2004.
217
218
ICTY RPE, Rule 62bis; ICTR RPE, Rule 62(B); SCSL RPE, Rule 63.
219
Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 15.
220
221
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.
222
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.
satised 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 provi-
sional 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 Kvocka 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 tness 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
223
Sesay et al. (SCSL-04-15-AR65), Sesay Decision on Appeal Against Refusal of Bail, 14
224
225
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.
226
Simic et al. (IT-95-9-AR65), Decision on Milan Simics Application for Provisional
Release, 29 May 2000.
227
On 18 January 2004, a duty judge granted Enver Hadzihasanovic provisional release
from 18 to 20 January 2004 to attend the funeral of his brother in Bosnia and Herzego-
vina: 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: Hadz ihasanovic et al. (IT-01-47-T),
Decision Pursuant to Rule 65 Granting Amir Kubura Authorization to Attend his
Mothers Funeral, 12 March 2004. Hadzihasanovic and Kubura waived their right to
be present at the trial proceedings for the duration of their release.
228
Kovac evic (IT-01-42/2-I), Decision on Provisional Release, 2 June 2004; Kovac evic (IT-
01-42/2-I), Decision to Extend the Order for Provisional Release, 2 December 2004.
Also: Kovac evic (IT-01-42/2-I), Order on the Prosecutors Request for Referral to
National Authorities Under Rule 11bis, 20 January 2005.
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 rst accused
persons to turn himself in to the ICTY, Croatian general Tihomir Blaskic, 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 pro-
ceedings 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 complex-
ity of the proceedings and the gravity of the oVences with which the Accused
is charged, the Chamber concludes that the Accuseds 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
229
Sainovic et al. (IT-99-37-AR65), Decision on Provisional Release, 30 October 2002.
230
Mugenzi et al. (ICTR-99-50-I), Decision on Justin Mugenzis Motion for Stay of
Proceedings or in the Alternative Provisional Release (Rule 65) and in Addition Sever-
ance (Rule 82(B)), 8 November 2002.
231
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 Mugenzis 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.
232
233
of the Rules of Procedure and Evidence, 3 April 1996.
234
Ndayambaje (ICTR-98-42-T), Decision on the Defence Motion for the Provisional
Release of the Accused, 21 October 2002.
235
Mpambara (ICTR-2001-65-I), Decision (Requete de la Defense aux ns de la mise en
liberte de lAccuse), 22 October 2002.
trial.
236
But judges have been unimpressed by arguments from the Prose-
cutor 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
justies continued detention.
237
The tribunals have often cited the diYculty that they have in executing
their own arrest warrants in other countries as a justication 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 provi-
sionally. 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 legisla-
tive changes. Going a step further, in 2002 the Appeals Chamber attached
signicance to guarantees from the Republika Srpska.
239
The Appeals Cham-
ber 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 accuseds state of health, is not compatible with any
form of detention.
243
For example, release was authorised in the case of a
236
Brdanin (IT-99-36-PT), Decision on Motion by Brdanin for Provisional Release, 18
September 2000.
237
Ibid.
238
Ibid.
239
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
Blagojevics and Dragan Obrenovics Applications for Provisional Release, 22 July 2002.
240
Mrksic (IT-95-13/1-AR65), Decision on Appeal against Refusal to Grant Provisional
Release, 8 October 2002.
241
242
ICTY RPE, Rule 65(B)
243
of the Rules of Procedure and Evidence, 3 April 1996. See also the subsequent decisions
in Blas kic 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.
terminally ill defendant,
244
and for an individual conned 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 cir-
cumstances 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 consider-
ably liberalised, and that provisional release was now the rule rather than the
exception, a principle stated clearly in international human rights instru-
ments.
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 dis-
missed 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
244
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.
245
Simic et al. (IT-95-9-AR65), Decision on Milan Simics Application for Provisional
Release, 29 May 2000.
246
Simic et al. (IT-95-9-PT), Decision on Simo Zarics Application for Provisional Release,
4 April 2000.
247
E.g., International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art.
9(3).
248
Kvoc ka et al. (IT-98-30-PT), Decision on Motion for Provisional Release of Miroslav
Kvocka, 2 February 2000; Simic et al. (IT-95-9-PT), Decision on Simo Zarics Application
for Provisional Release, 4 April 2000; Simic et al. (IT-95-9-AR65), Decision on Milan
Simics Application for Provisional Release, 29 May 2000; Brdanin (IT-99-36-PT), Deci-
sion 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 Provi-
sional Release of Ferdinand Nahimana et al., 13 June 2001; Krajisnik et al. (IT-00-39 and
40-PT), Decision on Momcilo Krajisniks 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-01-46-
PT), 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. 231247, at pp. 233234.
249
Brdanin (IT-99-36-A), Decision on Application for Leave to Appeal, 7 September 2000.
250
Brdanin (IT-99-36-PT), Decision on Motion by Brdanin for Provisional Release, 18
September 2000; Muhimana et al. (ICTR-95-I-B-I), Decision (Requete de la Defense aux
ns de la mise en liberte provisoire de lAccuse), 1 October 2002, para. 7.
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 incom-
patible with human rights standards.
251
The Trial Chamber said the guaran-
tees 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 Tribunals 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 Tribunals 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 justied
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 Tribunals 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
Ayear 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
conrm compliance, and immediately arrest the accused in case of escape or
251
Ilijkov v. Bulgaria (App. No. 33977/96), Judgment, 26 July 2001, paras. 84 and 85.
252
Hadzihasanovic et al. (IT-01-47-PT), Decisions granting Provisional Release to Enver
Hadzihasanovic, Mehmed Alagic and Amir Kubura, 9 December 2001.
253
Krajisnik et al. (IT-00-39 and 40-PT), Decision on Momcilo Krajisniks Notice of
Motion for Provisional Release, 8 October 2001, para. 11.
254
Ibid., para. 22.
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 countrys police force to provide any meaningful super-
vision of accused persons who might be released. In every single bail applica-
tion, 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 specic provision in the statutes or the rules deals with tness 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 untness persists, and the Tribunal con-
cludes 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 con-
cluded: 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
Sainovic et al. (IT-99-37-PT), Decision on Applications of Nikola Sainovic and Dra-
goljub Ojdanic for Provisional Release, 26 June 2002.
256
Blagojevic et al. (IT-02-53-AR65), Decision on Application by Dragan Jokic for Leave to
Appeal, 18 April 2002, paras. 78.
257
Fofana (SCSL-04-14-PT), Condential 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.
258
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.
259
March 2005.
260
In addressing the tness 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 tness 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 untness 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 nding an
accused unt 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 tness arose at the ICTY in its rst 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 t to stand trial.
265
Fitness also arose
in the prosecution of Vladimir Kovacevic, who was indicted together with
Pavle Strugar and Admiral Miodrag Jokic for the December 1991 attack on
Dubrovnik. Kovacevic 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
Strugar (IT-01-42-T), Decision Re the Defence Motion to Terminate Proceedings, 26
May 2004, para. 32.
262
Ibid., paras. 3536.
263
Ibid., para. 38.
264
Similarly, see: Kovac evic (IT-01-42/2-PT), Order on the Prosecutors Request for Referral
to National Authorities Under Rule 11bis, 20 January 2005.
265
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 38.
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, Kovacevic 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 t to stand trial.
266
The rulings on the right of Slobodan Milosevic to defend himself also raise
the issue of tness, although they have not been presented as analogous with
the question of tness to stand trial for inability to understand the proceed-
ings.
267
But when Milosevic has been deemed unable to defend himself
because of his hypertensive medical condition, this is in eVect a matter of
tness 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 defendants 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 confronta-
tions 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 Chambers 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
266
Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, paras. 99100.
267
This subject is discussed in greater detail under right to counsel, above at pp. 523531.
268
Milos evic (IT-02-54-T), Order on the Modalities to be Followed by Court Assigned
Counsel, 3 September 2004, pp. 23.
269
Milos evic (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chambers
Decision on the Assignment of Defence Counsel, 1 November 2004, para. 13.
270
Ibid., para. 15 (references omitted).
271
Ibid., fn. 43.
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 conrmation 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 state-
ments 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
Prosecutions strategy and to make the appropriate preparations.
278
272
Jean Pradel, Droit penal compare, Paris: Dalloz, 1995, pp. 414420.
273
Edwards v. United Kingdom, Series A, No. 247B, 16 December 1992. See: Anne-Marie La
Rosa, Reexions sur lapport du Tribunal penal international pour lex-Yougoslavie au
droit a` un proce`s equitable, (1997) 101 Revue ge nerale de droit international public 945,
at p. 974.
274
Delalic et al. (IT-96-21), Decision on the Defence Motion to Compel the Discovery of
Identity and Location of Witnesses, 18 March 1997.
275
Williams v. Florida, 399 US 78 (1970).
276
Tadic (IT-94-1-T), Separate Opinion of Judge Stephen on Prosecution Motion for
Production of Defence Witness Statements, 27 November 1996.
277
ICTY RPE, Rule 66(A)(i); ICTR RPE, Rule 66(A)(i). The SCSL Rules are more demand-
ing, 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.
278
Blas kic (IT-95-14), Decision on the Production of Discovery Materials, 27 January 1997.
A witness statement is an account of a persons 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
testies during the course of a trial before the Tribunal, the witnesss verbal
assertions recorded by the Registrys 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 inten-
ded to be called, in accordance with the Rule, to testify in subsequent pro-
ceedings 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 pre-
sumption of innocence. Rule 67 also requires the defence to disclose any
special defence, such as diminished or lack of mental responsibility. Subse-
quent 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 Prosecutors 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 ICTYand 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.
279
Blas kic (IT-95-14-A), Decision on the Appellants Motions for the Production of
Material, Suspension or Extension of the Brieng Schedule, and Additional Filings, 26
September 2000.
280
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.
281
ICTY RPE, Rule 66(B); ICTR RPE, Rule 66(A)(ii); SCSL RPE, Rule 66(A)(ii).
282
ICTY RPE, Rule 67(C); ICTR RPE, Rule 67(C).
283
Amendment to the Rules of Procedure and Evidence, UN Doc. IT/225.
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 signicant and that it is in the
possession of the Proecutor.
287
The Prosecutors obligation of disclosure
continues throughout the trial and during appeal proceedings, and even after
a nal 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
284
Krajisnik et al. (IT-00-39 and 40-PT), Decision on Prosecution Motion for Clarication
in Respect of Application of Rules 65 ter, 66(B) and 67(C), 1 August 2001.
285
ICTY RPE, Rule 68(i); ICTR RPE, Rule 68(A); SCSL RPE, Rule 68(B).
286
Delalic (IT-96-21), Decision on the Motion by the Accused Zejnil Delalic for the
Disclosure of Evidence, 26 September 1996, para. 9
287
Blas kic (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.
288
ICTY RPE, Rule 68(v); ICTR RPE, Rule 68(E); SCSL RPE, Rule 68(B). Blas kic (IT-95-
14-A), Decision on the Appellants Motions for the Production of Material, Suspension
or Extension of the Brieng Schedule, and Additional Filings, 26 September 2000.
289
Kupres kic et al. (IT-95-16-T), Decision, 11 January 1999; Kvoc ka et al. (IT-98-30/1-T),
Decision on the Defence of Alibi for the Accused Zoran Z
igic, 21 July 2000.

290
Blas kic (IT-95-14-T), Decision on the Defence Motion for Sanctions for the Prosecutors
Continuing Violation of Rule 68, 28 September 1998.
defence needs to know the identity of a witness in order to respond properly
and, possibly, raise challenges to the witnesss credibility. In some cases,
however, witnesses remain unidentied, at least as far as the public is con-
cerned, even at trial. It is not at all uncommon for witnesses not to be
identied 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 identication 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, memor-
anda 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 notication under those Rules. An ICTY Trial
Chamber decided that the war diary prepared by General Blaskics deputy,
as well as a military log, did not fall within this exception. Blaskic 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 condential 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 exibility. 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
lter of the main object and purpose of Rule 69 and of the overall scheme
of the Tribunals Statute to equally serve the rights of the accused to a fair
trial, including the right to be provided information for eVective cross-
examination of the witnesses against him, and the mandate of the Tribunal
to provide meaningful protection for vulnerable victims and witnesses.
291
Blas kic (IT-95-14-T), Order for the Production of Documents Used to Prepare for
Testimony, 22 April 1999.
292
The majority ordered the Prosecutor to disclose the information on a rolling
basis no later than thirty-ve days before the date of testimony of a particular
witness, or when the witness comes under the protection of the Tribunal,
whichever comes rst.
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 conict 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 t to deliver a copy of
the le to the President of the Trial Chamber, a Senegalese magistrate. When
the issue became public, the Trial Chamber ordered production of all prose-
cution 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 le 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 Prosecutors le, as if it were the
dossier of the juge dinstruction, 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
Prosecutors le 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 Prose-
cutor 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
293
Bagosora et al. (ICTR-98-41-I), Decision and Scheduling Order on the Prosecution
Motion for Harmonisation and Modication of Protective Measures for Witnesses, 5
January 2002.
294
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
nal judgment: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 21.
295
Megan A. Fairlie, The Marriage of Common and Continental Law and its Progeny, Due
Process Decit, (2004) 4 International Criminal Law Review 243, at pp. 306309.
296
ICTR RPE, Rule 73bis(B) in ne.
necessary to the Trial Chamber in fullling 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 Cham-
ber to order production of all witness statements. Perhaps this reects the
fact that the members of the SCSL judiciary are primarily of common-law
tradition, and nd 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 Furundzija, 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
Blagojevic et al. (IT-02-60-AR73/AR73.2/AR73.3), Decision, 8 April 2003, para. 18.
298
Nyiramasuhuko et al. (ICTR-98-42-T), Transcript, 21 March 2002.
299
Bagosora et al. (ICTR-98-41-T), Decision on the Defence for Bagosoras Motion for
Postponement or Quashing of the Testimonies of Witnesses Ruggiu, XAM and ZF, 30
September 2002.
300
Arbour, Crimes against Women, at p. 205.
301
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998. See: William A. Schabas,
Furundzija, Commentary, in Andre Klip and Goran Sluiter, eds., Annotated Leading
Cases of International Criminal Tribunals, The International Criminal Tribunal for the
Former Yugoslavia 19971999, vol. III, Antwerp: Intersentia, 2001, pp. 753760.
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 objec-
tions 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 mo-
tion and refer it immediately to the Appeals Chamber. Following an amend-
ment 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 resolu-
tion prior to the trial itself is necessary or desirable. Motions other than
preliminary motions require leave or certication of the Trial Chamber in
order to authorise an appeal.
306
Appeals Chambers have expressed impatience
when certication 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 tri-
bunals 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
302
ICTY RPE, Rule 72(A); ICTR RPE, Rule 72(A).
303
SCSL RPE, Rule 72(B)
304
305
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.
306
This is discussed in greater detail under Appeal, below at pp. 439449.
307
Norman et al. (SCSL-04-14-AR73), Decision on Amendment of the Consolidated
Indictment, 16 May 2005, paras. 43, 87.
308
Daryl A. Mundis, Improving the Operation and Functioning of the International
Criminal Tribunals, (2000) 94 American Journal of International Law 759, at p. 763.
309
ICTR RPE, Rule 73(D). There are many examples of this, e.g., Ntahobali et al. (ICTR-
98-42-T), Decision on Ntahobalis Motion to Rule Inadmissible the Evidence of Witness
TN, 1 July 2002; Nahimana et al. (ICTR-99-52-I), Decision on the Defences Request to
have the Report and the Testimony of Expert Witness Jean Pierre Chretien Declared
Inadmissible, 31 January 2002 (the defence contested the fact that the Prosecutor had
led 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).
challenged hearsay evidence as being in principle inadmissible, an ICTR Trial
Chamber threatened that in the future it will order, as a sanction, the non-
payment to the defence of all costs and fees associated with the preparation
and ling 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 led 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 lings is to direct the
Registrar to deny ling and that it could require the applicant to le a new
application without the oVensive language. Moreover, [i]f the Applicant
were to persist, the Bureau might bar the ling 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, includ-
ing 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 le
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 Prosecutors 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
310
Ntahobali et al. (ICTR-98-42-T), Decision on Ntahobalis Motion to Rule Inadmissible
the Evidence of Witness TN, 1 July 2002.
311
S
es elj (IT-03-67-PT), Decision on Motion for Disqualication, 10 June 2003.

312
ICTY RPE, Rule 65bis; ICTR RPE, Rule 65bis; SCSL RPE, Rule 65bis.
313
ICTY RPE, Rule 90(G).
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 satised 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 le a statement of admitted facts and law and a
pre-trial brief addressing the factual and legal issues.
317
Only when the
Prosecutors 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 presenta-
tion 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 institu-
tion 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
ICTY RPE, Rule 65ter(E); ICTR RPE, Rule 73bis(B); SCSL RPE, Rule 73bis(B).
315
ICTY RPE, Rule 73bis(D).
316
ICTY RPE, Rule 73bis(E); ICTR RPE, Rule 73bis(E); SCSL RPE, Rule 73bis(E).
317
ICTY RPE, Rule 65ter(F); ICTR RPE, Rule 73bis(F); SCSL RPE, Rule 73bis(F).
318
ICTY RPE, Rule 73ter; ICTR RPE, Rule 73ter; SCSL RPE, Rule 73ter.
319
Kupres kic et al. (IT-95-16-T), Decision, 11 January 1999.
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 fullled. 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 rst
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 indict-
ment, 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 conrmed, 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 specied 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
ICTY RPE, Rule 65ter.
321
Ntuyahaga (No. ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
322
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. 4043.
323
Ademi et al. (IT-04-78-PT), Request by the Prosecutor Under Rule 11bis, 2 September
2004, para. 28.
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 satised 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 facil-
itate 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 specic 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 interna-
tional 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 rst referral was made by the ICTY in May 2005, following a contested
hearing. Radovan Stankovic was accused of responsibility for Karamans
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 specic Serb soldiers to be raped and
324
325
There is strong support in international human rights law for a prohibition on extra-
dition or transfer where capital punishment may be imposed. See: Charter of Funda-
mental 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.
326
UN Doc. S/RES/1534 (2004), paras. 45.
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
Prosecutors 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 specied 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
Stankovic (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11bis, 17 May 2005.
328
Ademi et al. (IT-04-78-PT), Request by the Prosecutor Under Rule 11bis, 2 September
2004.
329
Larry D. Johnson, Ten Years Later: Reections on the Drafting, (2004) 2 Journal of
International Criminal Justice 368, at p. 372.
330
Prosecutors 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 expedi-
tious 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 reected the ad-
versarial 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 specic and unique needs of an international criminal
justice system.
1
2
tion 808 (1993), UN Doc. S/25704 (1993), paras. 103104.
410
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 accuseds 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 Repub-
lic 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 specically 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 condential hearing before the Trial Chamber concerning the
privileged nature of testimony that one of its former employees was propos-
ing 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 ap-
pointment 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 specied
3
When the ICTR Registrar attempted to le a brief during proceedings, the Prosecutor
successfully challenged this on the grounds that he was not a party to the proceedings:
4
5
6
Barayagwiza (ICTR-97-19-AR72), Order, 8 December 1999.
7
Ruling Concerning the Testimony of a Witness, 27 July 1999.
8
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.
9
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 TRCs Request to Hold a Public Hearing With Chief Samuel
Hinga Norman JP, 28 November 2003.
T R I A L A N D P O S T- T R I A L P R O C E D U R E 411
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 majority
12
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 satised 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
ve 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
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.
12
ICTY RPE, Rule 98ter(C); ICTR RPE, Rule 87(A); SCSL RPE, Rule 87(A).
13
14
15
Kamuhanda (ICTR-99-54-T), Minutes of Proceedings, 3 September 2001; Kajelijeli
(ICTR -98-44A-T), Minutes of Proceedings, 2 July 2001.
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 Blas kic , 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 unan-
imously 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
accuseds consent, was rst invoked in late 2003 when one of the sitting judges
in the ICTRs 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
Karemera et al. (ICTR-98-44-AR15bis.2), Reasons for Decision on Interlocutory Appeals
Regarding Continuation of Proceedings with a Substitute Judge and on Nziroreras
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.
18
19
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.
20
Nyiramasuhuko et al. (ICTR-98-42-A15bis), Decision in the Matter of Proceedings
Under Rule 15bis(D), 24 September 2003, para. 17.
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 unqualied 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 Chambers 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 certicate 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 Councils
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 Nyir-
amasuhuko, 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 Tribunals detention awaiting the commen-
cement 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 testied and the exercise of the power to order a
continuation of the trial with a substitute judge . . . The stage reached in each
21
Ibid., para. 18.
22
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 Tribunals Statute and in
customary international law. Milos evic (IT-02-54-AR73.4), Dissenting Opinon of Judge
David Hunt, 30 September 2003, para. 20.
23
Nyiramasuhuko et al. (ICTR-98-42-T), Decision in the Matter of Proceedings under
Rule 15bis(D), 15 July 2003, para. 33(g).
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 delity and accessibility of the trial
record in this case is so high (video-recording of proceedings, accurate
transcripts, extensive reliance on printed exhibits, signicant reliance on
lmed and taped evidence) that the diVerence between a rst-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
disqualication had been led, 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
xed on some erroneous considerations in the assessment by the two remain-
ing judges, but seemed principally inuenced 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 nally began after lengthy delays, but was then
suspended sine die pending the completion of other trials. Because of non-
re-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
Ibid., para. 27.
25
Krajisnik (IT-00-39&40), Decision Pursuant to Rule 15bis(D), 16 December 2004.
26
Regarding the Continuation of Proceedings with a Substitute Judge and on Nziroreras
Motion for Leave to Consider New Material, 22 October 2004, para. 58.
27
Karemera et al. (ICTR-98-44-AR15bis.2), Decision on Interlocutory Appeals Regarding
the Continuation of Proceedings with a Substitute Judge and on Nziroreras Motion for
Leave to Consider New Material, 28 September 2004, para. 8.
28
Regarding the Continuation of Proceedings with a Substitute Judge and on Nziroreras
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 disqualied
judge. Judge Schomburg dissented, and would have allowed the trial to continue.
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 continua-
tion 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 signicant 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 disqualied 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 Furundzija, 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 nancial or proprietary interest in the outcome of a case, or if
the judges 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 tradi-
tions 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 benet 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
Bagosora et al. (ICTR-98-41-T), Decision on Continuation or Commencement de novo
of Trial, 11 June 2003.
30
Karemera et al. (ICTR-98-44-T), Decision on Motion by Nzirorera for Disqualication
of Trial Judges, 17 May 2004.
31
Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, paras. 189190.
32
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 disqualication 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 nations butcher. More generally, he had made pejorative ob-
servations 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 specic 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 S
eselj to Judges Schomburg, Mumba and Agius, members

of the Trial Chamber assigned to his case, on grounds of nationality and
religion. S
eselj 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 disquali-
ed. S
eselj described Judges Mumba and Agius as ardent and zealous Catho-
lics, adding that the Roman Catholic Church had contributed to the
33
Sesay (SCSL-04-15-AR15), Decision on Defence Motion Seeking the Disqualication of
Justice Robertson from the Appeals Chamber, 13 March 2004, para. 7.
34
Ibid., para. 15.
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 Furundzija, 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 prosecu-
tion lawyers and members of an amicus curiae team, had also been involved
with the Commission. According to the ICTYAppeals 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 qualied in the area of
international human rights, noting that a judge should not be disqualied
because of qualications 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 childrens rights organisations, and more
specically 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
S
es elj (IT-03-67-PT), Decision on Motion for Disqualication, 10 June 2003.

36
37
Ibid., para. 205.
38
39
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 Winters Response to Motion to Recuse her from Deliberating on the Preliminary
Motion on the Recruitment of Child Soldiers, para. 19.
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 disqualication: [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 ndings.
41
Presence of the accused at trial
The accused has a fundamental right to be present at trial. The Secretary-
Generals 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
Delalic et al. (IT-96-21-T), Decision of the Bureau on Motion on Judicial Independence,
4 September 1998.
41
42
tion 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. 364365.
43
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.
44
Maleki v. Italy (No. 699/1996), UN Doc. CCPR/C/66/D/699/1996, 27 July 1999, para. 9.5.
45
the Former Yugoslavia, (1999) 93 American Journal of International Law 57, at p. 75.
46
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.
defendants 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
rst 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 Tribunals 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 pro-
ceedings 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 expedit-
ing proceedings at the ICTY suggested that in absentia trials be considered in
the case of an accused who has voluntarily surrendered, acting on the assump-
tion 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
The SCSL might be tempted to proceed in this way against its famous outstanding
defendant, Charles Taylor, who was granted asylum in Nigeria.
47
ICTY Statute, art. 21(4)(d); ICTR Statute, art. 20(4)(d); SCSL Statute, art. 17(4)(d).
48
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. 547622, at p. 554.
49
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.
50
ThieroV and Amley, Proceeding to Justice, at p. 260.
51
52
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 rst 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 in-
sisting 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 Barletta-
Calderera, 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 extra-
ordinary 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
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.
54
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. 315316.
55
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.
56
prevail is tantamount to judicial abdication of the principle of legality and
a capitulation to a frustration of the ends of justice without justication.
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 fromthe courtroomand continue the proceedings in the absence of the
accused if the accused has persisted in disruptive conduct.
58
With reference to
this provision, the ICTYAppeals Chamber reasoned that it was also legitimate
to restrict an accused persons 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 tness 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 Milosevic trial in
the absence of the accused, whose medical condition regularly results in
postponements. The Prosecutor has argued that Milosevic sabotaged his
medication regimen to induce periods of poor health articially, but the Trial
Chamber explicitly declined to make a nding 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 defen-
dant. 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
Gbao (SCSL-04-15-T), Ruling on the Issue of the Refusal of the Third Accused, Augus-
tine 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 Proceed-
ings, 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.
58
The texts of Rule 80(B) in the three RPE diVer slightly, although their substance is the
same.
59
60
SCSL RPE, Rule 80(B). The Prosecutor has proposed that a video link be established so
that the Milos evic trial can proceed in the absence of the defendant, so as to ensure that
the case proceeds in his eVective presence: Milos evic (IT-02-54-T), Reasons for Deci-
sion on Assignment of Defence Counsel, 22 September 2004, para. 22.
61
62
Milos evic (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22
63
Decision on the Assignment of Defence Counsel, 1 November 2004, para. 18, fn. 55.
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 bargain-
ing that is widespread in some common law jurisdictions. Plea bargaining
often involves a negotiated settlement between prosecutor and defence coun-
sel 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 nd 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
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.
66
Blas kic (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.
67
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. 151163; 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.
68
Jelisic (IT-95-10-T), Judgment, 14 December 1999, para. 25. Also: Todorovic (IT-95-9/1),
Sentencing Judgment, 31 July 2001, paras. 2326.
The rst 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
dening 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 conrming
that both formal and substantive conditions were met. The judgment
explained:
The Trial Chamber would rst 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 justication or excuse to the
charge might exist despite his acceptance of guilt, the Trial Chamber con-
cluded 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 some-
thing signicantly less by both the Prosecutor and his own counsel. On appeal,
the guilty verdict was reversed because the ICTYAppeals 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 codied 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 ve years imprisonment. It was an important mes-
sage to other accused that they might benet from clemency if they would
69
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 13.
70
Erdemovic (IT-96-22-A), Judgment, 7 October 1997.
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 pro-
mises have been made between the parties with respect to sentence which, it is
acknowledged, is at the discretion of the Trial Chamber. The Prosecutor
conrmed that Kambandas cooperation was recognised by signicant pro-
tection 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
specied.
72
The ICTR Trial Chamber was not particularly impressed with
Kambandas guilty plea, because he failed to express any remorse or contri-
tion. 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
benet 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 com-
pelled 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 inuenced 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
71
72
Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, paras. 4849.
73
Kambanda (ICTR 97-23-A), Judgment, 19 October 2000, paras. 5758.
74
Ibid., paras. 6263.
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. Further-
more, there must be a suYcient factual basis for the crime and the accuseds
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 submis-
sions with respect to sentencing that have been agreed upon or undertake not
to oppose the defences submission. The Rule species 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. Kambandas treat-
ment 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
fteen 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 ICTYAppeals 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 reects 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
75
ICTR RPE, Rule 62bis.
76
Ralph Henham and Mark Drumbl, Plea Bargaining at the International Criminal
Tribunal for the Former Yugoslavia, (2005) 16 Criminal Law Forum 49.
77
Serushago (ICTR-98-39), Sentence, 5 February 1999.
78
Serushago (ICTR-98-39-A), Reasons for Judgment, 6 April 2000.
79
Ruggiu (ICTR-97-32-T), Judgment, 1 June 2000.
80
Rutaganira (ICTR-95-1C-0022), Jugement portant condamnation, 14 March 2005.
bound by any agreement between the parties, in the specic context of a
sentencing judgement following a plea agreement, the Appeals Chamber
emphasizes that Trial Chambers shall give due consideration to the recom-
mendation 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 Prosecutors 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 recommen-
dations. In one case, the Prosecutor proposed a sentence of fteen 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 Prose-
cutor 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,
81
Dragan Nikolic (IT-02-60/1-A), Judgment on Sentencing Appeal, 4 February 2005,
para. 89.
82
Momir Nikolic (IT-02-60-PT), Amended Plea Agreement, 7 May 2003, paras. 9, 14.
83
Dragan Nikolic (IT-94-2-S), Sentencing Judgment, 18 December 2003.
84
Dragan Nikolic (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005.
85
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.
the admitted facts are set out in the agreement, and this may not reect 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
accuseds 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 Prosecutors 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
accuseds 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 testi-
mony. 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; prosecu-
tion 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
86
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.
87
88
89
Giuliano Turone, The Denial of the Accuseds Right to Make Unsworn Statements in
Delalic , (2004) 2 Journal of International Criminal Justice 455.
90
91
Delalic et al. (IT-96-21-T), Decision on the Prosecutions Alternative Request to Reopen
the Prosecutions Case, 19 August 1998, para. 23.
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 proce-
dure 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),
reects the practice in many common law jurisdictions, notably the United
Kingdom and Australia, requiring that if an accused testies in his or her case,
he or she must do it rst, before the defence witnesses.
92
Semanza (ICTR-97-20-T), Decision on the Prosecutors Motion for Leave to Call
Rebuttal Evidence and the Prosecutors Supplementary Motion for Leave to Call Rebut-
tal Evidence, 27 March 2002.
93
94
Original ICTY RPE, Rule 100; ICTR RPE, Rule 100.
95
96
ICTY RPE, Rule 85(vi); ICTR RPE, Rule 85(vi).
97
98
Vasiljevic (IT-98-32-A), Judgment, 25 February 2004, para. 177.
99
SCSL RPE, Rule 100(A).
100
ICTY RPE, Rule 85(C); ICTR RPE, Rule 85(C); SCSL RPE, Rule 85(C).
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 insuY-
cient 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,
as to the applicable test at the Rule 98bis stage. In Kordic and C
erkez, an ICTY
Trial Chamber said the test to be applied was not whether there was evidence
that satised 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 subject-
matter 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 Prosecutions case, bear a close
resemblance to applications for no case to answer in common law jur-
isdictions. 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
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 inuenced 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 modication 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 witnesss testimony. However,
there is a distinction which has to be drawn between the credibility of a
witness and the reliability of that witnesss 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 identication,
[because] special caution has been found to be necessary before accepting
identication evidence because of the possibility that even completely
honest witnesses may have been mistaken in their identication.
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 satised 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
101
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.
102
Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal,
2 February 2005, para. 11.
103
Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Decision on Motion for Acquittal, 3 July
2000. Also: Kvoc ka 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 Kamuhandas Motion for Partial Acquittal
Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 20 August 2002.
104
2000, para. 3 (emphasis in the original). These views were endorsed by the ICTYAppeals
Chamber: Jelisic (IT-95-10-A), Judgment, 5 July 2001, para. 36. Also: Kamuhanda
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 other-
wise 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 justication 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 lan-
guages 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 specic 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 his-
torical background to the conict. 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 ndings 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
owing from the right to a fair trial.
110
This does not mean that the Trial
(ICTR-99-54A-T), Decision on Kamuhandas Motion for Partial Acquittal Pursuant to
Rule 98bis of the Rules of Procedure and Evidence, 20 August 2002.
105
2000.
106
para. 9.
107
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).
108
Tadic (IT-94-1-AR72), Separate Declaration of Judge J. Deschenes on the Defence
Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
109
ICTY RPE, Rule 98ter(D).
110
Georgiadis v. Greece, 29 May 1997, European Court of Human Rights, Report 1997-III.
Chamber is required to justify its ndings on every single submission of
the defence. Trial Chambers have some discretion in deciding which legal
arguments to address. As for factual ndings,
the Trial Chamber is required only to make ndings 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 ndings is not addressed by the Trial Chambers
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 Prose-
cutors intention to le 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 ICTYand 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 Agree-
ments, 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 con-
tinues for a period of fteen 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
111
Kvoc ka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 23 (reference omitted).
112
ICTY RPE, Rule 99.
113
Agreement between the United Nations and the Kingdom of the Netherlands concern-
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).
114
Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 16.
Cumulative convictions
The crimes within the jurisdictions of the tribunals are derived from diVerent
sources, both customary and conventional, and when they were rst dened
they were never intended to be part of a coherent and comprehensive codi-
cation of serious violations of international humanitarian law. As a result,
there is considerable overlap, and a distinct criminal act may well t within
the denition 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, conrmed that reasons of fair-
ness to the accused and the consideration that only distinct crimes may justify
multiple convictions, lead to the conclusion that multiple criminal convic-
tions 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
115
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.
116
Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369370. 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; Kupres kic
et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, paras. 387388.
117
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.).
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 cumu-
lative 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 reects the totality of the
accuseds 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, con-
sidered 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. How-
ever, 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 specic 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 justied 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 reected 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 cate-
gories contain distinct elements.
122
War crimes, of course, require both the
existence of an armed conict and a nexus between the acts of the individual
and the armed conict. Neither crimes against humanity nor genocide require
118
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 172. Also: Semanza (ICTR-
97-20-T), Separate and Dissenting Opinion of Judge Pavel Dolenc, 15 May 2003,
para. 13.
119
120
121
Ibid., para. 454.
122
Kupres kic 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.
a nexus with armed conict, 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 connement 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 extermina-
tion 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 Cham-
ber 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 popula-
tion.
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 com-
mitted 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
For the various authorities, see: William A. Schabas, Genocide in International Law: The
Crime of Crimes, Cambridge: Cambridge University Press, 2000, at p. 11.
124
Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369370; Ntakiruti-
mana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 864;
125
Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369370.
126
Ibid., para. 366.
127
Krstic (IT-98-33-T), Judgment, 2 August 2001, paras. 219227; Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, paras. 577578, 590.
128
Krstic (IT-98-33-A), Judgment, 19 April 2004, paras. 219227.
evident within the diVerent categories of war crimes, even if they are dened
in separate provisions that reect 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 specic 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 intra-
article 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 appar-
ently 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
humanity of inhumane acts.
133
In Kordic and C
erkez, the Appeals Chamber

revisited the question and reversed its previous jurisprudence, although by a
bare majority.
134
According to the Appeals Chamber, persecution requires
proof of a specic intent to discriminate and that the act or omission did in
fact discriminate, whereas the crime against humanity of murder requires an
129
130
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 422423; Jelisic (IT-95-
10-A), Judgment, 5 July 2001, para. 82.
131
132
Vasiljevic (IT-98-32-A), Judgment, 25 February 2004, para. 146; Krstic (IT-98-33-A),
Judgment, 19 April 2004, para. 231.
133
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 188; Vasiljevic (IT-98-
32-A), Judgment, 25 February 2004, para. 146; Krstic (IT-98-33-A), Judgment, 19 April
2004, para. 231.
134
See Kordic et al. (IT-95-14/2-A), Joint Dissenting Opinion of Judge Schomburg and
Judge Guney on Cumulative Convictions, 17 December 2004.
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 specic 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 sub-
sumes the less serious (lex consumens derogat legi consumptae).
139
The ratio-
nale 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 fun-
damental 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
135
136
Ibid., paras. 10421043.
137
138
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 413. See also Krstic (IT-
98-33-A), Judgment, 19 April 2004, para. 218.
139
140
141
tion 808 (1993), UN Doc. S/25704 (1993), para. 116.
142
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 104109.
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 proceed-
ings, underscores the importance of appeals in the overall scheme of the
tribunals.
145
Indeed, the Nuremberg Charter specied that the trial judgment
shall be nal and not subject to review, although it allowed political autho-
rities 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
143
144
145
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.
146
(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.
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-Generals 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 diVer-
ent, 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 specic counts
in an indictment.
154
The ICTY Appeals Chamber has also made new ndings
147
tion 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.
148
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.
149
150
151
152
Dragan Nikolic (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 8.
153
154
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 171; Rutaganda (ICTR-96-3-A), Judg-
ment, 26 May 2003. Although the issue was not raised by the parties, Judge Shaha-
buddeen 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 dis-
missed at the conclusion of the Prosecutors 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
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 conrmed in
common Rule 99(B), which authorises a Trial Chamber to order the contin-
ued 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 signicance to the Tribunals jurisprudence. Accordingly,
consideration of an issue of general signicance is appropriate since its
resolution is important to the development of the Tribunals 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 justied in light
of the Appeals Chambers role in unifying the applicable law. Indeed, the
Appeals Chamber must provide guidance to the Trial Chambers in inter-
preting the law. Such a role of the nal arbiter of the law of the Tribunal,
must be dened 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 determina-
tion of the nature and scope of interlocutory appeals has been dened 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 chal-
lenged, the Appeals Chamber ruled that there was no fundamental right to
an appeal from an interlocutory decision.
159
Under the ICTYand ICTR RPE,
already lengthy sentence for crimes against humanity: Jelisic (IT-95-10-T), Partial Dis-
senting 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.
155
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 155172, 189, 192(6).
156
Bagilishema (ICTR-95-1A-A), Judgment, 3 July 2002. In paragraph 8, the ICTR Appeals
Chamber said that [c]e type dappel est prevu 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.
157
158
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 21; Furundzija (IT-95-17/1-A),
Judgment, 21 July 2000, para. 35.
159
interlocutory appeal is allowed in the case of motions challenging jurisdiction,
and in all other cases where the Trial Chamber has certied that the decision
involves an issue that would signicantly 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 nding.
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 nding of contempt of court
163
or perjury.
164
If
the prosecution for contempt of court takes place before the Appeals Cham-
ber, the appeal is made to the President of the Tribunal, who assigns ve 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 produc-
tion of documents if the ruling would cause such prejudice to the party as
could not be cured by the nal 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
160
E.g., Brdanin et al. (IT-99-36-T), Decision to Grant Certication to Appeal the Trial
Chambers Decision on Motion to Set Aside Condential Subpoena to Give Evidence,
19 June 2002.
161
ICTY RPE, Rules 72, 73.
162
ICTY RPE, Rule 15bis(D); ICTR RPE, Rule 15bis(D).
163
ICTY RPE, Rule 77(J); ICTR RPE, Rule 77(J); SCSL RPE, Rule 77(J).
164
ICTY RPE, Rule 91(I); ICTR RPE, Rule 91(I); ICTY RPE, Rule 91(B).
165
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.
166
ICTY RPE, Rule 54bis(C).
167
ICTY RPE, Rule 65(D); ICTR RPE, Rule 65(D); SCSL RPE, Rule 65(E).
168
SCSL RPE, Rule 65(G).
169
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.
development of trial proceedings, in that the decision by the Appeals Chamber
would seriously impact upon further proceedings before the Trial Cham-
ber.
170
An interlocutory appeal will not necessarily stay the proceedings at
rst 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 le 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) (lacte dappel, ecrit 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
led, 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
170
Blas kic (IT-95-14-PT), Decision, 14 October 1996.
171
Norman et al. (SCSL-04-14-T), Decision on Presentation of Witness Testimony on
Moyamba Crime Base, 1 March 2005.
172
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.
173
174
Bagilishema (ICTR-95-1A-A), Decision on the Defences Motion to have the Prosecu-
tors Notice of Appeal Declared Inadmissible, 26 October 2002.
175
Delalic et al. (IT-96-21-T), Decision on the Alternative Request for Renewed Considera-
tion of Delalics 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.
176
ICTR RPE, Rule 108bis; SCSL RPE, Rule 109.
177
178
ICTY RPE, Rule 115; ICTR RPE, Rule 11; SCSL RPE, Rule 1155. Additional evidence on
appeal is discussed in chapter 12 below at pp. 483484.
Appellant rst prepares a brief, to which the Respondent replies. The Ap-
pellant may then submit a Brief in Reply, which is to be limited to argu-
ments in reply to the Respondents Brief. When all of the Briefs have been
led, 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 Kupres kic , the ICTYAppeals
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 signicance to the
Tribunals 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
identies an error of law invalidating the decision. Consequently, not every
error of law justies a reversal or revision of a decision of a Trial Chamber.
184
According to the ICTY Appeals Chamber,
179
ICTY RPE, Rules 111114; ICTR RPE, Rules 111114; SCSL RPE, Rules 111114.
180
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 13. Also: Kordic et al. (IT-95-14/2-
A), Judgment, 17 December 2004, paras. 2122.
181
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 22 (footnotes
omitted).
182
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.
183
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. 4748; Vasiljevic (IT-98-32-A), Judgment, 25 February 2004, para. 12;
184
[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, nd 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
ndings 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 nding 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 dened 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 fteen years.
190
The Appeals Chamber acknowledges a margin of deference to a nding 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
nding for that of the Trial Chamber. It must be borne in mind that two
185
186
187
Ibid., para. 16.
188
189
190
Vasiljevic (IT-98-32-A), Judgment, 25 February 2004, paras. 141, 182.
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 ndings 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 ICTRAppeals Chamber, [i]t is open to the Appeals
Chamber, as the nal arbiter of the law of the Tribunal, to nd 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 nds that their resolution is
likely to contribute substantially to the development of the Tribunals
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 nd 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 signicance. Indeed, the issues raised must be of interest
191
192
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), Judg-
ment, 19 April 2004, para. 40; Krnojelac (IT-97-25-A), Judgment, 17 September 2003,
paras. 1113, 39; Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 64; Delalic et al. (IT-
96-21-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.
193
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 6; Kajelijeli (ICTR-98-44A-
A), Judgment, 23 May 2005, para. 208.
194
Kambanda (ICTR 97-23-A), Judgment, 19 October 2000, para. 98. Also: Vasiljevic (IT-
98-32-A), Judgment, 25 February 2004, para. 12; Kvoc ka et al. (IT-98-30/1-A), Judg-
ment, 28 February 2005, para. 16; Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005,
para. 208.
to legal practice of the Tribunal and must have a nexus with the case at
hand.
195
In the very rst 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 gured in
the notice of appeal. Indeed, the notice of appeal only concerned the sentence,
but the Appeals Chamber saw t 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 conne 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 jurispru-
dence, 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 nds 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 nds 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
Erdemovic (IT-96-22-A), Judgment, 7 October 1997, para. 16.
197
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. 185186.
198
Kvoc ka et al. (IT-98-30/1-A), Separate Opinion of Judge Weinberg de Roca, 28 February
2005, para. 8. Also: Blas kic (IT-95-14-A), Partial Dissenting Opinion of Judge Weinberg
de Roca, 29 July 2004.
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
preferable in the circumstances of the case.
201
In C
elebic i, a number of issues

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 signicance 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
Karemera et al. (ICTR-98-44-PT), Decision on Prosecutors 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.
200
201
Tadic (IT-94-1-A), Order Remitting Sentencing to a Trial Chamber, 10 September 1999,
p. 3.
202
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 711 (emphasis added).
Yet in Aleksovski, the ICTYAppeals 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 funda-
mental right to an appeal, which is enshrined in article 14(5) of the Inter-
national 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 rst 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 Tribunals Statute which, as the United Nations Secretary-
General state[d] in his report of 3 May 1993 (S/25704), must respect the in-
ternationally recognized standards regarding the rights of the accused in-
cluding Article 14 of the [ICCPR]. The Appeals Chamber held that [a]rticle
14 of the International Covenant reects an imperative norm of international
law to which the Tribunal must adhere.
207
In Jelisic , the Appeals Chamber overturned an acquittal by the Trial Cham-
ber, 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
203
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000.
204
Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003. See also:
ibid., Separate Opinion of Judges Meron and Jorda.
205
Milan Vujin, 31 January 2000.
206
Tadic (IT-94-1-A-AR77), Decision on the Application for Leave to Appeal, 25 October
2000.
207
Counsel, Milan Vujin, 27 February 2001, p. 3 (emphasis added).
208
Jelisic (IT-95-10-A), Judgment, 5 July 2001, paras. 7277.
209
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.
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 specically 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, dened 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 develop-
ments, 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 ex-
ceptional 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 nal
judgment. The Prosecutor may only apply for review within one year after
210
211
Jelisic (IT-95-10-R), Decision on Motion for Review, 2 May 2002, p. 3.
212
Tadic (IT-94-1-R), Decision on Motion for Review, 30 July 2002, para. 25.
213
Ibid., para. 41.
214
Delic (IT-96-21-R-R119), Decision on Motion for Review, 25 April 2002, p. 7.
215
216
ICTY RPE, Rule 119; ICTR RPE, Rule 120. The requirement has been omitted from
SCSL RPE, Rule 120.
217
sideration), 31 March 2000, para. 65; Tadic (IT-94-1-R), Decision on Motion for Review,
30 July 2002, paras. 2627.
nal judgment. This curious exception to the general rule of equality between
the parties is set out in the RPE, and nds 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 led with respect to decisions that put an
end to proceedings.
218
Rulings by a Pre-Hearing Judge of the Appeals Cham-
ber
219
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 satised 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 circum-
stances.
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 Tribunals 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
Semanza (ICTR-97-20-A), Arret (Requete en revision de la decision de la Chambre
dappel 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. 1011.
219
Known as a Pre-Appeal Judge at the ICTR: ICTR RPE, Rule 108bis.
220
Bagilishema (ICTR-95-1A-A), Judgment (Reasons), 3 July 2002, paras. 1011.
221
Tadic (IT-94-1-R), Decision on Motion for Review, 30 July 2002, para. 22.
222
and Admission of Additional Evidence, 15 October 1998.
223
SCSL RPE, Rule 121.
224
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 respon-
sible 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-Generals 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 inuenced by principles drawn from the international law of human
1
82 UNTS 279, annex, art. 19.
2
Richard May and Marieke Wierda, Trends in International Criminal Evidence: Nurem-
berg, Tokyo, The Hague, and Arusha, (1999) 37 Columbia Journal of Transnational Law
725, at pp. 729730 (references omitted).
3
ICTY RPE, Rules 8998. Also: ICTR RPE, Rules 8998; SCSL RPE, Rule 8998.
4
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).
452
rights, for example the exclusionary rule.
5
Other developments manifest a
greater concern with witness protection, major reforms in the area of evi-
dence in cases of sexual assault, as well as some important technological
developments, such as DNA testing.
6
The international tribunals have been
strongly inuenced by common-law approaches, which favour the presenta-
tion 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 evi-
dence.
8
According to an ICTY Trial Chamber, the Tribunals jurisprudence
warns against the importation of domestic procedures lock, stock and barrel
into the Tribunals 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
procedure before this Tribunal.
10
In C
elebic i, another Trial Chamber said:

A Rule may have a common law or civilian origin but the nal 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
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.
6
May and Wierda, Trends in International Criminal Evidence, at pp. 733734.
7
ICTY RPE, Rule 89(A); ICTR RPE, Rule 89(A); SCSL RPE, Rule 89(A).
8
9
para. 7.
10
Jelisic (IT-95-10-A), Partial Dissenting Opinion of Judge Pocar, 5 July 2001.
11
Delalic et al. (IT-96-21-T), Decision on Motion on Presentation of Evidence by the
Accused, 1 May 1997, para. 15.
E V I D E N C E 453
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 conicts 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 exam-
ination 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 theore-
tical problems. When Kupreskic 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 conrmed Akayesus insis-
tence on having his assigned counsel withdrawn, but that they could not have
any probative value with respect to the allegation that his counsel was in-
competent, because they emanated from him.
17
Purely documentary evidence
of fact about what happened as part of the judicial investigative process
12
Kordic et al. (IT-95-14/2-AR73.5), Decision on Appeal regarding Statement of a Deceased
Witness, 21 July 2000. Also: Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October
2001, para. 56 (residual discretion).
13
14
Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16
February 1999, esp. paras. 424.
15
ICTY Statute, art. 21(4)(e); ICTR Statute, art. 20(4)(e); SCSL Statute, art. 17(4)(e).
16
Kupres kic 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.
17
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 Chambers 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 Prosecutors 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 Inves-
tigations 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 le, 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 admis-
sibility 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
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.
19
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.
20
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.
21
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.
22
Milos evic (IT-02-54-AR73.2), Decision on Admissibility of Prosecutions Investigator
Evidence, 30 September 2002, para. 21.
23
Tadic (IT-94-1-T), Decision on the Defence Motion on Hearsay, 5 August 1996; Blas kic
(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.
E V I D E N C E 455
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 innitely 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 bet-
ween 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 specically addressed in Rule 95, which says that
[n]o evidence shall be admissible if obtained by methods which cast sub-
stantial 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
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 6264; Kordic et al. (IT-95-
14/2-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-96-21-
T), Decision on the Prosecutions 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.
26
Delalic et al. (IT-98-21-T), Decision on the Admissibility of Exhibit 155, 19 January
1998, para. 32.
27
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 Identication, 25 February 2002.
28
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 admis-
sion of polygraph evidence, concluding that the consensus in the scientic
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 state-
ment 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 admis-
sibility.
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 accuseds 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 nd the use of prior witness statements as a substitute
for live testimony troublesome. In my short time at the Tribunal I have
29
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.
30
Kordic et al. (IT-95-14/2-AR73.5), Decision on Appeal Regarding Statement of a
Deceased Witness, 21 July 2000.
31
Kordic (IT-95-14/2-AR73.5), Decision on Application for Leave to Appeal and Schedul-
ing Order, 28 March 2000.
32
Deceased Witness, 21 July 2000, p. 18.
33
Ibid., p. 20.
34
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 Interna-
tional Law Journal 47.
E V I D E N C E 457
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 eld 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 innitely 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 ones torturer, reliving awful times,
and defending ones account on cross-examination may sometimes be
indispensable to the integrity of the Tribunals nal 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 pre-
industrial 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 testied 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 articial 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 Tribunals 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 admis-
sion of such evidence is prohibited by a rule of customary international law.
The Trial Chamber said that customary international law recognised a pri-
vilege for the International Committee of the Red Cross attaching to its
35
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.
36
Norman et al. (SCSL-04-14-AR65), Fofona Appeal Against Decision Refusing Bail, 11
March 2005.
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 sub-
stantially 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 Chambers 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 Chambers 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 culp-
ability 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 satises the criteria of relevance and probative value should never-
theless 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
Ruling Concerning the Testimony of a Witness, 27 July 1999, paras. 4042 (see also
paras. 74, 76, 80).
38
39
Brdanin et al. (IT-99-36-T), Decision on Motion to Set Aside Condential Subpoena to
Give Evidence, 7 June 2002.
40
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 Condential
Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23 May 2002.
E V I D E N C E 459
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 admis-
sion 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 specically chose not to set out a rule providing
for the automatic exclusion of evidence illegally or unlawfully obtained.
42
In Kordic and C
erkez, for example, Judge May said that even if the illegality
was established . . . [w]e have come to the conclusion that the evidence
obtained . . . by eavesdropping on an enemys telephone calls during the
course of a war is certainly not within the conduct which is referred to in
Rule 95. Its 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 conict 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
Chamber in C
elebic i because the accused had not been informed of his right
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
The sweeping powers
48
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
Miranda v. Arizona, 384 US 436 (1966). A more nuanced approach is taken in Canada:
Canadian Charter of Rights and Freedoms, s. 24(2).
42
Brdanin (IT-99-36-T), Decision on the Defence Objection to Intercept Evidence, 3
43
Kordic et al. (IT-95-14/2-T), Oral Decision of Judge May, 2 February 2000, Transcript,
pp. 1369313694.
44
Brdanin (IT-99-36-T), Decision on the Defence Objection to Intercept Evidence, 3
45
Delalic et al. (IT-96-21-T), Decision on Zdravko Mucics Motion for the Exclusion of
Evidence, 2 September 1997.
46
Mucic Concerning the Issue of a Subpoena to an Interpreter, 8 July 1997.
47
48
of law. This amounts to a general authorisation to judges to devise eviden-
tiary rules in the absence of an applicable provision in the Rules. It is de-
signed 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 exibility and
eYcacy. The RPE are broader than the evidentiary regimes in both the
common and civil law systems and they reect 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
Kupres kic , 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 Pro-
secution 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 unan-
nounced alibi defence. The Trial Chamber rejected the request of the
defence.
52
In Rutaganda, defence counsel objected that expert witnesses were heard
without rst determining, in an adversarial debate, whether or not they were
in fact properly qualied. 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
specic procedure for admitting an expert witnesss report without hearing
49
50
Bagosora et al. (ICTR-96-7-T), Decision on the Defence Motion for Pre-determination of
Rules of Evidence, 8 July 1998.
51
Kupres kic et al. (IT-95-16-T), Decision on Communication Between the Parties and
their Witnesses, 21 September 1998.
52
Semanza (ICTR-97-20-T), Decision on Defence Motion for Leave to Call Rejoinder
Witnesses, 30 April 2002.
E V I D E N C E 461
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 qualications of the persons called as experts by
the Prosecution claried during their examination-in-chief by the Prose-
cution 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 Chambers exercise of discre-
tion 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
Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 Feb-
ruary 1999, para. 22.
55
Nyiramasuhuko et al. (ICTR-97-21-T), Decision on the Prosecutors Motion for Judicial
Notice and Admission of Evidence, 15 May 2000, paras. 13, 35, 140.
56
Ibid., para. 23.
57
58
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.
59
Appeals Chamber has criticised a Trial Chamber that found implicit support
for the application of national rules of evidence in the application of com-
mon Rule 89(B).
60
It conrmed 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 specic oVence beyond a reasonable doubt before there
can be a conviction. In C
elebic i, an ICTY Trial Chamber said that the

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 benet 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 dening the
notion of reasonable doubt, generally in an attempt to provide clear instruc-
tions for lay jurors. This is surely less important for experienced judges such
as those likely to be elected to the Tribunal. In C
elebic i, the Trial Chamber

of the ICTY adopted a common-law denition:
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
Delalic et al. (IT-96-21-T), Decision on Zdravko Mucics Motion for the Exclusion of
Evidence, 2 September 1997, para. 34.
61
62
E.g., Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, paras. 33, 42; Semanza
63
ICTY RPE, Rule 87(A); ICTR RPE, Rule 87(A); SCSL RPE, Rules 87(A), 98.
64
UN Doc. E/CN.4/365, UN Doc. E/CN.4/SR.156.
65
General Comment 13/21, UN Doc. A/39/40, pp. 143147, para. 7.
66
67
E V I D E N C E 463
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 Tribunals judges are not lay jurors, and the reference of the
Tribunal in C
elebic i is unnecessary. According to United States case law,

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 accuseds 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, reective person charged with the responsibility of deci-
sion, 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 reason-
able 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 reason-
able doubt when it entertained the remote possibility that ve 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 dene 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
Ibid., para. 600; citing Green v. R, (1972) 46 ALR 545.
69
Victor v. Nebraska, 127 L.Ed.2d 583 (1994).
70
Cage v. Louisiana, 498 US 39 (1990); Sullivan v. Louisiana, 113 SCt 2078 (1993).
71
May andWierda, Trends inInternational 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).
72
United States v. Pohl et al., (1948) 5 TWC 1, p. 965 (United States Military Tribunal).
73
International Law 172, pp. 302, 318.
74
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 181183. For the proposals of the
Prosecutor, see para. 174.
75
Simic et al. (IT-95-9-R77), Judgment in the Matter of Contempt Allegations Against an
Accused and his Counsel, 30 June 2000.
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 pre-
ponderance 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 deter-
mines 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 circum-
stances; (ii) any mitigating circumstances including the substantial coopera-
tion 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 cir-
cumstances must be proven beyond a reasonable doubt, but that mitigating
circumstances need only be established on a balance of probabilities.
86
76
Kvoc ka et al. (IT-98-30/1-A), Decision on Review of Registrars Decision to Withdraw
Legal Aid from Zoran Z
igic, 7 February 2003, para. 17.

77
Ibid., para. 14.
78
79
ICTY RPE, Rules 92bis(C)(i), 105(D); ICTR RPE, Rules 92bis(C)(i), 105(D).
80
81
82
83
Ruggiu (ICTR-97-32-T), Judgment, 1 June 2000, paras. 4751.
84
Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 2730.
85
Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 6162.
86
Delalic et al. (IT-96-2.1-A), Judgment, 20 February 2001, para. 763; Kunarac et al. (IT-
96-23-Tand IT-96-23/1-T), Judgment, 22 February 2001, para. 847; Simic (IT-95-9/2-S),
Sentencing Judgment, 17 October 2002, para. 40.
E V I D E N C E 465
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 con-
rmed 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 conrming judge that a prima
facie case exists justifying prosecution.
90
This requires suYcient information
which justies 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
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 590. Also: Vasiljevic (IT-
98-32-T), Judgment, 29 November 2002, paras. 282, 292; Sikirica et al. (IT-95-8),
Sentencing Judgment, 13 November 2001, para. 197.
88
Blas kic (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;
89
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.
90
91
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.
92
Ibid.
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 ndings of fact into question where
there is reliable evidence on which the Trial Chamber might reasonably
have based its ndings . . . A party suggesting only a variation of the
ndings 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 nding.
94
The suggestion is that on appeal, there is a burden of proof beyond a reason-
able 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 identication 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 specic 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
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.
95
96
Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 17.
E V I D E N C E 467
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 trans-
fer of a suspect. In Blas kic , 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 Rules
99
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 compul-
sory order.
100
The tribunals cannot issue subpoenae to States
101
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 docu-
ments was extended to apply to an international organisation or a competent
97
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.
98
99
There is no French-language version of the SCSL Rules.
100
101
Ibid., para. 25.
102
Kovac evic (IT-97-24-PT), Decision Refusing Defence Motion for Subpoena, 23 June
1998.
103
Krstic (IT-98-33-PT), Binding Order to the Republika Srpska for the Production of
Documents, 12 March 1999.
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 conclu-
sions 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 testied 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 sub-
poena, 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 con-
sidered 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 sub-
poena 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 rst 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 Prose-
cutor, Judge Riad ordered Erdemovics transfer and provisional detention
104
Simic et al. (IT-95-9-PT), Decision on Motion for Judicial Assistance to be provided by
SFOR and Others, 18 October 2000.
105
Ibid., para. 46.
106
Blas kic (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.
107
E.g., Blas kic (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: Furundzija (IT-95-17/1-T), Judgment, 10 Decem-
ber 1998, paras. 2127.
108
Kupres kic 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.
109
Delalic et al. (IT-96-21-T), Subpoena ad testicandum to Nurko Tabak, 25 June 1998;
Delalic et al. (IT-96-21-T), Subpoena ad testicandum to Zlatko Ustalic, 1 July 1998.
110
E V I D E N C E 469
in the ICTY Detention Unit, for the purpose of testifying in the Karadz ic and
Mladic Rule 61 hearing.
111
Aside from the Erdemovic , case Rule 90bis has not proven particularly
signicant 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 impor-
tant 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, testimo-
nial 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 exibility,
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
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.
113
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
Prosecutors 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 requete du
Procureur demandant au Tribunal dordonner le transferement dun temoin detenu (GK)
en vertu des articles 90bis et 73 a) du re`glement, 11 December 2002; Gacumbitsi (ICTR-
01-64-0051), Decision Concerning the Prosecutors 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.
114
Bagosora et al. (ICTR-98-41-T), Order for the Transfer of Detained Prosecution Witness
Omar Serushago, 2 October 2002.
115
ICTY RPE, Rule 89(F). There is no equivalent provision in the ICTR or SCSL RPE.
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 insignicant thug propelled by circumstance to the centre stage of inter-
national criminal law, many of the trials have dealt with leaders. Indeed,
the longest of them all, only half-nished at the time of writing this book, is
that of Slobodan Milosevic, 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 testies about facts about
which he or she has personal knowledge. An expert testies about opinions
that he or she is deemed qualied 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 declara-
tion, if the Chamber is of the opinion that the child is suYciently mature to
116
May and Wierda, Trends in International Criminal Evidence, at p. 744.
117
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.
118
Jelisic (IT-95-10-T), Decision on Communication Between Parties and Witnesses, 11
December 1998.
119
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., Blas kic (IT-95-
14-T), Decision of Trial Chamber I in respect of the Appearance of Colonel Robert
Stewart, etc., 25 March 1999.
120
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.
E V I D E N C E 471
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 rst asked to testify in chief. During that testimony,
the party presenting that witness may assist the witness in providing a narra-
tive 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 cross-
examining 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 testied should not be present when the testi-
mony 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 prohibi-
tion is without exception, but it would seemtoo 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 disqualied from testifying.
125
If
121
ICTY RPE, Rule 90(B); ICTR RPE, Rule 90(B).
122
123
ICTY RPE, Rule 90(H)(iii); ICTR RPE, Rule (G)(iii).
124
Delalic et al. (IT-96-21), Decision on the Motion on Presentation of Evidence by the
Accused, 1 May 1997.
125
ICTY RPE, Rule 90(C); ICTR RPE, Rule 90(C); SCSL RPE, Rule 90(D).
a witness were determined to watch other witnesses testify prior to the
witnesss own testimony, this would be a simple matter, given that proceed-
ings 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 partys 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 communica-
tion 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 inuence or aVect the witnesss 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 rst
126
ICTY RPE, Rule 90(D).
127
December 1998.
128
Kupres kic (IT-95-16-T), Decision on Communication Between the Parties and Their
Witnesses, 21 September 1998.
129
December 1998.
130
ICTY RPE, Rule 90(E); ICTR RPE, Rule 90(E); SCSL RPE, Rule 90(E).
131
Ntagerura (ICTR-99-46-T), Decision on Ntageruras 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.
132
E V I D E N C E 473
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 Eur-
opean Court of Human Rights were meant to apply to ordinary criminal
jurisdictions. Explaining that the International Tribunal was adjudicating
crimes considered so horric 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 ICTYs 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
conrmation procedure, although their identity is subsequently revealed to
the defendant in the context of the disclosure process.
136
Sometimes they have
testied 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 testied
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
for Victims and Witnesses, 10 August 1995, para. 28.
134
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 Proce-
dural 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.
135
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.
136
Musabyimana (ICTR 2001-62-T), Decision on Samuel Musabyimanas Motion to
Exclude Anonymous Prosecutorial Witness Statements and to Review the Decision on
Conrmation of the Indictment, 9 September 2002.
137
Third Annual Report of the ICTR, UN Doc. A/53/429 S/1998/857, para. 123.
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 video-
link 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 ight 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 Kvoc ka case.
144
138
ICTY RPE, Rule 71bis; ICTR RPE, Rule 71.
139
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.
140
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.
141
Brdanin et al. (IT-99-36-T), Order for Testimony via Video-Conference Link Pursuant
to Rule 71bis, 9 September 2003; Milos evic (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
142
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.
143
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.
144
E V I D E N C E 475
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 Prosecutors proposal outweighed the benets.
It denied the application, nding 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 witnesss 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 cir-
cumstances, 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
Bagosora et al. (ICTR-98-41-I), Decision on Prosecutors Motion for Deposition of
Witness OW, 5 January 2002.
147
Niyitegeka (ICTR-96-14-T), Decision on the Prosecutors Amended Extremely Urgent
Motion for the Deposition of a Detained Witness Pursuant to Rule 71, 4 October
2001.
148
Kupres kic et al. (IT-95-16-T), Decision on Prosecution and Defence Requests to Proceed
by Deposition, 11 February 1999. Also: Blas kic (IT-95-14-T), Decision on the Prosecutor
and Defence Motions to Proceed by Deposition, 19 February 1998; Kordic et al. (IT-95-
14/2-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.
149
Naletilic et al. (IT-98-34-PT), Decisions on Prosecution Amended Motion for Approval
of Rule 94 ter Procedure (Formal Statements) and on Prosecutors Motion to take
Depositions for Use at Trial (Rule 71), 10 November 2000. See: Fairlie, Due Process
Erosion, at p. 66.
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 testi-
mony, 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 Evi-
dence, which allowed the production of aYdavits provided that they were
led within a specic delay and that the other party did not object to their
admission. If there were an objection, the witness would be called for cross-
examination.
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
150
Kupres kic et al. (IT-95-16-AR73.3), Decision on Appeal by Dragan Papic Against Ruling
to Proceed by Deposition, 15 July 1999.
151
Naletilic et al. (IT-98-34-PT), Decisions on Prosecution Amended Motion for Approval
of Rule 94ter Procedure (Formal Statements) and on Prosecutors Motion to take
Depositions for Use at Trial (Rule 71), 10 November 2000.
152
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 Inter-
national Law Journal 535.
153
ICTY RPE, Rule 90(F); ICTR RPE, Rule 90.
154
ICTY RPE, Rule 94ter (repealed).
155
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.
156
Eighth Annual Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 51.
157
ICTY RPE, Rule 92bis; ICTR RPE, Rule 92bis. See: Sikirica et al. (IT-95-8-T), Decision
on Prosecutions Application to Admit Transcripts under Rule 92bis, 23 May 2001.
E V I D E N C E 477
This evidentiary provision exists to facilitate the admission by way of written
statement of peripheral or background evidence in order to expedite proceed-
ings 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 Krajis nik, 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 con-
cluded 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 conrmation. 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 non-
governmental organisations,
163
books by serious historians, and even
158
159
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.
160
Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, para. 106.
161
Norman et al. (SCSL-04-14-AR73), Fofana Decision on Appeal Against Decision on
Prosecutions Motion for Judicial Notice and Admission of Evidence, 16 May 2005,
para. 26.
162
Ibid., para. 26.
163
Ibid., paras. 4546.
newspaper reports, if they carry a byline and claim to be based upon eye-
witness 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 dened 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 testies
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 circum-
stances, 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
Norman et al. (SCSL-04-14-AR73), Separate Opinion of Justice Robertson, 16 May
2005, para. 13.
165
paras. 4546.
166
167
Tadic (IT-94-1), Decision on the Defence Motion on Hearsay, 5 August 1996; Aleksovski
(IT-95-14/1-AR73), Decision on Prosecutors 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-96-3-
A), Judgment, 26 May 2003, para. 149.
E V I D E N C E 479
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 specic issues of a technical nature, requiring special knowledge
in a specic eld.
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 identication 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 tness
to stand trial, and the accuseds psychological prole.
175
They have also
testied about the history of the conicts,
176
levels of education in civilian
168
May and Wierda, Trends in International Criminal Evidence, at pp. 745746.
169
Tadic (IT-94-1), Decision on the Defence Motion on Hearsay, 5 August 1996; Tadic (IT-
94-1), Opinion and Judgment, 7 May 1997, para. 555.
170
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.
171
172
173
E.g., Kupres kic 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 .
174
E.g., Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 20; Kunarac et al. (IT-
96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 326334.
175
176
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 106; Kvoc ka
et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 8; Milos evic (IT-02-54-T),
populations,
177
composition of military units,
178
demographic issues inclu-
ding ethnic content of specic geographic regions,
179
the reliability of eye-
witness identication evidence,
180
reconciliation and accountability in post-
conict 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 qualication of
experts, and even the expert opinion itself.
183
Because expert testimony con-
sists of the opinion of an individual, it is best answered with a counter-
expertise, rather than an attempt to deny its validity. It has been held that
experts must not only be qualied 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 ndings made in light of these factors and other evidence
accepted by the Trial Chamber.
185
When the qualications 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 detat was denied recognition as an expert on constitutional law after
he admitted that membership of these special bodies is insuYcient to estab-
lish 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
Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 230; Akayesu (ICTR-
96-4-T), Judgment, 2 September 1998, para. 92.
177
E.g., Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 34.
178
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.
179
E.g., Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September
2001, para. 51; Milos evic (IT-02-54-T), Decision on Motion for Judgment of Acquittal,
16 June 2004, para. 236.
180
E.g., Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 138.
181
E.g., Plavs ic (IT-00-39&40/1), Sentencing Judgment, 27 February 2003, para. 27.
182
para. 238.
183
184
Akayesu (ICTR-96-4-T), Decision on a Defence Motion for the Appearance of an
Accused as an Expert Witness, 9 March 1998.
185
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 20; Blagojevic et al. (IT-02-
60-T), Decision on Prosecutions 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.
E V I D E N C E 481
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, certied,
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
186
Bizimungu et al. (ICTR-99-50-T), Oral Decision on Qualication of Prosecution Expert
Jean Rubaduka, 24 March 2005.
187
May and Wierda, Trends in International Criminal Evidence, at p. 748.
188
Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16
189
Brdanin et al. (IT-99-36-PT), Order on the Standards Governing the Admission of
Evidence, 15 February 2002.
190
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 rst 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 nds 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 ICTYAppeals Chamber noted, in Kupres kic , 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
rst 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
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: Blas kic (IT-95-14-A), Judgment, 29 July 2004, Annex A, para. 11.
192
193
and Admission of Additional Evidence, 15 October 1998.
194
Kupres kic et al. (IT-95-16-A), Decision on the Motions of Drago Josipovic, Zoran
Kupreskic and Vlatko Kupreskic to Admit Additional Evidence pursuant to Rule 115
and for Judicial Notice to be taken pursuant to Rule 94(B), 29 May 2001.
E V I D E N C E 483
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 Blas kic appeal.
Subsequent to conviction of Croatian General Blaskic, 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 review-
able error in its assessment of the facts, but acknowledged that the additional
evidence admitted on appeal conrmed 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
195
Ibid.
196
Ibid.
197
Blas kic (IT-95-14-A), Decision on Evidence, 31 October 2003.
198
Blas kic (IT-95-14-A), Judgment, 29 July 2004, paras. 335, 348.
199
Kajelijeli (ICTR-98-44A-A), Decision on Defence Motion for the Admission of Addi-
tional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 28
200
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. 3638; 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. 6263; Tadic (IT-94-
1-A), Judgment, 15 July 1999, para. 65; Kupres kic et al. (IT-95-16-A), Appeal Judgment,
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 specied
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 Cham-
ber 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. Reecting these concerns, the Rome Statute of
23 October 2001, para. 33; Erdemovic (IT-96-22-A), Joint Separate Opinion of Judge
McDonald and Judge Vohrah, 7 October 1997, para. 90.
201
202
203
ICTY RPE, Rule 90(B); ICTR RPE, Rule 90(B). The Rule was deleted from the SCSL
RPE.
204
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 15. Also: Rutaganda (ICTR-96-3-T),
Judgment and Sentence, 6 December 1999.
205
Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 27 (references omitted).
206
Kordic et al. (IT-95-14/2-AR73.5), Decision on Appeal regarding Statement of a
E V I D E N C E 485
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 inuenced 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
Blaskic, 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 Croatias 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 Tribunals 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 Tribunals 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
207
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. 105113.
208
209
Ibid., para. 63.
210
Ibid., para. 64.
211
Ibid., para. 66.
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 acknowl-
edged the existence of an exception case where a State, acting bona de,
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 specic docu-
ments and not broad categories. The relevance of such documents to the trial
must be explained. In addition, the application should not be unduly oner-
ous and the State is entitled to suYcient time for compliance.
213
Moreover, as
a matter of sound policy, a party must rst 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 Blas kic , the RPE were amended
to make explicit provision for the case of national security information. Rule
54bis declares that a State may, within fteen 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 inter-
ests 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 condential
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
212
Ibid., para. 68.
213
Krstic (IT-98-33-PT), Binding Order to the Republika Srpska for the Production of
Documents, 12 March 1999.
214
Ibid.
215
Richard May and Marieke Wierda, International Criminal Evidence, Ardsley, NY: Trans-
national Publishers, 2002, pp. 6061.
216
Milos evic (IT-02-54-T), Public Version of the Condential Decision on the Prosecutors
Motion to Grant Specic Protection Pursuant to Rule 70, 25 July 2002.
E V I D E N C E 487
Subsequent to the Blas kic Appeals Chamber decision, binding orders were
issued to Croatia
217
and Bosnia and Herzegovina
218
for disclosure of specic
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 testied about
the governments concerns. This made it clear that Croatia had only trans-
mitted a very limited number of documents to the Tribunal, and that it had
in no manner responded properly to the Prosecutors 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
217
Blas kic (IT-95-14-T), Order, 30 January 1998; Blas kic (IT-95-14-T), Order, 21 July 1998.
218
Blas kic (IT-95-14-T), Order, 29 April 1998; Blas kic (IT-95-14-T), Order for the Produc-
tion of Documents Used to Prepare for Testimony, 22 April 1999, para. 45.
219
Blas kic (IT-95-14-T), Order for a Witness to Appear, 5 November 1998. Also: Blas kic
(IT-95-14-T), Second Additional Order for a Witness to Appear, 12 March 1999.
220
Blas kic (IT-95-14-T), Judgment, 3 March 2000.
221
(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 ndings 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.
222
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.
223
ICTY RPE, Rule 94(B) (UN Doc. IT/32/Rev.13); ICTR RPE, Rule 94(B).
224
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 Interna-
tional Criminal Tribunal for Rwanda, UN Doc. A/54/634, para. 85.
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 determina-
tion 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 convin-
cingly 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 conict, 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
Semanza (ICTR-97-20), Decision on the Prosecutors 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 Prosecutions Motion for Judicial Notice
and Admission of Evidence, 24 June 2004; Sesay et al. (SCSL-04-15-PT), Decision on
Prosecutions Motion for Judicial Notice and Admission of Evidence, 24 June 2004.
226
in Bosnia-Herzegovina, 25 March 1999; Nsabimana et al. (ICTR-98-42-T), Decision on
the Prosecutors Motion for Judicial Notice and Admission of Evidence, 15 May 2002;
Kajelijeli (ICTR-98-44A-T), Decision on the Prosecutors Motion for Judicial Notice
Pursuant to Rule 94 of the Rules, 16 April 2002, para. 17.
227
Norman et al. (SCSL-04-14-AR73), Separate Opinion of Judge Robertson, 16 May 2005,
para. 15.
228
Semanza (ICTR-97-20-I), Decision on the Prosecutors 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 Mugiranezas 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 Prosecutions
Motion for Judicial Notice and Admission of Evidence, 16 May 2005, para. 21.
E V I D E N C E 489
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 Herzegovinas 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 Com-
munity 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 ndings and are subject to more than reason-
able dispute.
232
ICTR Trial Chambers have accepted that between 6 April
1994 and 17 July 1994, citizens native to Rwanda were identied according
to the ethnic classications Tutsi, Hutu and Twa,
233
and that on 6 April 1994,
the President of the Republic of Rwanda, Juvenal 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 conict in Sierra Leone from March 1991 until January 2002.
236
The
229
Milos evic (IT-02-54-T), Final Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts, 16 December 2003.
230
in Bosnia-Herzegovina, 25 March 1999.
231
232
para. 47; Norman et al. (SCSL-04-14-AR73), Separate Opinion of Judge Robertson, 16
May 2005, para. 28.
233
Pursuant to Rule 94 of the Rules, 16 April 2002.
234
Nyiramasuhoko et al. (ICTR-97-21-T), Decision on the Prosecutors Motion for Judicial
Notice and Admission of Evidence, 15 May 2002, para. 105.
235
Ibid., para. 106.
236
Norman et al. (SCSL-04-14-PT), Decision on Prosecutions Motion for Judicial Notice
and Admission of Evidence, 2 June 2004, para. 32; Norman et al. (SCSL-04-14-AR73),
tribunals have refused to take judicial notice of the nature of the armed
conict, i.e., international or non-international, as this is a legal consequence
inferred from facts rather than a fact of common knowledge itself.
237
Simi-
larly, 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 rst trial.
242
Fofana Decision on Appeal Against Decision on Prosecutions Motion for Judicial
Notice and Admission of Evidence, 16 May 2005, para. 40.
237
in Bosnia-Herzegovina, 25 March 1999; Nsabimana et al. (ICTR-98-42-T), Decision on
the Prosecutors Motion for Judicial Notice and Admission of Evidence, 15 May 2002;
Pursuant to Rule 94 of the Rules, 16 April 2002, para. 17.
238
Semanza (ICTR-97-20-I), Decision on the Prosecutors Motion for Judicial Knowledge
and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000, para. 36.
239
para. 41.
240
Ntakirutimana et al. (ICTR-96-10-T and ICTR-96-17-T), Decision on the Prosecutors
Motion for Judicial Notice of Adjudicated Facts, 22 November 2001.
241
Ibid.; Kajelijeli (ICTR-98-44A-T), Decision on the Prosecutors Motion for Judicial
Notice Pursuant to Rule 94 of the Rules, 16 April 2002; Prosecutor v. Nyiramasuhuko
(ICTR-98-42-T), Decision on the Prosecutors Motion for Judicial Notice and Admis-
sion of Evidence, 15 May 2002; Nyitigeka (ICTR-96-14-T), Decision on the Prosecutors
Motion for Judicial Notice of Facts (Rule 94 of the Rules of Procedure and Evidence),
4 September 2002.
242
Wald, The ICTY Comes of Age, at p. 111.
E V I D E N C E 491
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 specic 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 judg-
ments 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 inap-
propriate 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
244
Bizimungu et al. (ICTR-99-50-T), Decision on Prosper Mugiranezas First Motion for
Judicial Notice Pursuant to Rule 94(B), 10 December 2004.
245
Bizimungu et al. (ICTR-99-50-T), Decision on Jero me-Clement Bicumumpakas 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.
246
Blagojevic et al. (IT-02-60-T), Judgment, 17 January 2005, para. 28.
247
Milos evic (IT-02-54-AR73.5), Decision on the Prosecutions Interlocutory Appeal
Against the Trial Chambers 10 April 2003 Decision on Prosecution Motion for Judicial
Notice of Adjudicated Facts, 28 October 2003; Krajisnik (IT-00-39 and 40), Decision on
Prosecutions Motion for Judicial Notice of Adjudicated Facts and Admission of Written
Statements of Witnesses Pursuant to Rule 92bis, 28 February 2003, para. 15.
248
Milos evic (IT-02-54-AR73.5), Dissenting Opinion of Judge David Hunt, 28 October 2003.
249
Milos evic (IT-02-54-AR73.5), Separate Opinion of Judge Shahabuddeen Appended to the
Appeals Chambers Decision dated 28 October 2003 on the Prosecutions Interlocutory
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, geogra-
phical, military and political context of the Yugoslavia conict, 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 Kvoc ka 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 conict 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 specically 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
Appeal against the Trial Chambers 10 April 2003 Decision on Prosecution Motion
for Judicial Notice of Adjudicated Facts, 28 October 2003.
250
para. 32.
251
Norman et al. (SCSL-04-14-AR73), Separate Opinion of Justice Robertson, 16 May
2005, para. 9.
252
Kvoc ka et al. (IT-98-30/1-T), Decision on Judicial Notice, 8 June 2000; Kvoc ka et al. (IT-
98-30/1-T), Judgment, 2 November 2001, para. 790.
253
Kvoc ka et al. (IT-98-30/1-T), Decision on Judicial Notice, 8 June 2000.
254
255
E V I D E N C E 493
has dened lawyerclient privilege as a rule of evidence, which provides that
condential 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 condential 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 lawyerclient 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 Milos evic 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 Milosevic, 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
Brdanin et al. (IT-99-36-PT), Decision on Motion for Production of Documents
Dzonlic Testimony of 11 March 2002, 9 April 2002.
257
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 325326. But see the individual
opinions that accompany the judgment: Declaration of Judge Nieto-Navia and Separate
Opinion of Judge Shahabuddeen.
258
Milos evic (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.
259
S
es elj (IT-03-67-PT), Decision on Prosecutions Motion for Order Appointing Counsel

to Assist Vojislav S
eselj 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.
260
September 2004; Milos evic (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the
Trial Chambers Decision on the Assignment of Defence Counsel, 1 November 2004.
Also: Milos evic (IT-02-54-T), Order on the Modalities to be Followed by Court Assigned
Counsel, 3 September 2004.
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 lawyerclient privilege, the RPE recognise a privilege in
information which has been provided to the Prosecutor on a condential
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-codied 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 privi-
lege.
266
Similarly, the Appeals Chamber recognised a partial or qualied
privilege with respect to war correspondents, in recognition of their important
role during armed conict. It said that evidence from a war correspondent
may only be compelled if it is directly relevant and cannot be obtained
elsewhere.
267
261
Simic et al. (IT-95-9-R77), Order for Limited Access to Registry Files, 1 November 1999.
262
263
Blagojevic et al. (IT-02-60-T), Decision on Vidoje Blagojevics 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.
264
265
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
266
Ruling Concerning the Testimony of a Witness, 27 July 1999. The principle was subse-
quently 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: Stephane
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.
267
Brdanin et al. (IT-99-36-A), Decision on Motion to Set Aside Condential Subpoena to
Give Evidence, 15 December 2002.
E V I D E N C E 495
But no methodology for identifying other privileges has been determined.
The International Criminal Court RPE establish a three-part test in deter-
mining whether to recognise privileges other than the lawyerclient privilege
and the ICRC privilege, which are dened in the text. First, privileged com-
munications must be made in the course of a condential relationship pro-
ducing a reasonable expectation of privacy and non-disclosure. Second,
condentiality must be essential to the nature and type of relationship
between the person and the condant. 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 condentiality.
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
Rules of Procedure and Evidence, ICC-ASP/1/3, p. 10, Rule 73.
269
See the critical comments of Kelly Dawn Askin with respect to the Trial Chambers order
to produce medical records of a rape victim in the Furundzija 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. 112113.
270
Delalic et al. (IT-96-21-A), Decision on Motion to Preserve and Provide Evidence, 22
April 1999.
271
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 modications to
the existing models in adopting a dramatically revised Rule 96. The ICTYand 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.
272
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. 521527;
Christin B. Coan, Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the
sexual assault prosecutions: corroboration of the victims 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 reected 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 victims testi-
mony 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 extre-
mely 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 ICTYand 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
International Criminal Tribunal for the Former Yugoslavia, (2000) 26 North Carolina
Journal of International Law and Commercial Regulation 183, at pp. 213217; Daniel
D. Ntanda Nsereko, Rules of Procedure and Evidence of the International Tribunal for
the Former Yugoslavia, (1994) 5 Criminal Law Forum 507.
273
Richard J. Goldstone, Prosecuting Rape as a War Crime, (2002) 34 Case Western Reserve
Journal of International Law 277, at pp. 283284.
274
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.
275
See above at pp. 484485. 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 victims 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 . . ..
276
Askin, Sexual Violence at p. 111, n. 70.
277
Tadic (IT-94-1-T), Opinion and Judgment, 7 May 1997, paras. 535539. 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), Judg-
ment and Sentence, 6 December 1999, para. 18; Delalic et al. (IT-96-21-A), Judgment, 20
278
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
E V I D E N C E 497
Furundzija Trial Chamber held that any form of captivity vitiates consent.
279
In Kunarac, an ICTY Trial Chamber criticised ICTY Rule 96 as being incon-
sistent 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
denition 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 incon-
sistent 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 victims 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 ICTYand 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
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.
279
280
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, Prose-
cuting Rape as a War Crime, at p. 284.
281
Rules of Procedure and Evidence, ICC-ASP/1/3, p. 10, Rule 70.
282
ICTY RPE, Rule 96(iii); ICTR RPE, Rule 96(iii).
283
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 Qualication of Prosecution Expert Jean
Rubaduka, 24 March 2004.
284
ICTY RPE, Rule 96(iii).
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
complaints. When references were made during the C
elebic i trial to the prior

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 predis-
position 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 ICTYand 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 identication 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
285
Delalic et al. (IT-96-21-T), Decision on the Prosecutions Motion for the Redaction of
the Public Record, 5 June 1997.
286
287
288
289
E V I D E N C E 499
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, provid-
ing 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 indict-
ment.
293
In the same case, similar fact evidence was also admitted against
Zoran Z
igic.
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
290
ICTY RPE, Rule 65 ter.
291
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 323. This is also
discussed in Kvoc ka et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 357360,
451.
292
Galic (IT-98-29-T), Decision on the Motion for the Entry of Acquittal of the Accused
Stanislav Galic, 3 October 2002, fn. 1.
293
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 547, 556.
294
Ibid., paras. 652, 663, 664.
295
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 guaran-
tees 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 consti-
tuted 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 interna-
tionally 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
Arieh J. Kochavi, Prelude to Nuremberg, Allied War Crimes Policy and the Question of
Punishment, Chapel Hill University of North Carolina Press, 1998, pp. 6391.
2
United States of America v. Alstotter et al. (Justice trial), (1948) 3 TWC1, 6 LRTWC 1, 14
ILR 278, at p. 97 (LRTWC).
3
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 Conven-
tion 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.
4
tion 808 (1993), UN Doc. S/25704 (1993), para. 106.
501
standard in terms of codication of the right to a fair trial in international
human rights law.
5
A slightly modied version of article 14 appears in the
statutes of the three tribunals.
6
Moreover, several specic 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
ve 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 condentiality 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 dur-
ing seizure, meant that the lacuna did not justify the Prosecutors decision
not to provide such an inventory.
10
But trial chambers have resisted sugges-
tions that they improvise procedures for clarication or reconsideration,
11
5
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171.
6
7
See, e.g., First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex,
paras. 2226.
8
ICTY RPE, Rule 89(D). Also: ICTY RPE, Rule 70(G); ICTR RPE, Rule 70(F); SCSL RPE,
Rules 70(F), 95.
9
Kordic et al. (IT-95-14/2-PT), Decision on the Motion of the Accused for Access to Non-
Public Materials in the Lasva Valley and Related Cases, 12 November 1998.
10
11
Kovac evic (IT-97-24-PT), Decision on Defence Motion to Reconsider, 30 June 1998,
preambular para. 2.
or that they allow appeals from judgments for which none are specically
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 rst rulings of the ICTY
Trial Chamber, dealing with authorisation of anonymous testimony, two
judges said that [t]he International Tribunal is, in certain respects, compar-
able 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 circum-
stances that exist in international criminal prosecution, and may be unavoid-
able 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 suspects 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
Ntuyahaga (ICTR-98-40-A), Decision Rejecting Notice of Appeal, 3 June 1999.
13
for Victims and Witnesses, 10 August 1995, para. 28. Along the same lines, see Kovac evic
(IT-97-24-AR73), Separate Opinion of Judge Shahabuddeen, 2 July 1998, p. 4.
14
ICTY RPE, Rule 42(A); ICTR RPE, Rule 43(A); SCSL RPE, Rule 43(A) (where the right
to counsel is expressed somewhat diVerently).
R I G H T S O F T H E A C C U S E D 503
everything that the suspect or accused says during the questioning can be used
against him as evidence.
15
Conrmation 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 Tribunals investiga-
tors. For this right to be eVective, the consequence must be that no adverse
inference at trial can be drawn from a suspects 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 analo-
gous 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 suspects 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 Appellants 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
Blagojevic et al. (IT-02-60-T), Decision on Vidoje Blagojevics 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.
16
17
sideration), 31 March 2000. Also: Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005,
paras. 226227.
18
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 Cham-
ber 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 provi-
sions in the statutes of the ad hoc tribunals is the removal of this requirement.
The deletion is not explained in the Secretary-Generals 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
full this condition.
With respect to the judges themselves, the Secretary-Generals report said
they should be persons of high moral character, impartiality and integrity
who possess the qualications 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-Generals
report speaks of an independent Prosecutor, and says [t]he Prosecutor
should act independently,
24
but makes no mention of impartiality.
19
ICTY RPE, Rule 40bis(D); ICTR RPE, Rule 40bis(C), (G), (H); SCSL RPE, Rule
40bis(H).
20
21
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).
22
See generally, on the issue with respect to international judges: Ruth Mackenzie and
Philippe Sands, International Courts and Tribunals and the Independence of the Inter-
national Judge, (2003) 44 Harvard International Law Journal 271.
23
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), UN Doc. S/25704 (1993), para. 74.
24
Ibid., para. 85.
International human rights law has distinguished between independence
and impartiality. While independence is desirable in and of itself, its impor-
tance 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 appoint-
ment, remuneration and tenure may lead a reasonable person to suspect that
justice cannot be done. This is the objective test. Of course, in specic cases
there may well be evidence suggesting that a particular individual in specic
circumstances lacks impartiality. This possibility is specically contemplated
by the RPE, which call for disqualication 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 con-
siders 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 nancial or proprietary
interest in the outcome of a case, or if the Judges 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 Judges dis-
qualication 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 Treat-
ment 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 qualica-
tions 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
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
26
27
28
Basic Principles on the Independence of the Judiciary, GA Res. 40/32, GA Res. 40/146.
29
Ibid., para. 10.
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 non-
governmental organisations. Nomination of an unqualied 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
qualications 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 ve 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 Gov-
ernment 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 prover-
bial reasonable person would be perturbed by the situation. The Secretary-
General 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 insti-
tution 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 conict 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 imparti-
ality of the individual judges appointed by the Government, a reasonable
30
Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 2(2);
31
Leone, UN Doc. S/2000/915, p. 14, fn. 1.
32
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.
person might well be uncomfortable with the entire process. The only judge
of the SCSL to be disqualied 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 conned 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 doesnt 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
Sesay (SCSL-04-15-AR15), Decision on Defence Motion Seeking the Disqualication of
Justice Robertson from the Appeals Chamber, 13 March 2004.
34
Basic Principles on the Independence of the Judiciary, GA Res. 40/32, GA Res. 40/146,
annex, art. 11.
35
(a).
36
37
ICTY Statute, art. 13ter(2), adopted pursuant to UN Doc. S/RES/1329 (2000).
38
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.
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 com-
promised. This situation was challenged unsuccessfully by one of the de-
fendants 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 uncer-
tainty of funding. He cited the agreement establishing the Court, which said
that in the event voluntary contributions were insuYcient, the Secretary-
General and the Security Council would explore alternate means of nancing
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
UN Doc. S/RES/1597 (2005), amending art. 13ter(1)(e) of the ICTY Statute.
40
Jurisdiction (Judicial Independence), 13 March 2004, para. 30.
41
Ibid., para. 37.
42
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 unt but refused to resign, who would be respon-
sible for dismissal? Lack of clarity on this point is, in itself, a serious short-
coming 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 Shahabudd-
een, 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 rst 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 Secre-
tary-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 specic 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
Basic Principles on the Independence of the Judiciary, GA Res. 40/32, GA Res. 40/146,
annex, arts. 1720.
45
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).
46
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.
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 specic 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 Akayesus 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. Akayesus 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
the C
elebic i case, the ICTY Appeals Chamber considered the principle of

equality before the law within the context of prosecutorial discretion. It said:
This provision reects the corresponding guarantee of equality before the
law found in many international instruments, including the 1948 Uni-
versal Declaration of Human Rights, the 1966 International Covenant on
47
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.
416419.
48
49
50
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 well-
entrenched formulation of international human rights law.
51
Bagambiki et al. (ICTR-97-36-T), Decision on the Defence Motion for the Protection of
Witnesses, 30 September 1998, p. 4.
Civil and Political Rights, the Additional Protocol I to the Geneva Con-
ventions, 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 reect a
rmly established principle of international law of equality before the law,
which encompasses the requirement that there should be no discrimina-
tion 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 Prosecutors 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 conict 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
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 605 (reference omitted).
53
Ibid., para. 607. Also: Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment,
21 February 2003, paras. 870871.
54
55
John R. W. D. Jones, The Gamekeeper-Turned-Poachers Tale, (2004) 2 Journal of
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-Generals report to the Security Council on the draft ICTY
Statute. Equality of arms is an expression taken from European human rights
law
57
that has been adopted and endorsed by the tribunals to refer to a range
of fair trial rights, some of them codied 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
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.
58
ICTY Statute, art. 21(4)(b); ICTR Statute, art. 20(4)(b); SCSL Statute, art. 17(4)(b).
59
60
Kordic et al. (IT-95-14/2-A), Decision on the Application by Mario C
erkez for Extension

of Time to File his Respondents Brief, 11 September 2001, para. 5.
61
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 52. The United States of America
invoked the Appeals Chambers comments before the Inter-American Commission on
Human Rights, in a case dealing with capital punishment, as authority for the proposi-
tion 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.
But equality of arms . . . does not necessarily amount to the material equality
of possessing the same nancial 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 conrming 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 refer-
red 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 ICTYand ICTR statutes note
62
Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, paras. 6371; Milu-
tinovic et al. (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Addi-
tional Funds, 13 November 2003.
63
Bagosora and 28 Others, 8 June 1998, paras. 3435.
64
Evidence, 16 February 1999, paras. 2425. For another example of the doctrine of
equality of arms working in favour of the Prosecutor: Kupres kic et al. (IT-95-16-T),
Decision, 11 January 1999.
65
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 C
erkez for Extension of Time to File his

Respondents Brief, 11 September 2001, para. 6; Kordic et al. (IT-95-14/2-A), Judgment,
17 December 2004, para. 175.
66
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.
explicitly that the principle of public trial is subject to exceptions, with specic
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 victims 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 Milos evic , 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 witnesss 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 tar-
get of attacks and intimidation both in Bosnia and elsewhere, the interests
sought to be protected are too remote and do not outweigh the accuseds 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 les, 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 led a personal response to charges that she lacked impartiality.
67
68
69
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
Prosecutors Motion to Permit Investigators to Follow the Proceedings, 30 April 2001.
70
Milos evic (IT-02-54-T), Decision on Prosecution Motion for Protective Measures (Con-
cerning a Humanitarian Organisation), Public Version of a Condential Decision Filed
13 March 2003, 1 April 2003.
She made serious accusations against one of her colleagues.
71
The document
was disseminated publicly for a few days, and widely circulated on the inter-
net, before the Court issued an order, apparently emanating from Judge
Winter herself, who was Acting President of the Court, that it be treated
condentially. The statement is referred to in the SCSL Appeals Chamber
ruling on the issue, where it is described as a condential document.
72
Subsequently, the defence led 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 Cham-
ber concluded that transparency has been provided and that any further
disclosure of documents led condentially is not warranted.
73
Presumption of innocence
The presumption of innocence is reected 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 Prosecutors 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
71
Norman (SCSL-04-14-PT), Judge Winters Response to Motion to Recuse her from
Deliberating on the Preliminary Motion on the Recruitment of Child Soldiers, 14 May
2004.
72
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.
73
Norman (SCSL-04-14-T), Sesay Decision on Condential Motion Seeking Disclosure
of Documentation Relating to the Motion on the Recruitment of Child Soldiers, 28 July
2004.
74
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 12; Niyitegeka (ICTR-96-
14-T), Judgment and Sentence, 16 May 2003, para. 45; Milos evic (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. 463467.
75
76
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004.
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 dene the presum-
ption 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 benet 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 Tribunals 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 Tribunals 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 justied
77
Milos evic (IT-02-54-AR73.5), Dissenting Opinion of Judge David Hunt, 28 October
2003, para. 7.
78
Barbera` v. Spain, (1988) 11 EHRR 360, para. 77.
79
Blas kic (IT-95-14-T), Decision on Motion of the Defence Seeking Modication of the
Conditions of Detention of General Blaskic, 9 January 1997.
80
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 presump-
tion 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 pre-
sumption 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 intimi-
date 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 connement 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
81
Krajisnik et al. (IT-00-39 and 40-PT), Decision on Momcilo Krajisniks Notice of Motion
for Provisional Release, 8 October 2001, Dissenting Opinion of Judge Patrick Robinson.
82
Jokic et al. (IT-01-42-PT and IT-01-46-PT), Orders on Motions for Provisional Release,
20 February 2002.
83
84
Bell v. Wolsh, 441 US 520, 533 (1979).
85
General Comment 13/21, UN Doc. A/39/40, pp. 143147.
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 conicts, have been condemned in the media,
and by major international political gures. 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 Karadzic 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 personali-
ties must show more caution in describing alleged perpetrators, so as not to
violate the presumption of innocence. Hopefully, this will become more com-
mon as condence 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 publi-
cise 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
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.
87
UN Doc. S/RES/1034 (1995).
88
Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999.
89
Christopher Greenwood, The International Tribunal for Former Yugoslavia, (1993) 69
International AVairs 641, at p. 655.
90
ICTY Statute, art. 21(4)(a); ICTR Statute, art. 20(4)(a); SCSL Statute, art. 17(4)(a).
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 Kupres kic , an ICTY Trial Chamber said: It follows that the
accused is entitled to know the specics of the charges against him, namely the
facts of which he is accused and the legal classication 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 clarication with respect to the crime against humanity of other
inhumane acts was held by an ICTR Trial Chamber to violate the funda-
mental 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 qualication 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 state-
ments, 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
91
Also: Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 224.
92
Kupres kic (IT-95-16-T), Judgment, 14 January 2000, para. 725. Also: Kupres kic et al. (IT-
95-16-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; Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 209.
93
para. 58; also para. 78. Also: Blas kic (IT-95-14-A), Judgment, 29 July 2004.
94
95
Simic et al. (IT-95-9-T), Reasons for Decision on Prosecutions Motion to Use Tele-
phone Interviews, 11 March 2003.
96
Kupres kic 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.
97
Kordic et al. (IT-95-14/2-PT), Order on Motion to Compel Compliance by the Prose-
cutor with Rules 66(A) and 68, 26 February 1999, p. 4.
98
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
Trial without undue delay
The accused is entitled to be tried without undue delay.
99
In the Interna-
tional 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 signicance, 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 nal judg-
ment. 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 Con-
vention 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 autho-
rities, noting that the European Court of Human Rights had said that [t]he
reasonableness of the period cannot be translated into a xed 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
Accused and Conrmation of the Status of Witnesses for the Defence, 31 May 1996;
Muhimana (ICTR-95-1-B-I), Decision relative a` la requete de la defence aux ns de
traduction des documents de laccusation et des actes de procedure en kinyarwanda,
langue de laccuse, et en francais, langue de son conseil, 6 November 2001, para. 16.
99
ICTY Statute, art. 21(4)(c); ICTR Statute, art. 20(4)(c); SCSL Statute, art. 17(4)(c).
100
Slobodan Milosevic 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 (Milos evic (IT-
01-50-I), Indictment, 8 October 2001).
101
Clare Ovey and Robin White, Jacobs and White, The European Convention on Human
Rights, Oxford: Oxford University Press, 2002, pp. 166168.
102
Kanyabashi (ICTR-96-15-I), Decision on the Extremely Urgent Motion on Habeas
Corpus and for Stoppage of Proceedings, 23 May 2000 (references omitted).
important to bear in mind that, with some exceptions, persons on trial before
the international tribunals are generally being held in detention. Some defen-
dants at the ICTR had been in custody almost a decade, yet their trials at rst
instance had not even been completed.
103
The ICTR Appeals Chamber has listed ve 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 neigh-
boring 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 Cham-
ber ruling, and concluded laconically on the basis of the facts put forward
103
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 nally began on 2 April 2002. The Prosecutor closed
its case against him on 14 October 2004.
104
Mugiraneza (ICTR-99-50-AR73), Decision on Prosper Mugiranezas 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.
105
Mugiraneza (ICTR-99-50-I), Decision on Prosper Mugiranezas Request Pursuant to
Rule 73 for Certication 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.
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 judg-
ment 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-Generals 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
Bizimungu et al. (ICTR-99-50-T), Decision on Prosper Mugiranezas 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.
107
108
109
tion 808 (1993), UN Doc. S/25704 (1993), para. 101.
110
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 ICTYs Achilles heel.
113
The original version of the ICTY RPE stated: A counsel shall be considered
qualied to represent a suspect or accused if he satises 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 rst 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 impor-
tant trials.
116
Many were unfamiliar with both the substantive law and the
adversarial procedure of international judicial institutions.
117
For example,
in the very rst 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 clients 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 qualications of defence counsel, there is
111
112
See, e.g., Kvoc ka et al. (IT-98-30/1-A), Decision on Review of Registrars Decision to
Withdraw Legal Aid from Zoran Z
igic, 7 February 2003.

113
David Tolbert, The ICTYand Defence Counsel: ATroubled Relationship, (2003) 37 New
England Law Review 975, at p. 975.
114
ICTY RPE, Rule 44.
115
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. 167176, at p. 170. See also Mark S. Ellis,
The Evolution of Defence Counsel Appearing Before the International Criminal Tribu-
nal 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.
116
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.
117
Tolbert, The ICTY and Defence Counsel, at pp. 979980.
118
7 October 1997, para. 18.
119
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Stephen, 7 October
1997, para. 5.
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 prociency 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 uent in either
English or French. But at the ICTY, the majority of defence counsel have
come from the former Yugoslavia, and the level of prociency 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 ones 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,
120
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. 543601, at p. 556.
121
ICTY RPE, Rule 44(A). See: Sixth Annual Report of the ICTY, UN Doc. A/54/187-S/
1999/846, annex, para. 86.
122
ICTY RPE, Rule 44(A)(ii).
123
ICTY RPE, Rule 44(B) (amended 14 July 2000).
124
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.
125
Tolbert, The ICTY and Defence Counsel, at p. 978.
126
Kambanda (ICTR 97-23-A), Judgment, 19 October 2000, para. 33; Akayesu (ICTR-96-
4-A), Judgment, 1 June 2001, paras. 6061; 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.
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 nancial 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 defen-
dants, 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 S
ljivancanin 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 exibility
because the lawyers history raises questions about his suitability for assign-
ment as counsel, at the Tribunals expense.
135
S
ljivancanin appealed the

Registrars decision to the President of the ICTY, who considered that rules
of procedural fairness in administrative decision-making had not been
127
128
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 re-
garding the Decision not to assign Toma Fila as Defence Counsel to Slavko Dokmanovic,
4 September 1997).
129
130
Ellis, Evolution of Defence Counsel, at pp. 961962.
131
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.
3439; Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, para. 146.
132
Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, para. 246.
133
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-Tand ICTR-96-
17-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.
134
135
S
ljivanc anin (IT-95-13/1-PT), Registrars Decision, 9 July 2003.

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 appoint-
ment 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 Registrars discretion as to whether an investigator ought to be assigned.
139
The ICTR Registrar has cancelled or refused to renew contracts of investiga-
tors 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 ones 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 condence.
142
The
equivalent provision in the ICTY Directive speaks of the interests of justice
136
S
ljivanc anin (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.
137
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.
138
139
Nyiramasuhuko et al. (ICTR-97-21-T), Decision on the Application by Arse`ne Shalom
Ntahobali for Review of the Registrars Decisions Pertaining to the Assignment of an
Investigator, 13 November 2002.
140
141
142
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.
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 rst time at the ICTY in Milos evic . The presiding
judge of the Trial Chamber, Richard May, dismissed a motion by the Prose-
cutor seeking to impose counsel on the defendant. The principal justication
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
Prosecutions 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 fullling a more investiga-
tive 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 eVec-
tively 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
reective of the common law position.
146
143
Milos evic (IT-02-54-T), Decision AYrming the Registrars Denial of Assigned Counsels
Application to Withdraw, 7 February 2005.
144
Assignment of Counsel, 4 April 2003, para. 18.
145
Faretta v. California, 422 US 806, 817 (1975).
146
Assignment of Counsel, 4 April 2003, para. 24.
Shortly thereafter, in S
es elj, the Prosecutor led 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 Accuseds 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 distin-
guishable from Milos evic , 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 nd, 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 Milos evic case because of a
serious illness. Shortly afterwards his two colleagues, together with the judge
appointed in his place, and inspired by the S
es elj 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
S
es elj (IT-03-67-PT), Decision on Prosecutions Motion for Order Appointing Counsel

to Assist Vojislav S
eselj with his Defence, 9 May 2003.

148
September 2004, para. 33. See also: Milos evic (IT-02-54-T), Order on Future Conduct of
the Trial, 6 July 2004.
Accuseds 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 defendants 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 ones own presence, which the Tribunal
noted was subject to limitation in the event of disruption. If a defendants
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 diVer-
ently, 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
justication 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
Milosevic was excessive, under the circumstances. It opted, instead, for the
standby counsel approach that had earlier been adopted by a Trial Chamber
in S
es elj. 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 Milosevic to exercise his
fundamental right of self-representation and safeguarding the Tribunals basic
interest in a reasonably expeditious resolution of the cases before it, said the
Appeals Chamber.
152
149
Ibid., para. 66.
150
151
Ibid., para. 14.
152
Ibid., para. 19.
The Trial Chamber of the SCSL has also considered the question of self-
representation.
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 qualied 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 Milos evic , 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 neu-
tralise 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 inconve-
nience. The Trial Chamber concluded, in a strikingly self-contradictory for-
mulation, 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 Tribu-
nal.
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
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.
154
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.
155
Ibid., para. 26.
156
Ibid., para. 32.
157
ICTY Statute, art. 21(4)(f); ICTR Statute, art. 20(4)(f); SCSL Statute, art. 17(4)(f).
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 specic dialect of Serbo-
Croatian 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 coop-
erate 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 considera-
tion 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
Delalic et al. (IT-96-21-T), Order on Zdravko Mucics Request for Serbo-Croatian
Interpretation, 23 June 1997; Krsmanovic (IT-96-19-Misc.1), Decision Concerning
Serbo-Croatian Interpretation, 29 March 1997.
159
ICTY Statute, art. 21(4)(g); ICTR Statute, art. 21(4)(g); SCSL Statute, art. 21(4)(g).
160
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
161
Jokic et al. (IT-01-42-PT and IT-01-46-PT), Orders on Motions for Provisional Release,
20 February 2002. Also: Hadzihasanovic et al. (IT-01-47-PT), Decisions Granting Provi-
sional Release to Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, 9 December
2001, para. 15.
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 Accuseds rights in
this regard and has not drawn any adverse inference in the present case.
163
In C
elebic i, the ICTY Appeals Chamber said that an absolute prohibition

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 testied 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
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 298; Delalic et al. (IT-96-
21-A), Judgment, 20 February 2001, para. 783; Plavs ic (IT-00-39 and 40/1), Sentencing
Judgment, 27 February 2003, para. 64; Blas kic (IT-95-14-A) Judgment, 29 July 2004,
para. 687.
163
Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 46.
164
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 783. Also: Plavs ic (IT-00-
39&40/1), Sentencing Judgment, 27 February 2003, para. 64.
165
166
See, e.g., Obrenovic (IT-02-60-T), Plea Agreement, para. 17; Momir Nikolic (IT-02-
60-PT), Amended Plea Agreement, para. 5.
167
See, e.g., Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 779.
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
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 codied in Rule
72.
172
The SCSL decided, instead, that challenges to jurisdiction would be
heard by the Appeals Chamber sitting, so to speak, in rst 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 ICTYand ICTR were
signicantly diVerent institutions with personnel and budgets very greatly
in excess of ours. But there was an implied criticism of the length of proceed-
ings, and particularly the pre-trial process, of the other two ad hoc tribu-
nals.
174
Answering the argument that human rights norms require that there
168
tion 808 (1993), UN Doc. S/25704 (1993), para. 116.
169
This is discussed more thoroughly under Appeal, above at pp. 439449.
170
171
172
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.
173
The SCSL Statute states that the Court is to apply the ICTR RPE, but that it may modify
them as it sees t. The original version of modied Rule 72, adopted by the SCSL at the
rst 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 modied to make this automatic.
174
Denial of Right to Appeal, 4 November 2003, para. 9.
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 signicant 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 nally 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 Blacks 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 subse-
quently 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
Ibid., paras. 1819.
176
177
Tadic (IT-94-1-A), Declaration of Judge Nieto-Navia, 15 July 1999, para. 1.
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 Nieto-
Navia 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 Gerard
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
of Zaire to the United Nations Addressed to the President of the Security Council, UN
Doc. S/1994/1267.
180
Tadic (IT-94-1-A), Declaration of Judge Nieto-Navia, 15 July 1999, para. 8.
181
E.g., Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the
Form of the Indictment, 24 February 1999, paras. 810; Akayesu (ICTR-96-4-T), Judg-
ment, 2 September 1998, para. 190; Kupres kic (IT-95-16-T), Judgment, 14 January 2000,
paras. 652, 667.
182
para. 20.
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 ICTYand 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 com-
pensation, in the case of wrongful arrest or detention, or conviction amount-
ing 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 t to make any amendments to the statutes.
187
183
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.
184
185
Ibid., art. 14(6).
186
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 Secretary-
General, annexed to Letter dated 28 September 2000 from the Secretary-General
Addressed to the President of the Security Council, UN Doc. S/2000/925.
187
Stuart Beresford, Redressing the Wrongs of the International Justice System: Compen-
sation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc
Tribunals, (2002) 96 American Journal of International Law 628. Also: Geert-Jan Alex-
ander Knoops, An Introduction to the Law of the International Criminal Tribunals,
Ardsley, NY: Transnational Publishers, 2003, pp. 191199.
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 Kupreskic have demanded compensation
from the ICTY for wrongful arrest and conviction, following a successful
appeal.
188
The Kupreskic 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
Accord-
ing 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-ve years.
193
Similarly, the
ICTR Appeals Chamber compensated Juvenal Kajelijeli for the serious viola-
tions of the Appellants fundamental rights during his arrest and detention in
Benin and the UNDF by reducing the sentence imposed at trial, of two terms
188
Kupres kic et al. (IT-96-16-T), Request by Zoran Kupreskic, 21 December 2001; Kupres kic
et al. (IT-96-16-T), Request for Compensation for Mirjan Kupreskic, 7 February 2002.
189
Delalic et al. (IT-96-21-T), Request for Personal Funds Used for Defence Expenses, 18
May 2001.
190
WBE v. The Netherlands (No. 432/1990), UN Doc. CCPR/C/46/D/432/1990, para. 6.5.
191
Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd
rev. edn, Kehl, Germany: NP Engel, 2005, p. 239.
192
193
Barayagwiza was born in 1950, and is entitled to be released when he is eighty, unless
there is some remission of sentence.
of life imprisonment and a term of fteen years imprisonment to a single
xed term of forty-ve 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 instru-
ments. 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 Inter-
national Covenant on Civil and Political Rights states: Anyone who is
deprived of his liberty by arrest or detention shall be entitled to take proceed-
ings 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 authoritys 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
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!
195
Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) of the American Conven-
tion on Human Rights), Advisory Opinion OC-8/87, 30 January 1987, Series A, No. 8,
para. 33.
196
197
General Comment 29/72, UN Doc. CCPR/C/21/Rev.1/Add.11, para. 16.
198
199
Ibid., para. 88; Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 November
2001, para. 38.
the ICTY and ICTR is codied 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 Cham-
ber in Barayagwiza, which cited the English House of Lords: [P]roceedings
may be stayed in the exercise of the judges 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 courts jurisdiction in
cases where to exercise that jurisdiction in light of serious and egregious
violations of the accuseds rights would prove detrimental to the courts
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 courts 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 unjustiable delay was at the core of the accuseds
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
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.
201
Kallon (SCSL-04-15AR72(E)) and Kamara (SCSL-04-16-AR72(E)), Decision on Chal-
lenge to Jurisdiction: Lome Accord Amnesty, 13 March 2004, para. 79.
202
203
Ibid., para. 77.
204
Dragan Nikolic (IT-94-2-PT), Decision on Defence Motion Challenging the Exercise of
Jurisdiction by the Tribunal, 9 October 2002, para. 111.
205
sideration), 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 20002001, vol. VI, Antwerp: Intersentia, 2003, pp. 261266.
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 vio-
lation 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 balanc-
ing the legitimate expectation that those accused of [universally condem-
ned 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 com-
paratively 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 States cooperation. Therefore, the Appeals Cham-
ber 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 conse-
quences 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 Tribunals 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 Chambers 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
of Arrest, 5 June 2003, paras. 2526.
207
Ibid., para. 26.
208
A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), paras. 4152.
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 Milosevic 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 accuseds 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 Nether-
lands shall secure to everyone within their jurisdiction the rights and free-
doms 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 mechan-
isms 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
of Arrest, 5 June 2003, paras. 3032.
210
211
Ibid., para. 51.
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 ling 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 Milosevic 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 Milosevic had failed to exhaust domes-
tic 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 ICTYoccurred 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 respon-
sibility for potential violations of human rights that may be committed after
rendition. The threshold is a high one, however, being generally conned 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 agrant
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
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2003/8, paras.
4960.
213
Milos evic v. The Netherlands, Case No. KG. 01/975, ELRO No. AD 3266, Judgment, 31
August 2001, reprinted in (2002) 41 International Legal Materials 86.
214
Milos evic v. The Netherlands (App. No. 77631/01), Admissibility Decision, 19 March
2002.
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 funda-
mental 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 inter-
national 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 led
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), Stankovics 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
Naletilic v. Croatia (App. No. 51891/99), Admissibility Decision, 4 May 2000.
216
Hess v. United Kingdom (App. No. 6231/73), (1975) 2 DR 72.
217
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 denition 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 nal paragraph to their judgments reviewing miti-
gating factors, in the rare cases where these were deemed to be present.
When the new generation of international criminal tribunals began to con-
sider 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 essen-
tially 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
Jelisic (IT-95-10-A), Judgment, 5 July 2001, para. 96. Also: Furundzija (IT-95-17/1-A),
2
3
Ibid., para. 681. Also: Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 719.
4
Tadic (IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000,
para. 22; Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 680; Dragan Nikolic (IT-
94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 9.
545
Neither the statutes nor the Rules provide any specic indication as to the
length of an appropriate sentence. The ICTYand 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, reecting the language
of article 77 of the Rome Statute, declares that convicted persons shall be
subject to imprisonment for a specied number of years.
6
The statutes do not
allow for imposition of other sanctions, such as a ne 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 conicts broke out. In Sierra Leone, on the other
hand, capital punishment was alive and well. Indeed, at the height of the
conict 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 punish-
ment in the statutes of the tribunals. This reects the progress of the interna-
tional human rights law norm promoting the abolition of the death penalty.
9
An historic comparison can be made with the previous generation of in-
ternational 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
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 pro-
grammes, approved schools and, as appropriate, any programmes of disarmament,
demobilization and reintegration or programmes of child protection agencies.
7
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-96-3-
T), Judgment and Sentence, 6 December 1999, para. 448.
8
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.
9
See also: William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd
edn, Cambridge: Cambridge University Press, 2003.
10
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 commen-
tary 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 Con-
vention on Human Rights. The Russian Federations 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, notwith-
standing that the oVence committed may be of a particularly heinous nat-
ure.
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 worlds 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 imprison-
ment or other appropriate punishment.
18
The Secretary-General, in his report
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.
11
Proposal for an International War Crimes Tribunal for the Former Yugoslavia by Rappor-
teurs (Corell Turk Thune) under the CSCE Moscow Human Rights Dimension to
BosniaHerzegovina and Croatia, 9 February 1993, pp. 111112.
12
Letter from the Permanent Representative of Italy to the United Nations Addressed to
the Secretary-General, UN Doc. S/25300, art. 7(1)(2).
13
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).
14
Nations Addressed to the Secretary-General, UN Doc. A/25594.
15
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).
16
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.
17
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.
18
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.
P U N I S H M E N T 547
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 Rwandas 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-Generals report on the Sierra Leone Special Court said: For
a nation which has attested to atrocities that only few societies have witnessed,
19
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), UN Doc. S/25704 (1993), para. 112.
20
See, e.g., Raymond Bonner, Rwandans Divided on War-Crimes Plan, New York Times, 2
November 1994, p. 10.
21
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 Conict, UN Doc. E/CN.4/1998/54/
Add.1, para. 40.
22
UN Doc. S/PV.3453, p. 17.
23
Arre te pre sidentiel no 103/105, Mesure de grace, JO 1992, p. 446, art. 1.
24
Protocole dAccord entre le Gouvernement de la Republique Rwandaise et le Front
Patriotique Rwandais portant sur les questions diverses et dispositions nales signe a`
Arusha, 3, August 1993, Journal oYciel, Year 32, No. 16, 15 August 1993, p. 1430, art. 15.
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 nal
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 mini-
mum of three years
27
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 imprison-
ment 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 xed term: A convicted person may be
sentenced to imprisonment for a term up to and including the remainder
of the convicted persons life.
29
The text in the ICTR RPE is slightly diVerent:
A person convicted by the Tribunal may be sentenced to imprisonment for
a xed term or the remainder of his life. The unique terminology in the SCSL
Statute (imprisonment for a specied number of years) suggests that a term
of life imprisonment is not an option. This is conrmed 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 imprison-
ment 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 ICTRs penchant for terms of
life imprisonment was already apparent. Life imprisonment was included
25
26
2004, vol. 2, chapter 3, Recommendations, paras. 5458.
27
28
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 726. The sentence was reduced on
appeal to thirty-ve years: Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 275.
29
ICTY RPE, Rule 101(A) (revised 12 November 1997).
30
With one curious modication, the word specied is changed to specic.
in the Rome Statute, but is to be used only when justied by the extreme
gravity of the crime and the individual circumstances of the convicted per-
son.
31
The preference, in the Rome Statute, is for a term of imprisonment not
to exceed thirty years.
32
The rst 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 signicant mitigating factors, including the accuseds 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 nds 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
Chambers discretion to impose life imprisonment.
38
Perhaps this was a
message to the Trial Chambers, as none of them had previously seen t to
pronounce such a sentence. The ICTY nally issued its rst (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
77(1)(b).
32
Ibid., art. 77(1)(a).
33
Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998.
34
Kambanda (ICTR-97-23-A), Judgment, 19 October 2000, para. 126.
35
Musema (ICTR-96-13-A), Judgment, 16 November 2001, para. 396.
36
Niyitegeka (ICTR-96-14-A), Appellants Brief, 23 December 2003, para. 215.
37
Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 267.
38
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 reects 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 concur-
rently.
46
The ICTY Appeals Chamber has promoted a totality principle,
whereby the nal principle should reect the totality of the culpable con-
duct.
47
But as the ICTYAppeals Chamber noted, it is within a Trial Chambers
39
40
Ibid., para. 932.
41
ICTY RPE, Rule 101(C); ICTR RPE, Rule 101(D); SCSL RPE, Rule 101(D).
42
paras. 38, 75.
43
ICTY Statute, art. 10(3); ICTY RPE, Rule 101(B)(iv).
44
ICTY Statute, art. 24(3); ICTR Statute, art. 23(3); SCSL Statute, art. 19(3). See also:
45
For the conditions applicable to multiple convictions, see above at pp. 434438.
46
ICTY RPE, Rule 101(C) of the original ICTY RPE specied 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.
47
See ICTY RPE, Rule 87(C): If the Trial Chamber nds the accused guilty on one or
more of the charges contained in the indictment, it shall impose a sentence in respect of
each nding 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
reecting the totality of the criminal conduct of the accused.
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 reect the totality of the oVenders
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.
48
E.g., Blas kic (IT-95-14-T), Judgment, 3 March 2000, paras. 805807; Semanza (ICTR-
97-20-T), Judgment and Sentence, 15 May 2003, paras. 562564; Kambanda (ICTR-97-
23-A), Judgment, 19 October 2000, paras. 101102; Musema (ICTR-96-13-T), Judgment
and Sentence, 27 January 2000, para. 989; Ntakirutimana et al. (ICTR-96-10 and ICTR-
96-17-T), Judgment, 21 February 2003, para. 917; Niyitegeka (ICTR-96-14-T), Judg-
ment and Sentence, 16 May 2003, para. 483.
49
50
Mucic et al. (IT-96-21-Abis), Judgment on Sentence Appeal, 8 April 2003, para. 46.
51
Ibid., para. 25. See: Olaoluwa Olusanya, Double Jeopardy Without Parameters: Re-Char-
acterisation in International Criminal Law, Antwerp: Intersentia, 2004, pp. 168171.
52
ICTY RPE, Rule 101(b)(iii); ICTR RPE, Rule 101(b)(iii).
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 pro-
secutions 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 tribu-
nals to harmonise their sentences with those of the law in force in the
territories where the crimes were committed at the time of their perpetra-
tion.
56
Several Trial Chambers have invoked the national practice not to
protect the accused against an excessive sentence but rather as justication
for the harshness of the penalty. For example, an ICTY Trial Chamber, in the
Tribunals very rst sentencing ruling, said that the reference to the general
practice regarding prison sentences applied by the courts of the former
53
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. 116117; Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 681.
54
Momir Nikolic (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, paras. 96100;
Dragan Nikolic (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 157165.
55
This formulation has been endorsed by the Appeals Chamber: Krstic (IT-98-33-A),
Judgment, 19 April 2004, para. 260; Blas kic (IT-95-14-A), Judgment, 29 July 2004
para. 682; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 347349; 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; Kupres kic et al.
(IT-95-16-A), Appeal Judgment, 23 October 2001, para. 418.
56
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
Yugoslavia is, in fact, a reection 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-ve years respec-
tively 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 fteen 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 imprison-
ment.
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
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999.
59
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
60
Dragon Nikolic (IT-94-2-S), Sentencing Judgment, 18 December 2003, paras. 166173.
61
Ibid., para. 214.
62
It was reduced to twenty years by the Appeals Chamber: Dragan Nikolic (IT-02-60/1-A),
Judgment on Sentencing Appeal, 4 February 2005.
63
punishment of oVenders is therefore intended to deter others from com-
mitting 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 specic 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 conict 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 propor-
tionate retribution and reprobation by the international community of
those convicted of serious violations of international humanitarian law.
66
The Trial Chamber continued:
The International Tribunals objectives as seen by the Security Council
i.e. general prevention (or deterrence), reprobation, retribution (or just
deserts), as well as collective reconciliation t into the Security Coun-
cils broader aim of maintaining peace and security in the former Yugo-
slavia. 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 contribut-
ing to reconciliation, to deter such crimes and to combat impunity. It is
64
Ibid.
65
66
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 58. The state-
ments 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.
67
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
But is one more important than the other? In C
elebic i, an ICTY Trial

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 assess-
ment of the sentences to be imposed on persons convicted by the Interna-
tional Tribunal.
70
According to the Appeals Chamber, [a]n equally important
factor is retribution. This is not to be understood as fullling 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 Interna-
tional 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
Furundzija (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-96-
3-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), Judg-
ment and Sentence, 27 January 2000, para. 986.
69
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1231 and 1234.
70
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. 2930; Krnojelac (IT-97-25-T), Judg-
ment, 15 March 2002, para. 508; Kunarac et al. (IT-96-23-T and IT-96-23/1-T),
Judgment, 22 February 2001, paras. 840841.
71
72
Ibid., references omitted.
73
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 reects 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 oVenders
conduct. Furthermore, unlike vengeance, retribution incorporates a prin-
ciple of restraint; retribution requires the imposition of a just and appro-
priate punishment, and nothing more.
74
In Momir Nikolic , an ICTY Trial Chamber explained that
[c]lassical retributive theory requires that the punishment be proportion-
ate 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 com-
munity 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 conict.
75
Recently, another ICTY Trial Chamber has said that [r]etribution must be
understood as reecting a fair and balanced approach to the exaction of
punishment for wrongdoing. This means that the penalty must be propor-
tionate to the wrongdoing; in other words, the punishment must t 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 specic deterrence or
individual deterrence.
78
In national systems, where the oVender manifests a
social pathology, specic deterrence may assume more importance, of course.
74
Dragan Nikolic (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 140
(emphasis in the original).
75
76
Brdanin (IT-99-36-T), Judgment, 1 September 2004, para. 1090. Also: Todorovic (IT-95-
9/1), Sentencing Judgment, 31 July 2001, para. 29; Simic (IT-95-9/2-S), Sentencing
Judgment, 17 October 2002, para. 33.
77
78
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-96-
10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 882; Niyitegeka (ICTR-96-
14-T), Judgment and Sentence, 16 May 2003, para. 484.
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 commis-
sion 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 conict, 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 conict 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 nd 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 inuencing the legal
79
Dragan Nikolic (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 45;
80
Momir Nikolic (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 89
(emphasis in the original).
81
82
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.
83
84
Jokic (IT-01-42/1-S), Sentencing Judgment, 18 March 2004, para. 34. Also: Babic (IT-03-
72-S), Sentencing Judgment, 29 June 2004, para. 45.
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 reects an
evolution in the thinking of the tribunals that this aspect of sentencing has
been receiving greater attention. An ICTY Trial Chamber said, in Kupres kic ,
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 humani-
tarian law to be committed as well as to create trust in and respect for the
developing system of international justice.
88
In Kordic and C
erkez, the ICTY Appeals Chamber said:

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 nds 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. Parti-
cularly in cases where the crime was committed on a discriminatory basis,
85
86
Ibid.
87
88
89
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 10801081 (references
omitted).
90
Ibid., para. 1073.
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 led 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 rst 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 conict.
92
But the ICTY Appeals Chamber said in C
elebic i that although both national

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
process of a Trial Chamber of the Tribunal.
93
In Kordic and C
erkez the Appeals

Chamber said that [i]n the light of the gravity of many of the crimes under
the International Tribunals jurisdiction, the weight of rehabilitative consid-
erations 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
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), Senten-
cing Judgment, 31 March 2004, para. 18; Babic (IT-03-72-S), Sentencing Judgment, 29
92
Deronjic (IT-02-61-S), Separate Opinion of Judge Mumba, 30 March 2004, paras. 23.
93
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).
94
95
Ibid., para. 1073.
the gravity of the crime or crimes for which the prisoner was convicted, the
treatment of similarly-situated prisoners, the prisoners 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 Chambers 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
ICTY RPE, Rule 125.
97
Kamuhanda (ICTR-95-54A-T), Judgment, 22 January 2004, para. 754. See also: Semanza
98
99
para. 69; Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, paras. 243, 247.
100
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 Wald, 5 July 2001, para. 2; Blas kic
stated in its rst 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 dened later, are crimes which both particularly shock the col-
lective 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 denitions of crimes them-
selves there are important gradations. Thus, an ICTY Trial Chamber con-
sidered the crime against humanity of persecution to be inherently more
serious than other punishable acts falling within the scope of crimes against
101
Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 42.
102
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. 699700.
103
Serushago (ICTR-98-39-S), Sentence, 5 February 1999, para. 13.
104
Ibid., para. 14.
105
106
7 October 1997, paras. 2021. 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.
107
Furundzija (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.
108
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 reect the inherent gravity of the criminal conduct of the
accused.
113
The case law also supports the proposition that individual cir-
cumstances are of secondary importance. In Blas kic , an ICTY Trial Chamber
explained:
Keeping in mind the mission of the Tribunal, it is appropriate to attribute
a lesser signicance to the specic 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 circum-
stances 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 denitive 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
Sikirica et al. (IT-95-8), Sentencing Judgment, 13 November 2001, para. 232. Also:
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 785; Todorovic (IT-95-9/1), Sen-
tencing Judgment, 31 July 2001, para. 113.
110
111
Olaoluwa Olusanya, Sentencing War Crimes and Crimes Against Humanity under the
International Criminal Tribunal for the Former Yugoslavia, Groningen: Europa Law
Publishing, 2005.
112
113
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 731, citing Kupres kic et al.
(IT-95-16-T), Judgment, 14 January 2000, para. 852; and Aleksovski (IT-95-14/1-A),
114
115
Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 242.
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 t pun-
ishment. 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 accuseds position
in the hierarchy is not that signicant. In Aleksovski, the Appeals Chamber
relied on the gravity of the oVence when it granted the Prosecutors 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 participa-
tion was relatively limited. In fact, his superior responsibility as a warden
seriously aggravated the Appellants 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
Ibid., para. 241; Jelisic (IT-95-10-A), Judgment, 5 July 2001, para. 101.
117
para. 22.
118
119
Kupres kic et al. (IT-95-16-T), Judgment, 14 January 2000, para. 852. See also: Jelisic (IT-
95-10-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; Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, para. 249; Kambanda (ICTR-
97-23-A), Judgment, 19 October 2000, para. 125.
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 encour-
agement 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 superiors failure to prevent
or punish those acts and may therefore aggravate the sentence.
121
The Appeals
Chamber found evidence of the Trial Chambers 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 Plavsic 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 illu-
strated 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 ve 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
Ibid., para. 741.
123
Plavs ic (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 52. See:
Nancy Amoury Combs, International Decisions: Plavs ic , (2003) 97 American Journal of
124
[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 diVer-
ences 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 consis-
tency, something that is an important reection 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 persons 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 testied before
the Trial Chamber. The expert opinion assisted the Trial Chamber in assessing
the validity of certain mitigating factors, including the guilty plea and expres-
sion 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
125
126
127
128
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 458459.
129
130
Ibid., paras. 236, 238, 240, 251252, 268.
131
132
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 Pro-
secutor 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 dened, 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 parti-
cular 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 persons 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
Ruggiu (ICTR-97-32-T), Judgment, 1 June 2000, paras. 4751.
136
Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 2730.
137
Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 6162.
138
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-95-
9/2-S), Sentencing Judgment, 17 October 2002, para. 40.
139
140
Rules of Procedure and Evidence, ICC-ASP/1/3, p. 10, Rule 145(2)(e).
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. comman-
ders, or the very architects of the strategy of ethnic cleansing, was low.
142
An
ICTY Trial Chamber in Blas kic 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 eld 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 persons 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 accuseds 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
141
142
Tadic (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000, paras. 5556.
143
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 788. Also: Plavs ic (IT-00-39 and
40/1), Sentencing Judgment, 27 February 2003, para. 57; Simic (IT-95-9/2-S), Senten-
cing Judgment, 17 October 2002, para. 67.
144
145
Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 2730; Kambanda (ICTR-
97-23-S), Judgment and Sentence, 4 September 1998, paras. 6162; Dragan Nikolic (IT-
94-2-S), Sentencing Judgment, 18 December 2003, paras. 179183; Babic (IT-03-72-S),
Sentencing Judgment, 29 June 2004, para. 62.
146
Akayesu (ICTR-96-4-T), Sentence, 2 October 1998; Delalic et al. (IT-96-21-A), Judg-
ment, 20 February 2001, paras. 736737; Sikirica et al. (IT-95-8), Sentencing Judgment,
13 November 2001, paras. 138140; Kambanda (ICTR-97-23-S), Judgment and Sen-
tence, 4 September 1998, para. 44; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6
December 1999, paras. 468470; 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.
and military leaders, but also to prominent personalities in business,
147
religion,
148
intellectual life
149
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 inicted upon witnesses to the crime, the indiscri-
minate, 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
paras. 900905.
149
150
Ibid., para. 1100.
151
152
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 (IT-
94-2-S), Sentencing Judgment, 18 December 2003, paras. 184185.
153
Tadic (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 70; Erdemovic (IT-96-22-S),
Sentencing Judgment, 5 March 1998, para. 20; Furundzija (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; Blas kic (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.
154
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.
155
156
157
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras. 835,
864, 879.
158
159
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 260; Delalic et al. (IT-96-
21-T), Judgment, 16 November 1998, para. 1226; Mrda (IT-02-59-S), Sentencing Judg-
ment, 31 March 2004, paras. 3941.
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 nation-
alist 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
Tadic (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 16; Delalic et al. (IT-96-21-
T), Judgment, 16 November 1998, paras. 1264, 1268, 1275; Blas kic (IT-95-14-T), Judg-
ment, 3 March 2000, para. 783; Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judg-
ment, 22 February 2001, paras. 874875; Dragan Nikolic (IT-94-2-S), Sentencing
Judgment, 18 December 2003, paras. 186199.
161
Dragan Nikolic (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, paras.
2430.
162
Erdemovic (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 20; Kayishema et al.
163
Tadic (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 22; Delalic et al. (IT-96-21-
T), Judgment, 16 November 1998, para. 1274; Todorovic (IT-95-9/1), Sentencing Judg-
ment, 31 July 2001, paras. 6365; Simic (IT-95-9/2-S), Sentencing Judgment, 17 October
2002, para. 63
164
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 276; Vasiljevic (IT-98-32-
A), Judgment, 25 February 2004, para. 162.
165
Simic (IT-95-9/2-S), Sentencing Judgment, 17 October 2002, para. 63. Also: Kvoc ka et al.
(IT-98-30/1-A), Judgment, 28 February 2005, para. 697.
166
Tadic (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 55.
167
Ibid., para. 55; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 785.
168
169
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, paras. 277278; Todorovic (IT-
95-9/1), Sentencing Judgment, 31 July 2001, para. 57
170
consciously participated in the commission of the crimes,
171
a comment
diYcult to reconcile with the general principle by which all crimes be com-
mitted 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 accuseds 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 gener-
ally 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
circumstances in the determination of guilt. In C
elebic i, the Appeals Chamber

did not exclude the possibility that such evidence be relevant at the senten-
cing stage, although in the specic 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
171
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. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, para. 13; Blas kic (IT-95-14-T), Judg-
172
Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 30. Also: Delalic et al. (IT-96-
21-T), Judgment, 16 November 1998, paras. 1261, 1275; Kambanda (ICTR-97-23-S),
Judgment and Sentence, 4 September 1998, paras. 6162; Krstic (IT-98-33-T), Judgment,
2 August 2001, para. 711; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 793.
173
174
175
Ibid., paras. 1217, 1244, 1251.
176
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1244; Kordic et al. (IT-
95-14/2-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.
177
Tadic (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 58; Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, para. 16.
178
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 745; Naletilic et al. (IT-98-
34-T), Judgment, 31 March 2003, para. 81; Krnojelac (IT-97-25-T), Judgment, 15 March
2002, para. 173.
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 qualication substantial. In Todorovic , an ICTY
Trial Chamber held that the determination as to whether an accuseds coop-
eration has been substantial depends on the extent and quality of the infor-
mation he provides.
182
One ICTY Trial Chamber has singled out for mention
the spontaneity and selessness of the co-operation which must be lent
without asking for something in return.
183
However, the fact that an accused
may benet 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 Krstics
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 pro-
ceedings evidences a lack of remorse for the role he played in the Srebre-
nica area in July 1995.
185
As a general rule, when there has been substantial cooperation, the Prose-
cutor will be prepared to admit it, and the issue will not be in dispute.
186
As a
179
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 760765. 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.
180
Garza v. United States of America (Case 12.243), Report No. 52/01, 4 April 2001, paras.
105111.
181
ICTY RPE, Rule 101(B)(ii); ICTR RPE, Rule 101(B)(ii); SCSL RPE, Rule 101(B)(ii).
182
Todorovic (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 86. Also: Plavs ic (IT-00-
39 and 40/1), Sentencing Judgment, 27 February 2003, para. 63; Blas kic (IT-95-14-T),
183
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 774; Erdemovic (IT-96-22-S),
Sentencing Judgment, 5 March 1998, para. 16.
184
Todorovic (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 86.
185
186
Erdemovic (IT-96-22-S), Sentencing Judgment, 5 March 1998, paras. 3, 16, 20; Erdemo-
vic (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 99101, 111; Jokic
(IT-01-42/1-S), Judgment, 18 March 2004, paras. 9496; Kambanda (ICTR-97-23-S),
Judgment and Sentence, 4 September 1998, paras. 36, 47, 60.iii; Serushago (ICTR-98-
39), 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
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
surrender
188
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 court
193
and save the Tribunals time and
Sentence, 21 May 1999, para. 20; Blas kic (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. 5658; 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. 8388; Dragan Nikolic (IT-94-2-S), Sentencing Judgment, 18
December 2003, paras. 258260; Babic (IT-03-72-S), Sentencing Judgment, 29 June
2004, paras. 7275.
187
Babic (IT-03-72-S), Sentencing Judgment, 29 June 2004, paras. 8789.
188
Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 34; Erdemovic (IT-96-22-T),
Sentencing Judgment, 29 November 1996, para. 55; Kupres kic et al. (IT-96-16-T),
Judgment, 14 January 2000, paras. 843, 847, 850; Blas kic (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; Plavs ic (IT-00-39 and 40/1), Sentencing Judgment, 27 Feb-
ruary 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; Kvoc ka et al. (IT-98-30/1-A),
Judgment, 28 February 2005, para. 710.
189
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. 232237; 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; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 777; Ruggiu (ICTR-97-32-I),
Judgment and Sentence, 1 June 2000, paras. 5254; Todorovic (IT-95-9/1-S), Sentencing
Judgment, 31 July 2001, paras. 7582.
190
Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, para. 150.
191
Plavs ic (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.
192
Erdemovic (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16(ii); Simic (IT-95-
9/2-S), Sentencing Judgment, 17 October 2002, para. 83.
193
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-95-9/2-
S), Sentencing Judgment, 17 October 2002, paras. 8485.
resources.
194
Furthermore, a guilty plea has been acknowledged for its con-
tribution to establishing the truth
195
and for promoting peace and reconcilia-
tion.
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 Jokics 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 conict in the
former Yugoslavia. The Trial Chamber believes that such mutual appre-
ciation of the events can be only advanced by Miodrag Jokics 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 nally notes that Miodrag
Jokics 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 Sreb-
renica 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
Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, para. 149; Erde-
movic (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16(ii); Todorovic (IT-95-
9/1), Sentencing Judgment, 31 July 2001, para. 81; Plavs ic (IT-00-39 and 40/1), Senten-
cing Judgment, 27 February 2003, para. 73; Banovic (IT-02-65/1-S), Sentencing Judg-
ment, 28 October 2003, para. 67; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4
195
Todorovic (IT-95-9/1), Sentencing Judgment, 31 July 2001, para. 81; Momir Nikolic (IT-
02-60/1-S), Sentencing Judgment, 2 December 2003, para. 149; Dragan Nikolic (IT-94-2-
S), Sentencing Judgment, 18 December 2003, para. 233.
196
Plavs ic (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 80; Obre-
novic (IT-02-60/2-S), Judgment, 10 December 2003, para. 111; Dragan Nikolic (IT-94-2-
S), Sentencing Judgment, 18 December 2003, para. 233; Babic (IT-03-72-S), Sentencing
Judgment, 29 June 2004, paras. 6869.
197
Jokic (IT-01-42/1-S), Judgment, 18 March 2004, para. 77.
198
199
Serushago (ICTR-98-39), Sentence, 5 February 1999, paras. 3941; Erdemovic (IT-96-22-
S), 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, 5052; Blas kic (IT-95-14-T), Judgment, 3
March 2000, para. 775; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000,
paras. 6972; Kunarac et al. (IT-96-23-Tand IT-96-23/1-T), Judgment, 22 February 2001,
para. 868; Todorovic (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, paras. 8992;
Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, paras. 152, 192, 194;
contrition
200
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 signicant 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
emo-
tional immaturity,
209
physical and mental conditions of the oVender,
210
work record,
211
lack of dangerousness,
212
lack of personal participation in
Jokic (IT-01-42/1-S), Judgment, 18 March 2004, para. 89; Plavs ic (IT-00-39 and 40/1),
Sentencing Judgment, 27 February 2003, paras. 6681; Dragan Nikolic (IT-94-2-S),
Sentencing Judgment, 18 December 2003, para. 241; Kvoc ka et al. (IT-98-30/1-A), Judg-
ment, 28 February 2005, para. 715.
200
Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 38.
201
202
203
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; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 780; Plavs ic
(IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 65; Kupres kic 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), Judg-
ment and Sentence, 16 May 2003, paras. 495498.
204
205
Erdemovic (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16; Erdemovic (IT-
96-22-T), Sentencing Judgment, 29 November 1996, paras. 9698, 106, 111; Delalic et al.
(IT-96-21-T), Judgment, 16 November 1998, paras. 1239, 1270; Rutaganda (ICTR-96-3-
T), Judgment and Sentence, 6 December 1999, para. 471; Kupres kic et al. (IT-96-16-T),
Judgment, 14 January 2000, para. 850; Blas kic (IT-95-14-T), Judgment, 3 March 2000,
para. 781; Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 7374;
Sikirica et al. (IT-95-8-T), Sentencing Judgment, 13 November 2001, paras. 195, 229.
206
207
208
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 362, 408; Vasiljevic (IT-
98-32-T), Judgment, 29 November 2002, para. 300; Blas kic (IT-95-14-T), Judgment, 3
209
Erdemovic (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16.
210
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. 9395.
211
212
96-22-T), Sentencing Judgment, 29 November 1996, para. 111.
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
beha-
viour in preventive detention
218
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 fty!).
222
But in a judgment involving a twenty-three-year- old, an ICTY Trial Chamber
said this factor did not deserve signicant 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
Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, paras. 7778; Ntakiruti-
mana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras.
895898.
214
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 44; Niyitegeka
(ICTR-96-14-T), Judgment and Sentence, 16 May 2003, paras. 495498; Plavs ic (IT-00-
39 and 40/1), Sentencing Judgment, 27 February 2003, para. 65.
215
Erdemovic (IT-96-22-S), Sentencing Judgment, 5 March 1998, para. 16.
216
217
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 105, 107;
Kupres kic et al. (IT-96-16-T), Judgment, 14 January 2000, para. 846; Ruggiu (ICTR-97-
32-I), Judgment and Sentence, 1 June 2000, paras. 6162; Ntakirutimana et al. (ICTR-
96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 895898, 908909;
Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, paras. 495498;
218
96-22-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.
219
220
Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 271; Simic (IT-95-9/2-S), Senten-
cing Judgment, 17 October 2002, para. 98. See also: Rutaganda (ICTR-96-3-T), Judg-
ment and Sentence, 6 December 1999, para. 472; Ntakirutimana et al. (ICTR-96-10
and ICTR-96-17-T), Judgment, 21 February 2003, paras. 895898; Strugar (IT-01-42),
Judgment, 31 January 2005, para. 469.
221
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996, paras. 44, 111; Tadic
(IT-94-1-T), Sentencing Judgment, 14 July 1997, paras. 6263; 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; Blas kic (IT-95-14-T), Judgment, 3 March 2000,
para. 778.
222
Serushago (ICTR-98-39), Sentence, 5 February 1999, para. 39.
223
Furundzija (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.
had been twenty-three at the time of the oVence.
224
With respect to an oVender
who was twenty-ve years old at the time of the crimes, an ICTY Trial
Chamber said this was not such a young age that it would justify mitiga-
tion.
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-eight
231
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 Stat-
utory 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 com-
mitted 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 illness
235
or
duress,
236
even where insuYcient to constitute a full defence. However, the
224
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),
225
Mrda (IT-02-59-S), Sentencing Judgment, 31 March 2004, para. 93.
226
227
Tadic (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 62; Serushago (ICTR-98-
39), Sentence, 5 February 1999, para. 39.
228
paras. 895898.
229
Plavs ic (IT-00-39 and 40/1), Sentencing Judgment, 27 February 2003, para. 65.
230
231
Jokic (IT-01-42/1-S), Judgment, 18 March 2004, paras. 100101.
232
233
234
235
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 1284; Vasiljevic (IT-98-
32-T), Judgment, 29 November 2002, paras. 282283.
236
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996; Blas kic (IT-95-14-
T), 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. 6566.
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 ques-
tion. The ICTY Statute makes no mention of service of sentence in the States
of the former Yugoslavia, whereas the ICTR Statute acknowledges the possi-
bility 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 Secretary-
General 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: Im 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-Generals
report on the draft SCSL Statute, an example of such circumstances is the
237
Todorovic (IT-95-9/1-S), Sentencing Judgment, 31 July 2001, para. 93, fn. 98; Simic (IT-
95-9/2-S), Sentencing Judgment, 17 October 2002, para. 74. Conrmed: Kvoc ka et al.
(IT-98-30/1-A), Judgment, 28 February 2005, para. 707.
238
See: Report of the Secretary-General Pursuant to Paragraph 5 of Security Council
Resolution 955 (1994), UN Doc. S/1995/134 (1995), para. 19.
239
240
tion 808 (1993), UN Doc. S/25704 (1993), para. 121.
241
Review of Penal Law 211, at p. 227.
242
Pragmatics of Punishment, (1996) 90 American Journal of International Law 501, at pp.
507508.
243
Cited in: Mariann Meier Wang, The International Tribunal for Rwanda: Opportunities
for Clarication, Opportunities for Impact, (1995) 27 Columbia Human Rights Law
Review 177, at p. 203.
244
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 Herze-
govina, Croatia, Norway, Finland and Iran. Other States agreed to take prison-
ers, 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 Tribunals designation of the State in which a convicted
person is to serve a sentence of imprisonment.
249
Once the sentence has
become nal, the Registrar inquires with States that have declared their will-
ingness 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 persons relations,
taking into account the nancial resources they have available to visit the
convicted person. Other relevant criteria include whether the convicted per-
son 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 imprison-
ment and rules governing security and liberty in the State concerned. The
Practice Direction recognises that the President may decide that the designa-
tion of the State shall not be made public, and in several cases there is in
fact no public record of this.
Norway was the rst to accept an ICTY convict. Drazen Erdemovic was
sent to a Norwegian prison after the Trial Chamber nally settled on a term of
ve years, of which approximately two years had already been served in
245
246
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.
247
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.
248
249
Practice Direction on the Procedure for the International Tribunals Designation of
the State in which a Convicted Person is to Serve His/Her Sentence of Imprisonment,
9 July 1998.
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,
Dusko 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 conrmed the ICTYs 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
Sweden
260
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 uncondition-
ally, 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 deten-
tion.
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
Erdemovic (IT-96-22-A), Sentencing Judgment, 5 March 1998.
251
Radomir Kovac, 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.
252
253
254
Dusko Sikirica, Damir Dosen and Mitar Vasiljevic. Ninth Annual Report of the ICTY,
UN Doc. A/57/379-S/2002/985, annex, para. 242.
255
Ranko Cesic. JP/MOW/959
e
, 12 April 2005.
256
Hazim Delic and Esad Landzo. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/
2003/829, annex, para. 263.
257
Predrag Banovic.
258
Goran Jelisic. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex,
para. 263.
259
Darko Mrda, Stevan Todorovic, Drago Josipovic and Vladimir S
antic. Ninth Annual

Report of the ICTY, UN Doc. A/57/379-S/2002/985, annex, para. 242.
260
Biljana Plavsic. Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829,
annex, para. 263.
261
Radislav Krstic.
262
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,
133134; Ninth Annual Report of the ICTR, UN Doc. A/59/183-S/2004/601.
263
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.
264
Third Annual Report of the ICTR, UN Doc. A/53/429-S/1998/857, annex, para. 158.
persons, Kambanda, Akayesu, Kayishema, Ruzindana, Musema and Serush-
ago, were transferred to Mali after it had been designated by the President as
the State of enforcement.
265
In the rst 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 terri-
tory 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 imprison-
ment 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 Interna-
tional 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 entitledto reviewpardons or commutations of penalties
before such measures are granted or enforced.
270
265
266
Erdemovic (IT-96-22-T), Sentencing Judgment, 29 November 1996, para. 70. See also:
267
tion 808 (1993), UN Doc. S/25704 (1993), para. 121.
268
269
270
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 ICTYand ICTR RPE provide somewhat more detail
on the relevant considerations: In determining whether pardon or commu-
tation 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 prisoners 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 fullling certain conditions. This may be a form of temporary
release for, say, a specic event like the funeral of a loved one. It may also be
indenite 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 signicant 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-ve 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 Pre-
sident 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
ICTY RPE, Rule 125; ICTR RPE, Rule 126. This Rule was dropped by the judges from
the SCSL RPE.
273
Mary Margaret Penrose, Spandau Revisited: The Question of Detention for Interna-
tional War Crimes, (2000) 16 New York Law School Journal of Human Rights 553, at
p. 581.
274
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.
Tribunal of granting early release after the convicted person has served two-
thirds 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
rst 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 Shahabuddeens theory has the consequence of reducing mini-
mum prison terms imposed by Trial Chambers to mere recommendations.
281
275
276
Ibid., para. 95.
277
ICTY RPE, Rule 104.
278
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), Judg-
ment 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.
279
280
The equivalent provisions are: ICTR Statute, art. 27; SCSL Statute, art. 23.
281
Dragan Nikolic (IT-94-2-A), Partial Dissenting Opinion of Judge Shahabuddeen, 4
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 Tribunals own detention unit. Following the ICTY
Appeals Chamber decision of 29 July 2004 which reduced the sentence from
forty-ve years to nine years, minus the more than eight years of time already
served in preventive detention (he surrendered on 1 April 1996 and rst
appeared before the ICTY on 3 April 1996), President Meron granted his
application for early release, to be eVective 2 August 2004.
282
Blaskic had never
been in the custody of a State.
282
PART 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 modication 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 reect the functions
to be performed by it. Since the International Tribunal is established for
the prosecution of persons responsible for serious violations of interna-
tional humanitarian law committed in the territory of the former Yugo-
slavia, 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
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).
2
SCSL Agreement, art. 22.
3
Abody 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.
587
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 signicant 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 agree-
ment 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 ght 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 accom-
panying 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
tion 808 (1993), UN Doc. S/25704 (1993), para. 69.
5
ICTY Statute, art. 31.
6
Agreement Between the United Nations and the Kingdom of the Netherlands Concern-
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. 168171.
7
UN Doc. S/RES/827 (1993), para. 7.
8
UN Doc. S/PV.3453 (1994), at 16.
9
UN Doc. S/RES/955 (1994), para. 5.
588 O R G A N I S AT I O N O F T H E T R I B U N A L S
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 head-
quarters 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 Secretary-
General has noted that the ICTY and ICTR were able to benet 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 benets to locating tribunals inside the
countries concerned, including easier interaction with the local popula-
tion, 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
tion 955 (1994), UN Doc. S/1995/134 (1995), para. 45.
11
UN Doc. S/RES/977 (1995).
12
Agreement Between the United Nations and the United Republic of Tanzania Concern-
ing the Headquarters of the International Tribunal for Rwanda, UN Doc. A/51/399-S/
1996/778, annex.
13
UN Doc. S/RES/1315 (2000), para. 7.
14
15
Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 10.
16
Headquarters Agreement, Between the Republic of Sierra Leone and the Special Court
for Sierra Leone, 21 October 2003.
S T R U C T U R E A N D A D M I N I S T R AT I O N O F T H E T R I B U N A L S 589
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 benets,
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
Kupres kic 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 rst-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
The Rule of Law and Transitional Justice in Conict and Post-Conict Societies, Report
18
19
Kupres kic 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;
Kupres kic et al. (IT-95-16-T), Condential Order on On-Site Visit, 13 October 1998.
The visit did not take place because of security issues.
20
Blagojevic et al. (IT-02-60-T), Judgment, 17 January 2005, paras. 31, 910.
21
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 Prosecutors 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. 1415; Bagosora (ICTR-98-41-T), Decision on Prosecutors 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.
22
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. 135136.
Serbo-Croatian, at the ICTY, and Kinyarwanda, at the ICTR. The working
language of the SCSL is English,
23
although major documents are also trans-
lated into Krio, Sierra Leones 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 nally managed to achieve simultaneous transla-
tion 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 simulta-
neous 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 judg-
ments in both English and French simultaneously. When the rst major
decision of the ICTY was released on 2 October 1995, in English only, Judge
Jules Deschenes authored a short individual opinion complaining that the
new Tribunal was not respecting the tradition of oYcial bilingualism of
international courts.
28
23
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.
24
First Annual Report of the President of the Special Court for Sierra Leone, for the
period 2 December 2002 1 December 2003, p. 15.
25
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 Conrmation
of the Status of Witnesses for the Defence, 31 May 1996; Muhimana (ICTR-95-1-B-I),
Decision relative a` la requete de la defence aux ns de traduction des documents de
laccusation et des actes de procedure en kinyarwanda, langue de laccuse, et en francais,
langue de son conseil, 6 November 2001.
26
Eighth Annual Report of the ICTR, UN Doc. A/58/140-S/2003/707, para. 4.
27
Akayesu (ICTR-96-4-A), Ordonnance (Requete aux ns de traduction des memoires
de lAppelant), 29 March 2001.
28
Tadic (IT-94-1-AR72), Separate Declaration of Judge J. Deschenes on the Defence
Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
In principle, counsel before the tribunals must be uent 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 conicts 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 led 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
ICTY RPE, Rule 44(B).
30
ICTY RPE, Rule 3(D); ICTR RPE, Rule 3(C).
31
ICTY RPE, Rule 3(F).
32
33
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).
34
ICTY Statute, art. 21(4)(a); ICTR Statute, art. 20(4)(a); SCSL Statute, art. 17(4)(a).
35
ICTY RPE, Rule 47(G); SCSL RPE, Rule 52(C).
36
ICTY RPE, Rule 66(A).
37
ICTY RPE, Rules 55(C), 59(B); SCSL RPE, Rule 55.
38
39
ICTY Statute, art. 21(4)(f); ICTR Statute, art. 20(4)(f); SCSL Statute, art. 17(4)(f).
40
ICTY RPE, Rule 98ter(D).
Persons who appear before the ICTYand 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 ve 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
ICTY RPE, Rule 3(C); ICTR RPE, Rule 3(D).
42
43
ICTY RPE, Rule 15bis(A); ICTR RPE, Rule 15bis(A); SCSL RPE, Rule 16(A).
44
ICTY Statute, art. 14(3).
45
tion 955 (1994), UN Doc. S/1995/134 (1995), para. 9.
46
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 Interna-
tional 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.
47
UN Doc. S/RES/1315 (2000), para. 7.
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 ICTYand 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
UN Doc. S/RES/1329 (2000), paras. 23.
50
51
UN Doc. S/RES/1166 (1998).
52
53
UN Doc. S/RES/1165 (1998).
54
ICTY Statute, art. 14(3) & (5).
55
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
qualied judges at the international tribunals. Lacking any formula similar to
that adopted by the International Criminal Court aimed at ensuring gender
balance,
57
the ICTYand 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 ICTYand 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 ve 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 parti-
cular the member States of the Economic Community of West African States
56
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).
57
36(8)(a)(iii).
58
ICTY Statute, art. 13(2)(d).
59
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 (Ines Mo nica Weinberg de Roca
of Argentina, Alphonsus Martinus Maria Orie of the Netherlands, Wolfgang Schomburg
of Germany).
60
UN Doc. S/RES/1482 (2003), para. 1(c).
61
UN Doc. S/RES/1411 (2002).
and the Commonwealth, at the invitation of the Secretary-General.
62
Simi-
larly, 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 rst appointments one of the two members of the
Appeals Chamber was a foreign national.
Reecting on the experience of the tribunals, the United Nations Secretary-
General 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 nest 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 specic
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
Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 2(2)(a).
63
The Rule of Law and Transitional Justice in Conict and Post-Conict Societies, Report
64
See: Daryl A. Mundis, Improving the Operation and Functioning of the International
Criminal Tribunals, (2000) 94 American Journal of International Law759, at pp. 767773.
65
UN Doc. S/RES/1329 (2000), para. 1.
66
Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, paras. 19
20.
67
UN Doc. S/RES/1431 (2002). Also: UN Doc. S/RES/1512 (2003).
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 qualications required in their countries for appointment to
the highest judicial oYces. In his report to the Security Council, the Secretary-
General 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 nal stages of a complex and lengthy trial, were not
re-elected, the Security Council adopted a resolution allowing them to con-
tinue 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
This terminology was adopted when ad litem judges were created, although it seems odd
to describe those who serve four-year terms as permanent.
69
ICTY Statute, art. 13quater.
70
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.
71
UN Doc. S/RES/1597 (2005).
72
tion 808 (1993), UN Doc. S/25704 (1993), para. 74.
73
74
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)).
75
ICTY RPE, Rule 15bis(C); ICTR RPE, Rule 15bis(C); SCSL RPE, Rule 16. This is
discussed above at pp. 412413.
76
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 reected 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 long-
term 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 desig-
nate 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 Cham-
ber.
80
There is no rotation at the SCSL, as the judges are appointed specically
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 elec-
tion 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
SCSL RPE, Rule 16.
78
79
E.g., at the ICTY, Jules Deschenes 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.
80
ICTY RPE, Rule 27.
81
82
83
ICTY RPE, Rules 2426, 35; ICTR RPE, Rules 2426, 35; SCSL RPE, Rules 2426, 35.
84
85
SCSL RPE, Rule 18(B). The original Rule allowed for a three-year term, but was changed
several months after the rst President entered his second term.
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 Presidents most impor-
tant function is in designation of Trial Chambers
89
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
author-
isation for the Tribunal to sit elsewhere than at its seat,
94
formal communica-
tion with the Security Council
95
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 imple-
mentation 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 Bureaus powers include determinations that a judge
86
ICTY Statute, art. 14(2); ICTR Statute, art. 34(2); ICTY Statute, art. 12(3).
87
88
89
ICTY RPE, Rules 9, 11bis, 62; ICTR RPE, Rules 9, 11bis, 15(A), (B).
90
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).
91
92
ICTY RPE, Rule 19.
93
ICTY RPE, Rule 3(D); ICTR RPE, Rule 3(C).
94
ICTY RPE, Rule 4; ICTR RPE, Rule 4.
95
ICTY RPE, Rules 7bis, 11, 13, 59, 61(E); ICTR RPE, Rule 7bis; 11, 13.
96
ICTY RPE, Rule 16.
97
Ibid., Rule 44(B).
98
Ibid., Rule 46(B) and (C).
99
Ibid., Rule 64.
100
Ibid., Rule 103(A).
101
Ibid., Rule 23ter.
102
Ibid., Rule 21.
103
Ibid., Rules 2(A), 23(A).
104
Ibid., Rule 23(B).
should be disqualied,
105
examination of indictments to ensure they concen-
trate on senior leaders
106
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 Govern-
ment 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 Prose-
cutor 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 Prosecu-
tor.
111
The Prosecutors 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 Prosecutors direction.
112
Each Prosecutor
is assisted by a Deputy Prosecutor, who can exercise the functions of the
Prosecutor in the event of the latters absence from duty or inability to act or
upon the Prosecutors 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 eld oYces, in Zagreb, Sarajevo,
Banja Luka, Belgrade, Pristina and Skopje. The ICTR Prosecutor operates a
major eld 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 pro-
ceedings, 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 dinstruction) is
more balanced, and principally seeks to nd the truth, whereas the adversarial
prosecutor is focused on building a case to prove guilt of the suspect. But an
105
Ibid., Rule 15(B).
106
Ibid., Rule 28(A).
107
Ibid., Rule 74bis.
108
109
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. 150155.
110
111
Ibid., art. 16(5).
112
113
Ibid., Rule 38(B).
114
Ibid., Rule 38(A).
115
SCSL Agreement, art. 3(2).
116
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, includ-
ing 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 Prosecutors 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 ICTYand 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 Prosecutors 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
nd the right person for the job, and even then, an incumbent was identied
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
Blagojevic et al. (IT-02-60-PT), Joint Decision on Motions Related to Production of
Evidence, 12 December 2002, para. 26.
119
Simic et al. (IT-95-9-PT), Separate Opinion of Judge Hunt, 27 July 1999, para. 25.
120
p. 4.
121
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).
122
ICTY Statute, art. 16(4); ICTR Statute, art. 15(4) (as amended by UN Doc. S/RES/1503
(2003)).
123
124
UN Doc. S/RES/1504 (2003).
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 rst 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 conict with such religious
dimensions.
127
Then the Secretary-General identied 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 Venezuelas 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 countrys new post-apartheid Constitutional
Court, met with agreement. President Mandela agreed that Judge Goldstone
could serve, but only for two years.
131
Goldstone later identied 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
125
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.
126
David J. ScheVer, Three Memories from the Year of Origin, 1993, (2004) 2 Journal of
127
Paul Lewis, Disputes Hamper UN Drive for a War Crimes Tribunal, New York Times,
9 September 1993, p. 10.
128
UN Doc. S/RES/877 (1993).
129
130
UN Doc. S/RES/936 (1994).
131
132
UN Doc. S/RES/1047 (1996). Also: Third Annual Report of the ICTY, UN Doc. A/51/
292-S/1996/665, para. 87.
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 inuenced the structure and
approach of the OYce of the Prosecutor. Goldstone appointed another Aus-
tralian, this time a distinguished detective with experience in war crimes, as
chief of investigations. When Carla Del Ponte took over, in 1999, she endea-
voured to readjust the structure of the OYce along lines more familiar to
continental jurists. Accordingly, the investigations side of the Prosecutors
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 rst 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 Inter-
national Criminal Court. But because of the limited jurisdictional scope of the
ad hoc tribunals, there has been no corresponding initiative to subject the
Prosecutors 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 Pro-
secutor took the unprecedented step of actually publishing the internal
report, which recommended against further investigation.
135
The Prosecutors
decision was harshly criticised by international NGOs.
136
133
UN Doc. S/RES/1259 (1999).
134
Paul Lewis, South African is to Prosecute Balkan War Crimes, New York Times, 9 July
1994, p. 2.
135
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.
136
Anthony J. Colangelo, Manipulating International Criminal Procedure: The Decision of
the ICTYOYce of the Independent Prosecutor not to Investigate NATO Bombing in the
Former Yugoslavia, (2003) 97 Northwestern University Law Review 1393.
When the ICTY began operations, the war in Bosnia and Herzegovina was
still raging, and it was not apparent that the leading suspects those identi-
ed, for example, in the famous naming names speech of United States
diplomat Lawrence Eagleburger
137
were going to fall into the ICTYs 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 Karadzic
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 Tribunals creation was simultaneously an act of hope, desperation
and cynicism by an international community lacking a coherent policy to
respond to the carnage inicted 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 Karadzic and Mladic, and they
did not attend the Dayton peace negotiations later that year. Instead, another
potential suspect, Slobodan Milosevic, stood in their place. Both Milosevic
and the Croatian leader, Tudjman, must have been condent that they were
not threatened with prosecution at the time.
Goldstone justied what was described as a pyramidal approach. He
would build a base by prosecuting low-level oVenders, and this would gradu-
ally lead to the big sh. But the strategy was in many ways quite opportu-
nistic. As Goldstone explained, the future nancing 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 Goldstones approach, and ultimately did adopt
a resolution, on 31 January 1995, saying that the tribunal should pursue the
main planners and organisers.
140
137
See above at p. 19.
138
Richard J. Goldstone, For Humanity. Reections of a War Crimes Investigator, New
Haven: Yale University Press, 2000, pp. 102103.
139
Gabrielle Kirk McDonald, Reections on the Contributions of the International Crim-
inal Tribunal for the Former Yugoslavia, (2001) 24 Hastings International and Com-
parative Law Review 155, at p. 161.
140
Antonio Cassese, The ICTY: A Living and Vital Reality, (2004) 2 Journal of Interna-
tional Criminal Justice 585, at pp. 586588.
Nevertheless, the rst trials were of relatively minor and insignicant
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
conicting 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 particu-
larly diYcult to visit on the commanders under the doctrine of command
responsibility. It would require proving that the commanders either par-
ticipated 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
Goldstones famous pyramid. The crowning moment occurred in June 2001,
when political transformation in Serbia ultimately delivered Slobodan
Milosevic, who had been publicly indicted in May 1999, when he was still
the countrys 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
Louise Arbour, Crimes Against Women under International Law, (2003) 21 Berkeley
Journal of International Law 196 at p. 203.
142
UN Doc. S/RES/1329 (2000).
143
The rst 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
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 direct-
ing 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 neu-
trality 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 dening 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
ICTYand ICTR for several years. By 2000, there were rumblings of a comple-
tion 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 commis-
sion 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 Prosecutors
investigative strategy continues to be to prosecute the leaders of the conict.
Lower level perpetrators will continue to be subject to local/domestic prose-
cutions and there may, in the future, be a truth and reconciliation process of
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.
144
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: Theogene
Rudasingwa, The Rwanda Tribunal and its Relationship to National Trials in Rwanda,
(1998) 13 American University International Law Review 1469.
145
On the completion strategy, see above at pp. 4043.
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 autho-
rity of the President, the Registrar shall be responsible for the administration
and servicing of the Tribunal and shall serve as its channel of communica-
tion.
152
The Registrar has sometimes been described as the neutral messen-
ger 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
146
147
See: William A. Schabas, Genocide Trials and Gacaca Courts, (2005) 3 Journal of
International Criminal Justice 879.
148
William A. Schabas, A Synergistic Relationship: The Sierra Leone Truth and Reconcilia-
tion Commission and the Special Court for Sierra Leone, (2004) 15 Criminal Law
Forum 3; Abdul Tejan-Cole, The Complementary and Conicting Relationship Between
the Special Court for Sierra Leone and the Truth and Reconciliation Commission,
(2003) 6 Yale Human Rights and Development Law Journal 139.
149
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, Reections on the ICTY Registry,
(2004) 2 Journal of International Criminal Justice 480.
150
ICTY Statute, art. 11(c); ICTR Statute, art. 10(c).
151
UN Doc. A/51/789, annex.
152
ICTY RPE, Rule 33(A); ICTR RPE, Rule 33(A); SCSL RPE, Rule 33(A). The text in the
SCSL RPE is slightly diVerent.
153
154
tion 808 (1993), UN Doc. S/25704 (1993), para. 90.
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 latters absence from duty or
inability to act, or upon the Registrars 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 reecting 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), nance (e.g.,
Budget and Finance Section), victims and witnesses (e.g., Victims and Wit-
nesses 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
Gabrielle Kirk McDonald, The International Criminal Tribunals: Crime and Punish-
ment 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. 547557.
156
ICTY Statute, art. 17(3); ICTR Statute, art. 16(3); SCSL Statute, art. 16(3). The Pre-
sident, 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.
157
158
159
160
161
Ntuyahaga (ICTR-98-40-T), Declaration on a Point of Law by Judge La ty Kama,
President of the Tribunal, Judge Lennert Aspergren and Judge Navanethem Pillay,
22 April 1999.
Services (OIOS) to investigate the functioning of the ICTR. The OIOS con-
cluded 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 nal judgment has not been rendered. The statutes
say nothing about facilities for detention pending trial and prior to sentence.
The Secretary-Generals 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 rst 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 reect 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 conict 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
Tribunals specic 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 con-
cerning 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
162
UN Doc. A/51/789, annex.
163
Second Annual Report of the ICTR, UN Doc. A/52/582-S/1997/868, annex, para. 57.
164
165
166
Detention Unit Regulations to Govern the Supervision of Visits to and Communica-
tions 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.
jurisdiction of the Registrar.
167
The Netherlands prison administration has a
number of responsibilities, ranging from practical matters, such as the provi-
sion 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 tness 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 court-
rooms and the oYces of the institutions 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 ob-
taining desktop computers, printers and mobile telephones, for use in pre-
paration 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
167
S
es elj (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; S
es elj (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.
168
Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, paras.
103104.
169
Fifth Annual Report of the ICTR, UN Doc. A/55/435-S/2000/927, annex, para. 102.
170
171
Norman et al. (SCSL-04-14-PT), Decision on Request by Samuel Hinga Norman for
Additional Resources to Prepare his Defence, 23 June 2004.
172
First Annual Report of the SCSL, p. 24.
173
Second Annual Report of the ICTY, UNDoc. A/50/365-S/1995/728, annex, paras. 28, 106;
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
S
eselj, 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 Tribunals
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 S
eselj complained that he could not be visited

by Bishop Filaret of Milesevo, 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 wit-
nesses, 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 rst of its kind in any international context. It is an
expression of the profound concern felt by the Security Council and by
174
Norman et al. (SCSL-2004-14), Decision Prohibiting Visits, 8 November 2004.
175
176
S
es elj (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.
177
S
es elj (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.
178
ICTY RPE, Rule 34(A)(iii).
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 testied 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 prosecu-
tion witnesses and one for defence witnesses.
182
The Units operate with a high
level of condentiality, 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 eld oYces, in
Sarajevo and Kigali respectively.
Specic responsibilities include brieng investigators who interview vic-
tims 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 pro-
vide psychological help and support, and coordinate protection measures. Wit-
nesses 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 Units personnel comprises professionals experienced in dealing
with sexual assault, and people who are uent 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
ICTR RPE, Rule 34.
181
SCSL RPE, Rule 34.
182
183
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 ICTYand two years since
defence counsel rst appeared in proceedings, that the Registrar proposed the
preparation of a code of conduct to govern professional behaviour.
188
The
184
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.
185
186
ICTY RPE, Rules 44(C), 45; ICTR RPE, Rules 44(C), 45; SCSL RPE, Rule 45.
187
188
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 Registrars 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 associa-
tions. 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).
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 Associations 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 stan-
dards and discipline is handled by the relevant bar association. However,
establishment at the ICTYof 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
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.
190
Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, annex, para. 88.
191
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.
192
David Tolbert, The ICTYand Defence Counsel: ATroubled Relationship, (2003) 37 New
England Law Review 975, at p. 985.
193
In accordance with ICTR RPE, Rules 44(B), 46(G) and SCSL RPE, Rules 44(B), 46(G).
194
Tolbert, The ICTY and Defence Counsel, at p. 985 (reference omitted).
195
196
ICTY RPE, Rule 44(A)(iii).
discipline was handled by the Registrar, who could remove counsel from the
roster, and by the Tribunals Chambers themselves, within the context of con-
tempt of court proceedings
197
and litigation concerning conict of interest.
198
The Association of Defence Counsel can expel a member, with the auto-
matic 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 gentlemens 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 SCSLs 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 rst
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 qualied
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 rst Annual Report of the SCSL, [i]t is the Registrars 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
197
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.
198
Simic et al. (IT-95-9-PT), Decision on the Prosecution Motion to Resolve Conict 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.
199
Ellis, Evolution of Defence Counsel, at p. 972.
200
Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, ICTY,
para. 361.
201
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.
202
SCSL RPE, Rule 45.
203
First Annual Report of the President of the Special Court for Sierra Leone, for the
period 2 December 2002 1 December 2003, p. 16.
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 perma-
nent 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 diVe-
rent. The vast majority of defendants have claimed indigence, with the result
that the costs of their defence have been borne by the tribunals. This repre-
sents a very signicant 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 con-
sequences 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. Time-
based payment has the weakness of encouraging dilatory and frivolous pro-
ceedings so as to lengthen the trial and, accordingly, the amount of fees paid
to defence counsel.
208
204
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.
205
Tolbert, The ICTY and Defence Counsel, at p. 982.
206
207
Ibid., pp. 953954.
208
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.
2327; 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.
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 establish-
ing 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 qualications 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 benet 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 ve years of professional
experience rather than ten.
214
In 2000, the ICTY Directive dealing with qualications for assigned counsel
was amended to require reasonable experience in criminal and/or interna-
tional law.
215
But, according to Mark Ellis, these new standards are still vague
209
Report of the Group of Experts for Cambodia established pursuant to General Assem-
bly Resolution 52/135, UN Doc. A/53/850, annex, para. 67. However, the recommenda-
tion was not particularly welcomed. See Mundis, Improving the Operation, at p. 769.
210
Ojdanic (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Addi-
tional Funds, 13 November 2003.
211
Ninth Annual Report of the ICTR, UN Doc. A/59/183-S/2004/601, para. 69.
212
ICTR RPE, Rule 45(A). Discussed by Tolbert, The ICTYand Defence Counsel, at p. 980.
213
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 Interna-
tional, 2001, pp. 177185, at p. 179.
214
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 Interna-
tional Criminal Tribunal for Rwanda, UN Doc. A/54/634, paras. 209210.
215
Directive on the Assignment of Defence Counsel, Directive No. 1/94, art. 14(A)(iii).
and ineVectual in attracting the most qualied lawyers.
216
Another attempt to
regulate assigned counsel was not based on qualications but on geographic
origin. The concept is familiar to international organisations, like the United
Nations, where there are attempts at fair distribution of employment oppor-
tunities based on country and region of origin. But it is nonsense to apply it
to defence counsel, who are by denition 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 fee-
splitting. 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
216
Ellis, Evolution of Defence Counsel, p. 957.
217
Ibid., p. 981.
218
E.g., Akayesu (ICTR-96-4-A), Decision Relating to the Assignment of Counsel, 27 July
1999, p. 1.
219
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 Rwan-
dan 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 Yugosla-
via since 1991, UN Doc. A/56/836. See also: UN Doc. A/RES/55/250; UN Doc. A/RES/
56/278.
220
Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 185;
221
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.
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 specied by the
Chamber.
222
At the ICTYand ICTR, this is known as the amicus curiae.
223
The
SCSL RPE identify such participants in cases before the Court as interve-
nors.
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 denition of amicus curiae does not call for imparti-
ality on the part of the ling party. Rather it takes into consideration that such
briefs are led 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
ICTYs very rst proceeding, counsel for the Federal Republic of Germany and
counsel for Dusko 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 involve-
ment 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 com-
munity 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
ICTY RPE, Rule 74.
223
Herve Ascensio, Lamicus curiae devant les jurisdictions internationales, [2001] Revue
ge ne rale de droit international public 897.
224
SCSL RPE, Rule 74.
225
Bagosora (ICTR-96-7-T), Decision on the Amicus Curiae Application by the Govern-
ment of the Kingdom of Belgium, 6 June 1998.
226
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 Dusko 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.
227
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 conict 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 Furundzija
because of the Prosecutors 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 Interna-
tional Criminal Defence Attorneys Association, because their submissions
addressed principally the merits and deciencies of the legal aid system,
and because such submissions were not desirable for the proper determi-
nation 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
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.
229
230
Rajic (IT-95-12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of
Procedure and Evidence, 13 September 1996.
231
Bagosora et al. (ICTR-98-41-T), Decision on Amicus Curiae Request by the Rwandan
Government, 13 October 2004.
232
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 35; Furundzija (IT-95-
17/1-A), Judgment, 21 July 2000, para. 12.
233
E.g., Illias Bantekas, University of Westminster, on the basis of his extensive research on
the doctrine of command responsibility, in Hadz ihasanovic et al. (IT-01-47-PT), Deci-
sion on Joint Challenge to Jurisdiction, 12 November 2002.
234
Milutinovic et al. (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for
Additional Funds, 13 November 2003, para. 18.
235
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.
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 Milosevic 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 led a motion
challenging the jurisdiction of the Tribunal.
238
They remained active through-
out the trial until events took a diVerent turn, and the Trial Chamber deci-
ded 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
conict 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
236
Simic et al. (IT-95-9-PT), Decision Denying Request for Assistance in Securing Docu-
ments and Witnesses from the International Committee of the Red Cross, 7 June 2000.
237
Milos evic (IT-99-37-PT), Order Inviting Designation of Amicus Curiae, 30 August 2001.
238
Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001.
239
Decision on the Assignment of Defence Counsel, 1 November 2004. On the distinction
between standby counsel and an amicus curiae, see: S
es elj (IT-03-67-PT), Decision on

Prosecutions Motion for Order Appointing Counsel to Assist Vojislav S
eselj with his

Defence, 9 May 2003, para. 29.
240
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 condential contempt case which is pending before it.
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 conict 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 nanced 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
signicant 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 con-
troversy 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
nancing.
244
The controversy inuenced 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 rst part of
the 1990s, a grave nancial crisis provoked by a near-default of the United
States in payment of its dues, the General Assembly initially provided the
241
R v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2),
[1999] 1 All ER 577 (HL).
242
See, e.g., Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, paras. 167171, 194195,
206207, 213214.
243
244
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.
245
ICTR Statute, art. 30.
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 reection
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 con-
tributions 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 organi-
sations, which are often funded by bodies like the European Union. Others
who have assisted the tribunals include universities and even private cor-
porations, such as IBM.
249
Though very important in the rst years of opera-
tion, as the overall budget has grown the actual proportion attributable to
voluntary contributions has declined signicantly.
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 Courts 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 nancial
responsibility and accountability. But it makes the institutions vulnerable to
inappropriate inuences 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
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. 934938.
247
UN Doc. G/RES/47/235.
248
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.
249
250
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INDEX
Abi-Saab, Georges, 233, 242
abuse of process, 539542
academic writings as source of tribunal
law, 107, 112
accountability, individual. See
individual accountability
accused
appeal, right of, 438439
detention of. See detention of
accused
immunity from national criminal
jurisdiction, 433
joinder of, 368371
prejudice, cumulative convictions
causing, 434
rights of, 501503
abuse of process, protection from,
539542
appeal, 438439, 533535
case les, access to, 515
charge, right to be informed of,
519520
counsel, right to, 171, 523531
equality before the law, 511513
equality of arms, 513514
habeas corpus, 539
independent and impartial tribunal
and judges, 501503
international human rights
mechanisms, access to,
542544
interpreter, right to, 531532, 592
like cases treated alike, 438
presence at trial, 419422, 523
presumption of innocence,
516519
public hearing, 514516
self-representation, 528531
silence, right of, 391, 419, 429,
532533
speedy trial, right to, 414, 521523
wrongful prosecution, redress for,
537539
statement at trial, 428
suspects vs., 358
actus reus (physical element of crimes),
292296
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 specic articles
Additional Protocol I
adoption of, 228
applicable conicts, 242
civilians, dened, 249
equality before the law in, 511
grave breaches provisions, 228, 241
war crimes, 275282, 285
Additional Protocol II
adoption of, 232235
crimes against humanity, 211
ICTR and SCSL Statutes covering
serious violations of, 269
legality and legitimacy of tribunals,
61, 66
war crimes, 275282, 285
customary international law, as
codication of, 98, 99
grave breaches provisions, 228, 241
norms, process of development and
acceptance of, 98
war crimes, 275282, 285
678
adequate counsel, right to, 171,
523531
administration of tribunals. See
structure and organisation of
tribunals
admissibility of evidence, 453467
adversarial vs. inquisitorial law. See
civil, common and other law
jurisdictions, joint use of
traditions of
afdavits, 477
age of offender as mitigating
factor, 576
agency test, 243245
aggravating and mitigating
circumstances, 566
Agius, Carmel, 417
aiding and abetting
as general principle of law,
302309
genocide, 184
Akayesu, Jean-Paul, 150, 211, 239,
454455, 581. See also Table
of cases
Akhavan, Payam, 232
Albright, Madeleine K., 20
Aleksovski, Zlatko, 536. See also Table
of cases
alibi, as defence, 339341
alternate judges at SCSL, 596
Amega, Atsu-Kof, 27
amendment of indictments, 371374
American Bar Association, 410, 418,
422, 570
amici curiae or intervenors, 411,
619622
amnesty
as defence, 337339
SCSL and, 34, 3536, 37, 337339
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
traditions of
Annan, Ko, 609
anonymous testimony, 474, 503
apartheid as crime against
humanity, 194
appeal and Appeals Chambers, 439443
detention of accused prior to
appeal, 433
disposition, 412, 432433, 448449
essentially common chamber for
ICTR and ICTY, 109
fact, errors of, 445446
interlocutory appeals, 441, 534
jurisdiction, 441
law, errors of, 229, 444445
new evidence admitted on appeal,
447, 483484
Notice of Appeal, 443
Pre-Appeal Judge or Pre-Hearing
Judge, 443, 451
procedure on appeal, 443444
review heard by Appeals Chamber,
450451
right of appeal, 438439, 533535
RPE, non-compliance with, 447
rulings on grounds other than those
advanced by appellant,
446447
self-review, 448
standard of review, 444448
structure and organisation of
tribunals, 590
appearance, initial, 388389
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 conict
crimes against humanity requiring
presence of, 187189, 194
international crimes not necessarily
tied to, 152
law of war, concept of, 226, 228
war crimes and. See war crimes
arrests, 377383
Askin, Kelly, 497
Association of Defence Counsel of the
ICTY, 614615
I N D E X 679
attack not same as armed conict for
purposes of crimes against
humanity, 194
attorneys. See counsel
audi alteram partem, as general
principle of law, 106
Australia, legacy and inuence of
tribunals in, 46
Austria, service of tribunal sentences in,
579, 580, 582
aut dedere aut judicare, 158
authoritative information allowed as
evidence, 477479
Babic, Milan, 427. See also Table of
cases
Badinter, Robert, 13, 124
Bagilishema, Ignace, 433, 543. See also
Table of cases
Bagosora, Theoneste, 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
ratication 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, disqualication of judges
on grounds of, 415,
416419
biological experimentation, as war
crime, 251
biological or chemical weapons, 261
birth, genocidal measures preventing,
177178
Bizimungu, Pasteur, 27
Blaskic, 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
of, 21
on temporal jurisdiction
of ICTY, 133
budget for tribunals, 6, 32, 39, 41, 352,
493, 622623
burden of proof, 463467
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
of, 21
legacy and inuence of tribunals
in, 45
capital punishment, exclusion of, 546
680 I N D E X
Cardenas (Argentine UN
representative), 26
Carnegie Foundation, 9, 259
Carrington, Lord, 14
case les, access to, 515
Cassese, Antonio, 67, 74, 86, 102,
105, 118, 120, 190, 291,
332, 349, 380, 517
Chambers, 593594
Bureau, 599
judges of. See judges
Management Committee, 599
ofcers and members, 598600
Presidents, 593, 594, 598599
character, evidence of, 499
charge
initial appearance, charge and entry
of plea, 388389
right to be informed of, 519520
Charter of the International
Military Tribunal (1945).
See also Table of legislative
provisions for citation of
specic 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 specically 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,
140142, 279285
personal jurisdiction over juvenile
offenders, 140142
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
circumstances, 566
individual circumstances of
convicted person, 563
cities and towns
undefended, attacks on, 262
wanton destruction as war crime,
209, 261262
citizenship and personal jurisdiction,
142144
traditions of
evidentiary matters, prominence
of common law practice
in, 348
general principles of law, 291
hearsay evidence, 479
in OTP, 601
procedural issues, 348350
rights of accused, 536
sentencing practice, 552
trial and post-trial procedure, 410
civilian populations
crimes against humanity directed
against, 189191
hostage taking as war crime, 253
imprisonment of
as crime against humanity, 205
as war crime, 253254
military necessity as defence to
attacks on, 345347
I N D E X 681
civilian populations (cont.)
war crimes, attacks on as
grave breaches of Geneva
Conventions, 248249
international humanitarian law,
other serious violations of,
282283
Clinton, Bill, 19, 20
co-perpetrators, 308
Cold Wars 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
537539
competence, 123. See also jurisdiction
la competence de la competence
(Kompetenz-Kompetenz), 50, 92
completion strategy
initial and evolving plans for, 6, 24,
4043
OTP and, 606
rights of accused and, 544
trial and post-trial procedure,
414, 451
complicity
aiding and abetting, 302309
in genocide, 178179, 183,
305, 324
concurrent jurisdiction with national
courts,
deferral requests, 383386, 550
primacy in, 123, 129, 132
concurrent sentences, 551
conditional release, 582
conduct of counsel, 613618
Conference for Security and
Cooperation in Europe (CSCE)
capital punishment, opposition
to, 547
15, 21
conferences
Pre-Defence Conference, 406
Pre-Trial Conference, 406
Status Conference, 405
connement. See entries at detention;
imprisonment
consecutive sentences, 551
consent
as defence, 341343
rape and sexual assault evidence,
497498
conspiracy, genocidal, 179181
Constitution of Sierra Leone, 57
contempt, subject-matter jurisdiction
over, 152
continuing crimes, jurisdiction
over, 125
Convention for the Prevention and
Genocide, 1948 (Genocide
Convention). See also Table of
tribunals, 3, 12, 18, 26, 381
ratication by Rwanda, 156
subject-matter jurisdiction of
tribunals over crimes of
genocide and, 168, 169, 176,
179, 181
travaux preparatoires 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,
484485, 497
Council of Europe, 43
682 I N D E X
counsel
free legal assistance, 525527,
613618
lawyer-client privilege, 493495
professional and ethical standards,
613618
Registry units for defence counsel,
613618
right to, 171, 523531
Crane, David, 603
Crawford, James, 348
creation and establishment of ICC, 7,
3132, 327
creation and establishment of tribunals,
39, 86
historical background to
international prosecution
and, 911
ICTR, 4, 2431, 73
ICTY, 3, 1324, 224, 354
principles behind, 89
SCSL, 5
Tokyo tribunal, 3, 10
crimes against humanity, 185, 187
apartheid as, 194
armed conict, requirement of
presence of, 187189, 194
attack not same as armed conict for
purposes of, 194
civilian population, directed against,
189191
dened, 185
discriminatory intent or motive,
196198
enslavement as, 201203
extermination as, 199201
forced transfers, 203205
genocide and, 185
hierarchy of genocide, war crimes
and crimes against humanity,
tribunal rejection of, 561
imprisonment of civilians as, 205
as international crime, 154155
international humanitarian law and,
10, 116, 186
knowledge required for, 194195
military necessity as defence to, 347
military personnel as victims of,
190, 191
motives for, 195, 196
murder as, 198199
national prosecutions for, 195
other inhumane acts, 222225
overlap with war crimes and
genocide, 434438
peace, committed in times of, 152
persecutions as, 215222, 223
for personal motives, 195
pregnancy, forced, 214
prostitution, enforced, 213214
punishable acts, 198
rape as, 186, 209211
sexual slavery, 212213
sexual violence as, 211215
States committing, 42,
189, 193
torture as, 205209
in tribunal statutes, 151
widespread or systematic attack
requirement, 191196
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,
118119
criminal tribunals. See tribunals
Croatia, 29, 130, 133, 387, 411, 486,
579. See also International
former Yugoslavia
cruel treatment, as war crime, 214,
270271
CSCE. See Conference for Security and
Cooperation in Europe
cultural property, destruction or
wilful damage as war crime,
262264
cumulative convictions, 434438, 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, 8384
I N D E X 683
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, 325326
alibi, 339341
consent, 341343
duress, 120, 331332
excuses vs. justications, 325
immunity for ofcial positions and
heads of State, 327329
intoxication, voluntary, 334335
mental incapacity or insanity, 95,
332334
military necessity, 222, 345347
mistake, 337
mitigating factors, grounds of
defence as, 577
necessity, 332
Registry units for defence counsel,
613618
reprisal, 344345
self-defence, 335337
special, 326
superior orders, 329331
tu quoque, 339, 454
deferral requests in concurrent
jurisdiction with national
courts, 383386, 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, 476477
Descamps, Baron, 104
detention. See also entries at
imprisonment
detention camps
genocide, deliberate iniction of
living conditions likely to
destroy group as, 176177
detention of accused
after acquittal and before appeal, 433
mechanisms, access to,
542544
pre-trial, 377383, 389395
Registry responsibility for detention
units, 609611
speedy trial, right to, 414, 521523
detention of suspects, 504505
deterrence
as objective of tribunals, 69
as purpose of sentencing, 554
Dieng, Habi, 27
dignity, outrages upon, 272273
disclosure of evidence, pre-trial,
398403
discriminatory intent or motive
crimes against humanity generally,
196198
as general principle of law, 295
persecution, 216, 219, 513
dismissal, motion for, 430432
dismissal or removal of judges,
509510, 534
displacement. See forced transfer or
displacement
disposition of appeals, 412, 432433,
448449
disqualication or recusal of judges,
415, 416419, 510
distinction, principle of, 283, 346
documentary evidence, 482
Dokmanovic, Slavko, 365, 381. See also
Table of cases
dolus specialis. See special/specic
intent or dolus specialis
Dormann, Knut, 249
double jeopardy (ne or non bis in idem)
accused, rights of, 535537
cumulative convictions,
434438, 551
jurisdictional issues, 127128
684 I N D E X
Drajic, Novislav, 125
Drumbl, Mark, 426
drunkenness as defence, 334335
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
in, 44
proposal to establish tribunal for, 33
Ecuador, service of tribunal sentences
in, 579
eVective control test, 243245
Eijskens, Mark, 12
enforced acts. See entries at forced
enforcement of sentence, 578
enslavement and forced labour
consent as defence to, 343
of prisoners of war, 274
as war crime, 99, 100, 105, 274,
281282, 290, 401
white slavery or trafcking in
persons, 154
entry of plea, 388389
equality before the law, 511513
Erdemovic, Drazen, 331, 385, 396,
424425, 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, 613618
ethnic cleansing
Albrights condemnation of, 20
as cultural vs. physical genocide, 166
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
accuseds access to, 542, 543, 544
on anonymous testimony, 474
tribunals, 33, 46
on detention of accused persons, 394
on disclosure of evidence, 398
on disqualication of judges,
103, 419
on tness to stand trial, 396
free legal assistance and right to
choose counsel, 525
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, 452453. See also witnesses
and testimony
admissibility issues, 453467
afdavits, 477
appeal, new evidence admitted on,
447, 483484
authoritative information as,
477479
balance of probabilities
standard, 465
best evidence rule, 458
burden of proof beyond reasonable
doubt, 463467
compelling production of, 77,
467470, 485488
I N D E X 685
evidence (cont.)
corroboration of, 484485, 497
depositions, 476477
documentary, 482
exclusion of, 459460
general authority of judges in
case of lacunae in RPE,
460463
of good character, 499
hearsay, 455, 459, 479480
judicial notice of facts of common
knowledge, 488493
national security concerns, 485488
from other cases, 477479
polygraphs, 457
pre-trial disclosure, 398403
probity of, 453459
of rape and sexual assault, 496499
relevance of, 453459
reliability of, 456457
review on new facts, 450, 483484
RPE. See Rules of Procedure and
Evidence
similar fact evidence (pattern of
conduct), 499500
subpoenas, 468469
types of, 470
excuses vs. justications, 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
living conditions likely to destroy
group as genocide, 176177
extradition (surrender and transfer),
357, 379, 386388
facts
appeals on errors of, 445446
knowledge, 488493
review of new, 450
at justitia arguments for international
tribunals, 68
Filaret of Milesevo, Bishop, 611
nancing of tribunals, 6, 32,
39, 41, 352, 493,
622623
Finland, service of tribunal sentences
in, 579, 580, 582
tness to stand trial, 163, 395397
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, 213214
forced sterilisation, 211, 214, 270271
forced transfer or displacement
as genocide, 166, 167, 178
military necessity as defence
to, 347, 388
other inhumane acts encompassing,
3, 224, 354
persecution entailing, 136, 218
former Yugoslavia. See International
former Yugoslavia
France
international tribunal in, 32
to, 547
crimes against humanity against
civilian populations,
military personnel included
in, 191
13, 14, 17, 20, 21, 124
service of tribunal sentences in,
579, 580, 582
on temporal jurisdiction of
tribunals, 134
686 I N D E X
free legal assistance, right to, 525527,
613618
funding of tribunals, 6, 32, 39, 41, 352,
493, 622623
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, 289292
jurisdictions, 291
defences. See defences
as to genocide, 105, 281282, 290
individual accountability, 289
mental and physical elements (mens
rea and actus reus), 292296
participation. See participation, as
general principle of law
as sources of tribunal law, 102107
Geneva Conventions. See also Table of
1949 Conventions generally
grave breaches provisions, 77, 158,
203, 205, 222, 240243,
290, 467470
international armed conict,
existence of, 243246
legality and legitimacy of
tribunals, 65
occupation, 255
protected status under, 246248
on rights of accused, 501
as sources of law, 93, 98, 99
war crimes, 228, 232233,
240243, 258, 265274,
368. See also war crimes
Additional Protocols I and II. See
Additional Protocols to the
Geneva Conventions
genocide, 161, 164
birth, measures preventing, 177178
children, forcible transfer of, 178
complicity in, 178179, 183,
305, 324
conspiracy to commit, 179181
Convention of 1948. See Table of
crimes against humanity and, 185
dened, 163
destruction of group in whole or in
part, 169171
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, 168169
hierarchy of genocide, war crimes
and crimes against humanity,
tribunal rejection of, 561
inchoate offences, 178179
incitement to commit, 181183
as international crime, 2431, 73,
154155, 163,
international humanitarian
law and, 116
killing as, 164, 172174
knowledge and intent required
for, 167
group, deliberate iniction
of, 176177
motive requirements, 172
not properly characterised as war
crime, 152
origins of term, 163, 395397
overlap with war crimes and
crimes against humanity,
434438
persecution as crime against
humanity compared, 218
physical vs. cultural, 165, 167
plan to commit, 171, 523531
punishable acts of, 172, 237
rape and sexual violence as
birth, measures preventing, 177
group, deliberate iniction
of, 177
serious bodily or mental harm, 34,
174175
I N D E X 687
genocide (cont.)
reluctance to use term, 2526, 161
in Rwanda, 161, 162, 163,
172, 178, 179183,
296, 324
serious bodily or mental harm as,
174176
special intent or dolus specialis, 164,
171, 320
State involvement in, 171
universal jurisdiction over, 157
Genocide Convention. See Convention
for the Prevention and
Genocide and Table of
Genscher, Hans Dietrich, 12
Germany
of, 14
polygraphs, case law as to,
324, 457
primacy in concurrent jurisdiction,
124, 125, 289, 523
579, 580
Ghanas refusal to arrest Charles Taylor,
5960, 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
Gotovina, Ante, 24, 387
gravity of crime, as sentencing
factor, 563
Greenwood, Christopher, 519
groups, targeted
genocide, 168169
persecution as crime against
humanity, 219
guilty pleas, 423428, 573
Gulf War, Iraqi tribunal proposed in
wake of, 11
habeas corpus
as customary law, 97
rights of accused, 539
Habyarimana, Juvenal, 25, 134, 490, 548
Hague Conventions. See also Table of
fourth Convention of 1907
Regulations annexed to, 9, 255,
258260, 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, 255258
harm, serious. See serious bodily or
mental harm
Haskic, Midhat, 457
hate speech
as incitement to commit genocide,
181183
persecutions and, 217
heads of State
immunity
as defence, 327329
international crimes relaxing rules
of, 158160
tribunals power to order arrest of,
5960
tribunals power to prosecute, 57
hearsay evidence, 455, 459, 479480
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
688 I N D E X
access of accused to international
human rights mechanisms,
542544
accused, rights of. See accused
appeal, right to, 438439, 533535
crimes against humanity and
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,
116118
subject-matter jurisdiction over
violations of international
humanitarian law, 153
suspects, 358, 503505
trial before regular domestic criminal
tribunal, 128
violation of laws or customs of
war in breach of
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,
56, 64, 154, 564
legacy and inuence of international
criminal tribunals on, 44
SCSL as, 6, 37, 54, 132
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, 327329
international crimes relaxing rules of,
158160
Milosevics supposed receipt of de
facto, 351
pre-trial grant of, 409
impartiality
accuseds right to, 505511
disqualication of judges on
grounds of possibility of, 415,
416419
implied or inherent powers of
tribunals, 112116
imprisonment. See also entries at
detention
imprisonment as tribunal sentence
life sentences, 549
place of service, 578
Registry responsibility for detention
units, 609611
terms imposed, 549
visitors, 611
imprisonment of civilian populations
impunity, end of, as objective of
tribunals, 73
in absentia tribunal trials, 382,
419422, 523
in camera trial sessions, 423,
514516
in dubio pro reo, as general principle of
law, 106
inchoate offences
genocidal, 178179
I N D E X 689
incitement or instigation
genocidal, 181183
hate speech as persecution, 217
ordering related to, 301302
independence
of OTP, 603
of tribunal, 505511
indictments, 350, 359362, 563
amendment of, 371374
basis for liability stated in, 362
issuance of, 363366
joinder of accused, 368371
joinder of crimes, 366368
sealed or secret, 365366
withdrawal of, 375377
individual accountability
collective vs. individual guilt,
70, 71
as general principle of law in tribunal
statutes, 289
for violations of laws or customs of
war, 256
individual circumstances of convicted
person, as sentencing
factor, 563
Indonesia and East Timor conict. See
East Timor
inherent or implied powers of
tribunals, 112116
inhuman treatment, as war crime, 190,
206, 250, 270, 272
initial appearance, charge and entry of
plea, 388389
injury, serious. See serious bodily or
mental harm
innocence, presumption of, 516519
inquisitorial vs. adversarial law
insanity or mental incapacity, as
defence, 95, 332334
instigating. See incitement or
instigation
intent
discriminatory. See discriminatory
intent or motive
dolus specialis. See special/specic
intent or dolus specialis
genocide, 167
mens rea (mental element of crimes),
293295
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
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
conict in Nicaragua case,
243245
heads of State, tribunals power to
prosecute, 57
hierarchy of tribunals and, 111
of, 19
on immunities, 328329
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
690 I N D E X
International Covenant on Civil and
Political Rights (1966). See also
Table of legislative provisions
for citation of specic articles
legitimacy and legality of
tribunals, 61
procedural guarantees in, 350
99, 101
international crimes
genocide as, 2431, 73,
154155, 163
mens rea, 294
subject-matter jurisdiction over,
152160
International Criminal Court (ICC).
See also Rome Statute of the
as alternative to ad hoc tribunals,
3132, 327
creation and establishment of, 7,
3132, 327
juvenile offenders, jurisdiction
over, 140
in, 44
location or seat, 588
natural persons, jurisdiction
restricted to, 139
post-Cold War revival of concept
of, 1113
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
Cold Wars interference with
course of, 11
dened, 78
furtherance as objective of
tribunals, 73
historical background, 911
human rights law and, 8, 67
in, 44
post-Cold War revival of concept
of, 1113
scope of, 23
UN agenda, as part of, 39, 86
Rwanda (ICTR), and Statute.
See also Table of legislative
provisions for citation of specic
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, 108110
on compelling production of
evidence, 429, 467
completion strategy, 6, 40, 42, 43,
189
complicity in genocide, 183
on consent, as defence, 341343
conspiracy to commit genocide,
179181
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,
281282, 290, 293,
296297, 298, 318
genocide, 161, 162, 163, 172, 178,
179183, 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, 130131, 139,
140, 151
legacy and inuence of, 4446
legality and legitimacy of, 48, 50, 52,
53, 61, 64
national law as source, 74
I N D E X 691
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, 138139
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
public trial, exceptions to, 514, 558
retroactivity, 61, 64, 65, 66
RPE of, 8489, 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,
7884, 89
structure and organisation, 109,
588, 590, 593594, 595,
601, 603, 609
subject-matter jurisdiction, 151
temporal jurisdiction, 134,
289292
territorial jurisdiction, 130131
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 specic articles
of the Statute
appeals, 440, 441
budget for, 622
common legal norms with ICTR and
SCSL, 108110
evidence, 429, 467
completion strategy, 6, 24, 40,
4142, 43
complicity in genocide, 183
concurrent jurisdiction, 383
counsel, right to, 523, 525
creation and establishment
of, 4, 22, 23, 2431, 40,
41, 73
crimes against humanity, 186189,
191, 215, 219
Detention Unit, 609
equality before the law, right
to, 228, 511
general principles of law for, 105,
281282, 289, 290, 298,
318, 325
genocide, 161, 163, 172, 178, 181,
183, 296, 324
grave breaches of Geneva
Conventions, 240243
to, 539
history of country and its
breakup, 13
ICTR, as model for, 4
internal vs. international avour of
conict, 7
international armed conict,
existence of, 243246
intoxication (voluntary) as
defence, 334
joint criminal enterprise, 309314
judges, impartiality and
independence of, 507
jurisdiction, 123, 127, 131,
139, 140, 151
legitimacy and legality of, 4853,
69, 105
692 I N D E X
law used for, 119
persecution, 215, 219
pre-trial procedure, 398, 263,
350, 351355, 379, 404,
407, 409, 696
public trial, exceptions to, 514, 558
retroactivity (nullum crimen sine
lege), 6367, 187
on rights of accused, 502, 505
RPE of, 8489, 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, 7884, 8788
structure and organisation, 109,
588, 590, 593594, 595,
601603
subject-matter jurisdiction, 151
temporal jurisdiction, 132
territorial jurisdiction, 130, 131
timeline of conict, 133
war crimes, 67, 232236, 240243,
249, 255269
international criminal tribunals. See
tribunals
international humanitarian law. See
human rights law
international law. See also customary
international law
denition of international crimes
under, 154
origins of term, 77
universal jurisdiction under,
126, 128
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
intervenors or amici curiae, 411,
619622
intoxication as defence, 334335
investigations, 350, 563
conduct of, 355358
identication of suspects and
accused, 351355
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, 1113
Islamic Conference, 21, 547
Italy
capital punishment, opposition to,
513, 547
of, 21
Italian-Venezuelan Mixed Claims
Commission, 104
579, 580, 582
Supreme Military Tribunal of, 153
Ivanov, Igor, 365
I N D E X 693
Jallow, Hassan Bubacar, 593, 603
JCE. See joint criminal enterprise
joinder
of accused, 368371
of crimes, 366368
joint criminal enterprise (JCE)
common treatment of, 109
development of concept of, 24
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
accuseds right to independence and
impartiality of, 505511
ad litem, 508, 594, 595, 596
alternate judges at SCSL, 596
dismissal or removal,
509510, 534
disqualication or recusal, 415,
416419, 510
duty judges, 596
organisation and structure of
Chambers and, 593594
Judge, 443, 451
Pre-Trial Judge, 406
privileges of judicial
deliberations, 496
remuneration of, 226, 509
replacement or trial de novo,
412416
term of ofce, 508509
trials, composition of bench at,
412419
witnesses called by, 429
judgment or verdict, 412, 432433,
448449
judicial decisions as source of law,
107112
knowledge, 488493
jura novit curia, 446447
jurisdiction, 123
Appeals Chambers, 441
civil, common or other types. See
traditions of
concurrent jurisdiction with
national courts
primacy in, 123, 129, 132
over continuing crimes, 125
crimes against humanity
requiring presence of
armed conict for
purposes of, 188
crimes committed against tribunals
themselves, 132
dened, 123
double jeopardy (ne or non bis in
idem), 127128
eVects, 131
international crimes, jurisdictional
consequences of,
156158
personal. See personal jurisdiction
over property, 148150
ratione materiae. See subject-matter
jurisdiction
right to be tried before regular
domestic criminal
tribunal, 128
subject-matter. See subject-matter
jurisdiction
temporal, 132138
territorial, 129132
treaty-based establishment of SCSL
and, 57
universal, 126, 128, 154, 157
violations of common
article 3 of Geneva
Conventions, 266
jus cogens norms, 101102
jus gentium (law of nations),
international law replacing
as term, 77
justice, as objective of tribunals, 69
justications vs. excuses, 325. See also
defences
juveniles. See children
694 I N D E X
Kabbah, Ahmed Tejan, 3536,
146, 279
Kabuga, Felicien, 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, La ty, 412, 511
Kambanda, Jean, 327, 425,
426, 581. See also
Table of cases
Kanyabishi, Joseph, 173, 385. See also
Table of cases
Karadzic, Radovan, 19, 20, 24, 64, 69,
385, 470, 519, 604. See also
Table of cases
Karamans 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, 198199
as genocide, 164, 172174
mens rea (mental element of
crimes), 293294
as war crime. See war crimes
King, George, 417
Kinkel, Klaus, 14
Klarin, Mirko, 13
Kolundzija, Dragan, 116. See also
Table of cases
Kompetenz-Kompetenz (la competence
de la competence), 50, 92
Kosovo. See also International
Criminal Tribunal
for the former
Yugoslavia
presence of armed conict,
189, 374
executive mission in, 5
investigations, 351
in, 44
peace and security, limited ability of
tribunals to impose, 69
war crimes requiring presence of
armed conict, 231
Kovacevic, Vladimir, 396. See also
Table of cases
Kovanda, Karol, 26
Kunarac, Dragoljub, 580. See also Table
of cases
Kupreskic, 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
Kvocka, 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
ofcial languages of tribunals, 590
witnesses and testimony, 593
Lansing, Robert, 62
Lauterpacht, Hersch, 226
law
appeals on errors of, 229,
444445
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,
255258, 275282, 285
I N D E X 695
lawyers. See counsel
Lawyers Committee for Human
Rights, 22
League of Nations, 10, 186
4748
authority of tribunal to examine its
own status, 50
consent of States involved, 53
constitutional challenges to, 57
objectives as related to, 67
retroactivity, 6067
third States, rights of, 5657, 5960
treaty-based courts, 5360
UN Security Councils power to
create tribunals by resolution,
4853, 5556, 5960
Lemkin, Raphael, 163, 395397
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
group, deliberate iniction of,
176177
location
of service of sentence, 578
of tribunals, 588, 594
Luxembourg and proposal for Iraqi
tribunal, 12
Macedonia, 130. See also
International Criminal
Yugoslavia
major war criminals, jurisdiction
restricted to, 38, 145148
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, 598600
mens rea (mental element of crimes),
292296
mental element of crimes (mens rea),
292296
mental tness to stand trial, 163,
395397
mental harm, serious. See serious
bodily or mental harm
mental incapacity or insanity, as
defence, 95, 332334
Merimee, Jean-Bernard, 20
Meron, Theodor, 21, 22, 232, 569, 582
Mexico and creation and establishment
of ICTY, 21
military necessity
as defence, 222, 345347
persecution and, 222
wanton destruction of cities and
towns not required by, 209,
261262
military service
child soldiers, 140142, 279285
crimes against humanity, soldiers as
victims of, 190, 191
forced service as war crime, 205
Milosevic, Slobodan, 19, 20, 24, 149,
327, 349, 351, 364, 386, 397,
471, 528530, 531, 542, 543,
cases
Milutinovic, Milan, 3132, 327. See also
Table of cases
minors. See children
mistake, as defence, 337
mitigating and aggravating
circumstances, 566
Mitterand, Francois, 14
696 I N D E X
mixed or hybrid courts or tribunals,
56, 64, 154, 564
legacy and inuence of international
criminal tribunals on, 44
SCSL as, 6, 37, 54, 132
Mladic, Ratko, 19, 24, 64, 69, 347, 385,
388, 470, 519, 604
MNaghten rules, 333
Moore, Judge, 154
Moreno Ocampo, Luis, 602
Moscow Declaration, 8, 10
Moscow Human Dimension
Mechanism of CSCE, 15
Mse, Erik, 378
motive
discriminatory. See discriminatory
intent or motive
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
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
defence, 165, 332
primacy in concurrent jurisdiction
over, 123, 129, 132
referral to, 407409
right to be tried before regular
domestic criminal
tribunal, 128
SCSLs subject-matter jurisdiction
over crimes under Sierra
Leone law, 152
sentencing, 552
service of sentence under, 580
118119
trial before regular domestic criminal
tribunal, right to, 128
national security concerns and
production of evidence,
485488
nationality and personal jurisdiction,
142144
nations, law of (jus gentium),
international law replacing as
term, 77
NATO
arrests by forces, 380, 605
presence of armed
conict, 189
investigations, 351
personal jurisdiction and nationality,
142, 242
war crimes requiring presence of
armed conict, 16, 231
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
to, 547
I N D E X 697
Netherlands (cont.)
of, 21
ICTY located in The Hague, 588
service of tribunal sentences in, 579
United Nations Detention Unit, 609
New Zealand
to, 548
27, 28, 147
Ngeze, Hassan, 182
NGOs (non-governmental
organisations) as third parties
in trial and post-trial
procedures, 411, 619622
Nicaragua, US involvement in
essentially internal conict in,
243245. See also Table of
cases
Nieto-Navia, Rafael, 51, 535, 536
Nigerias refusal to arrest Charles
Taylor, 5960
Nikolic, Dragan and Momir, 23, 72,
cases
non bis in idem. See double jeopardy
non-governmental organisations
(NGOs) as third parties in trial
and post-trial procedures, 411,
619622
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
189, 193, 203, 231
customary norms at, 98
evidentiary matters at, 452453, 464
tness to stand trial, 365, 395, 530
genocide used as term in, 163
on immunities, 158
mechanisms, access of
accused to, 544
Iraqi tribunal proposals invoking
precedent of, 11
joinder of accused, 369
knowledge, 488
legitimacy and legality issues, 47, 50
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
RPE, 86
sentencing, 545
superior orders, defence of, 330
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
Ofce of The Prosecutor (OTP),
600607
traditions of, 601
Deputy Prosecutors, 600
eld ofces, 600
698 I N D E X
ICTR, 109, 601, 603
ICTY, 109, 601603
initially shared by ICTR and ICTY,
109, 601, 603
privileges extended to prosecutorial
information, 495
prosecutorial strategies, 603606
pyramidal approach of, 604, 605
SCSL, 603
Truth and Reconciliation
Commissions and, 606
ofcers of Chambers, 598600
ofcial 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,
301302
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,
619622
OTP. See Ofce of The Prosecutor
Pakistan, service of tribunal sentences
in, 579
Pal, Judge, 84
pardons, 580, 582
parole, 582
participation, as general principle of
law, 296297
co-perpetrators, 308
commission, 298
complicity in genocide, 305, 324
instigating or inciting, 299301
joint criminal enterprise, 309314
ordering, 301302
planning, 298299
superior responsibility, 314324
parties at trial and post-trial
pattern of conduct (similar fact
evidence), 499500
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, 89
peacekeepers, attacks on, 284
Pellet, Alain, 13
law used for, 119
Perez de Cuellar, Javier, 12
perjury, subject-matter jurisdiction
over, 152
persecutions, as crime against
humanity, 215222, 223
Persian Gulf War, Iraqi tribunal
proposed in wake of, 11
over corporate bodies, 139
over juvenile offenders, 140142
nationality and citizenship,
142144
over property, 148150
seniority of criminals prosecuted, 38,
145148
persons most responsible, personal
jurisdiction restricted to, 38,
145148
physical element of crimes (actus reus),
292296
physical tness to stand trial, 163,
395397
physical harm, serious.
See serious bodily or
mental harm
pillage as war crime, 280, 285
planning as criminal participation,
298299
Plavsic, Biljana, 336, 565. See also Table
of cases
I N D E X 699
pleas
entry of, 388389
guilty pleas, 423428, 573
plea bargaining, 423428, 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, 438439
appeal. See appeal and Appeals
Chambers
review, 450451, 483484
RPE applicable to, 439
Powell, Colin, 387, 409
Judge, 443, 451
Pre-Defence Conference, 406
Pre-Trial Conference, 406
Pre-Trial Judge, 406
pre-trial procedure
arrests, 377383
conferences, 405407
detention or provisional release,
377383, 389395
disclosure of evidence, 398403
tness to stand trial, 163,
395397
immunity, grant of, 409
indictments. See indictments
initial appearance, charge, and entry
of plea, 388389
investigations. See investigations
preliminary motions, 403405
preparation for trial, 405407
referral to national courts,
407409
surrender and transfer (extradition),
357, 379, 386388
precedent, force of, 107112
pregnancy, forced, 214
prejudice to the accused,
cumulative convictions
causing, 434
preliminary motions, 403405
Presidents, 593, 594, 598599
presumptions
as to impartiality of judges, 416
as to innocence, 516519
as to mental capacity or sanity, 332
as to prior adjudication, 127
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, 493495
non-codied, 495496
prosecutorial information, 495
public policy basis for treatment of
issues of, 120
war correspondents, 495
procedural issues, 348350. See also
pre-trial procedure; trials
abuse of process, 539, 542
arrests, 377383
guilty pleas and plea-bargaining,
423428, 512
post-trial procedure, 438439
appeal. See appeal and Appeals
Chambers
review, 450451, 483484
RPE applicable to, 439
Evidence
professional and ethical standards for
counsel, 613618
property
cultural, destruction of or wilful
damage to, 262264
jurisdiction over, 148150
military necessity as defence to
destruction of, 345347
persecutions targeting, 110, 209,
218, 221
plunder of, 264265
return of property and
proceeds acquired by
criminal conduct as part of
sentencing, 551
war crimes involving. See war crimes
700 I N D E X
Prosecutor. See OYce of The
Prosecutor
prostitution, forced, 213214
protected persons, victims status as,
246248
protection of witnesses, 473474
provisional arrests, 377
provisional release, 389395
public nature of tribunal trials, 423,
514516
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, evidence regarding,
497498
corroboration of testimony
regarding, 497
as crime against humanity, 186,
209211
dened, 209
evidence regarding, 496499
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
reasonable doubt standard for burden
of proof, 463467
reconciliation
as principle of tribunals, 8
as purpose of sentencing, 49,
555, 561
recording of suspect
interrogations, 503
records as evidence, 482
recusal or disqualication of judges,
415, 416419, 510
Red Cross. See International
Committee of the Red Cross
referral of cases to national
courts, 407409
Registry, 607, 609
amici curiae or intervenors,
619622
defence counsel units, 613618
detention units, responsibility for,
609611
Registrar, 607608
victims and witnesses units,
611613
rehabilitation, as purpose of
sentencing, 559
release
after acquittal, 433
conditional or early, after sentencing
and service, 582
provisional, before trial, 389395
remand, detention or release on,
389395
removal or dismissal of judges,
509510, 534
rendition (surrender and transfer), 357,
379, 386388
reprisal, as defence, 344345
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
I N D E X 701
retroactivity (nullum crimen sine lege)
presence of armed
conict, 187
forced transfers not involving
national borders, fears
regarding prosecution of, 224
6067
sources of law, 83, 105
subject-matter jurisdiction, as
consequence of, 155156
review, 450451, 483484
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 Simoes, 242
Roling, B. V. A., 74, 84
Roman Law on deportation or forced
transfer, 204
Romano-Germanic vs.
Anglo-American law
Rome Statute of the International
Criminal Court. See also Table
of legislative provisions for
appeals, 440
creation and establishment of ICC, 7,
3132
crimes against humanity, 188, 193,
198, 199, 200, 201, 204, 212,
214, 215, 222, 224, 225
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
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
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, 341343
defences, 326, 341343
on evidentiary matters, 396, 452, 453
on national security
information, 487
post-trial proceedings, applicability
to, 439
with national courts, 126
procedural issues mainly contained
in, 348
property, jurisdiction over, 148150
rape, special rules of evidence
for, 210
sentencing, 546, 549, 552, 567, 568
on sexual assault/violence, 211
Russian Federation
international tribunal in, 32
to, 547
of, 21
702 I N D E X
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
Commission concept failing
to take hold in, 607
Tutsi, 24, 25, 34, 166, 168, 174175,
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, 365366
security
national security concerns and
production of evidence,
485488
objective of tribunals, peace and
security as, 24, 68
principle behind tribunals, peace and
security as, 89
self-defence, 335337
self-representation, accuseds right of,
528531
Semanza, Laurent, 543. See also Table
of cases
seniority of criminals prosecuted, 38,
145148
sentencing, 545
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, 432433,
448449
Serbia. See International Criminal
Yugoslavia
Serbia and Montenegro (Yugoslavia),
130, 387. See also International
former Yugoslavia
serious bodily or mental harm
as genocide, 174176
other inhumane acts
encompassing, 223
persecution entailing, 218
as war crime. See war crimes
Serushago, Omar, 581. See also Table of
cases
S
eselj, Vojislav, 417, 611. See also Table

of cases
sexual assault. See rape and sexual
assault
I N D E X 703
sexual oVences against children, Sierra
Leone law incorporated
into SCSL Statute regarding,
119, 152
sexual violence. See also rape and sexual
assault
amendment of indictment to
include charges of, 372,
374, 621
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
Commissions, 34, 36, 146,
220, 411, 478, 548,
549, 607
silence, right of
accused, 391, 419, 429, 532533
suspects, 504
Simic, Milan, 390. See also Table of
cases
similar fact evidence (pattern of
conduct), 499500
site visits, 590
slavery. See enslavement and forced
labour
S
ljivancanin, Veselin, 526. See also

Table of cases
Slovenia, 21, 130, 133, 579. See also
International Criminal
Yugoslavia
solemn declarations of witnesses, 471
sources of law, 7478
academic writings, 107, 112
customary international law, 8384,
97102
general principles, 102107
human rights law, 77, 95, 116118
inherent or implied powers of
tribunals, 112116
international law, 7478
jus cogens norms, 101102
national criminal law, 118119
national law, 74
penalty provisions, 119
precedent of other judicial decisions,
107112
public policy as, 120
retroactivity, 83, 105
RPE as, 76, 8489, 112116
statutes as, 76, 7884
subordinate or delegated legislation,
8991
treaties, 9196
South Africa, legacy and inuence of
tribunals in, 45
sovereign immunity, international
crimes relaxing rules of,
158160
Spain, service of tribunal sentences in,
579, 580, 582
Special Court for Sierra Leone (SCSL)
and Statute. See also Table of
citation of specic articles of
the Statute
amnesty issues, 34, 3536, 37,
337339
appeals, 85, 440, 441, 442
authoritative information as
evidence, 478
budget for, 6, 39, 41, 623
common legal norms with ICTR and
ICTY, 108110
evidence, 467
completion strategy, 40, 491
corporate bodies, personal
jurisdiction over, 139
counsel, right to, 523
creation and establishment
of, 5, 8, 3440
704 I N D E X
191, 211213, 214,
215, 219
Detention Unit, 610
equality before the law, right to,
228, 511
general principles of law, 290,
296297
genocide not included in Statute,
161, 162
government of Sierra Leone,
involvement of, 39
to, 539
history of country and its internal
strife, 34, 174175
hostage taking, 254
hybrid or mixed tribunal, as type of,
6, 37, 54, 132
judges, impartiality and
jurisdiction, 57, 123, 127, 139,
145146, 151
juvenile offenders, jurisdiction over,
140142
legitimacy and legality of, 5360, 64
mutilation as war crime, 270
peace, international crimes
committed in times of,
153, 424
law used for, 119
persecution, 215, 219
persons most responsible, aimed at
prosecution of, 38, 145146
pre-trial procedure, 263, 351, 352,
353, 354, 355, 383, 404
property, jurisdiction over, 148
retroactivity, 64, 65, 67
RPE of, 8489
sentencing, 546, 548, 549, 552, 578
sexual violence, 211213, 214
slavery, failure of Statute to
address, 281
sources of tribunal law, 74, 7884,
108, 119
sovereign immunity and, 159160
structure and organisation, 589, 591,
593594, 595, 596, 603
subject-matter jurisdiction, 151, 152
third States, rights of, 5657, 5960
timeline of conict, 135
UN Security Council resolution,
legitimacy derived in part
from, 5556, 5960
war crimes, 254, 266, 269, 275, 276,
278, 282, 285
special defences, 326
special/specic intent or dolus specialis
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,
444448
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
189, 193
crimes committed by, 155
enforcement of sentence in national
prisons of, 578
evidence, compelling production of,
77, 467470
I N D E X 705
States. See also heads of State; national
courts and criminal laws;
(cont.)
genocide, involvement in, 171
international crimes, duties
involving, 158
investigative dependence of tribunals
on, 356
as third parties in trial and post-trial
Status Conference, 405
statutes generally. See also Table of
RPE and, 86, 8788
Stephen, Chris, 19
Stephen, Ninian, 291, 332, 398,
474, 524
sterilisation, forced, 211, 214, 270271
Stone, Norman, 13
strict liability and superior
responsibility, 320
structure and organisation of tribunals,
587588. See also Chambers;
Judges; Ofce of The
Prosecutor; Registry
budget and nancing, 6, 32, 39, 41,
352, 493, 622623
ofcial languages, 590
Strugar, Pavle, 317, 396. See also Table
of cases
subject-matter jurisdiction, 151152.
See also crimes against
humanity; genocide; war
crimes
consequences of, 155160
contempt, 152
cumulative convictions, 434438
over international crimes, 152160
national laws, crimes under, 152
nature of crimes covered by,
152160
perjury, 152
over universally condemned
oVences, 151, 155
subpoenas, 468469
Sudan and Darfur Commission
crimes against humanity, denition
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,
329331
superior responsibility, as general
surrender and transfer (extradition),
357, 379, 386388
Susak, Gojko, 486
Susica camp, 211
suspects
accused distinguished from, 358
detention of, 504505
rights of, 358, 503505
Swaziland, service of tribunal sentences
in, 580
Sweden, service of tribunal
sentences in, 579, 580, 582
Switzerland
in, 45
service of tribunal sentences in, 580
systematic or widespread attack
requirement for crimes against
humanity, 191196
Tadic, Dusko, 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, 5960, 160,
199, 328, 357, 366
706 I N D E X
teachings, academic, as source of law,
107, 112
territorial jurisdiction, 129132
terrorism as war crime, 280281
testimony. See evidence; witnesses and
testimony
Thatcher, Margaret, 11
third parties in trial and
post trial procedures, 411,
619622
ICC territorial jurisdiction and, 132
treaties, tribunals established
by, 5657, 5960
Thompson, Bankole, 364
threats to violate common article 3 of
Geneva Conventions as war
crimes, 274, 621
Thune, Gro Hillestad, 15
Timor lEste. See East Timor
Tisdall, Simon, 19
Tito, death of, 13
Tokyo tribunal
capital punishment, 546
creation and establishment of, 3, 10
legitimacy and legality questioned by
defendants, 47
multinational rather than
international nature of, 7
retributive premise of, 8
sentencing, 545
UN not involved in, 3
Tolbert, David, 524, 614
torture
as crime against humanity,
205209
dened, 205
rape as, 208
as serious bodily or mental
harm constituting genocide,
174176
as war crime, 250
totality principle in sentencing, 551
towns and cities
wanton destruction as war crime,
209, 261262
trafcking in persons (white slavery),
154. See also enslavement and
forced labour
transfers of accused (extradition), 357,
379, 386388
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, 9196
tribunals created by, 5360
violation of laws or customs of war
in breach of, 256
trial, 410412
accused
rights of. See accused
statement of, 428
conduct of, 428429
cumulative convictions, 434438
dismissal, motion for, 430432
disqualication of judges, 415,
416419
tness to stand trial, 163,
395397
guilty pleas and plea bargaining,
423428, 512
in absentia, 382, 419422, 523
in camera sessions, 423, 514516
judicial bench, composition of,
412419
opening statements, 428
preparation prior to, 405407
public nature of, 423, 514516
replacement of judge or trial de novo,
412416
rights of accused at. See accused
sentencing procedures, 58, 429,
432433, 448449. See also
sentencing
verdict or judgment, 412, 432433,
448449
war crime, deprivation of
right to fair trial as,
205, 273
I N D E X 707
Trial Chambers, 593594
tribunals. See also more specic entries,
e.g. creation and establishment
of tribunals
alternative judicial mechanisms,
3234
budget for, 6, 32, 39, 41, 352, 493,
622623
hierarchy under ICJ, 111
ICC as permanent alternative to,
3132, 327
independence and impartiality as
right of accused, 505511
inherent or implied powers of,
112116
languages used at, 590
objectives of, 67
principles behind, 89
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
Turk, Helmut, 15
Tutsi, 24, 25, 34, 166, 168, 174175,
219, 550
Uganda on territorial jurisdiction of
tribunals, 130
UN
budget for tribunals, 6, 32, 39, 41,
352, 493, 622623
as part of agenda
of, 39, 10, 86
precursors of ICC, encouragement
of, 3, 10, 11, 83, 620
world government, acting as, 7
UN Charter. See also Table of
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, 4853
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,
9293, 443
UN Commission on Human Rights/
Human Rights Committee
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
sources of law, 110, 117
UN Security Council
on determination of existence of
armed conict, 230
on purpose of tribunal sentencing,
554, 555
UN Security Council Resolutions. See
also Table of legislative
provisions for citation of specic
Resolutions
knowledge, 490
legitimacy and legality of tribunals
created by, 4853, 5556,
5960
United Kingdom
defence of reprisal not accepted in,
115, 345
708 I N D E X
effects jurisdiction, 131
15, 17, 20
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
conict in Nicaragua case,
243245
ICC, hostility to, 32, 54, 132
27, 28
16, 19, 20, 21, 230
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
verdict or judgment, 412, 432433,
448449
victims
compensation for, 150, 578
Registry unit for, 611613
status as protected persons, 246248
Vohrah, Lal Chand, 104, 105,
120, 291
voluntary intoxication as defence,
334335
von Papen, Frans, 464
Vujin, Milan, 449
Wald, Patricia, 72, 87, 353, 449, 457,
490, 491, 562
war. See armed conict
war correspondents, privileges of,
495
war crimes, 226229
armed conict
existence as element of war crimes,
229231
international conict, 231236,
243246
knowledge of, 239240
nexus of crime with, 236239
non-international conict, 228,
231236
biological experimentation as, 251
child soldiers, 279285
cities and towns
wanton destruction of, 209,
261262
civilians
dened for purposes of grave
breaches of Geneva
Conventions, 248249
other serious violations of,
282283
collective punishment as, 279
cruel treatment, 214, 270271
cultural property, destruction of or
wilful damage to, 262264
enslavement and forced labour
as, 99, 100, 105, 274,
281282, 290, 401
I N D E X 709
war crimes (cont.)
forced transfers, 205209
Geneva Conventions
grave breaches of, 240243
other violations, 274
violations of common article
265274
violations specic to Additional
Protocols, 275282, 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, 253254
inhuman treatment as, 190, 206, 250,
270, 272
as international crime, 154155
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, 255258,
275282, 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, 434438
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, 262264
extensive destruction or
appropriation of, 252
plunder of, 264265
punishable acts
under Additional Protocols,
279285
under article 3 of ICTY Statute,
258265
under common article 3 of Geneva
Conventions, 265274
as grave breaches of the Geneva
Conventions, 249254
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, 280281
threats to violate common article 3
of Geneva Conventions as,
274, 621
torture as, 250
trial, deprivation of right of,
205, 273
use of term, 228
victims status as protected persons,
246248
white slavery or trafcking in persons,
154. See also enslavement and
forced labour
710 I N D E X
widespread or systematic attack
requirement for crimes against
humanity, 191196
Wierda, Marieke, 452, 464, 470
Wilhelm II (Kaiser), 9
Winter, Renate, 410, 418, 422, 515, 570
withdrawal of indictments,
375377
witnesses and testimony, 470475
afdavits, 477
anonymous testimony, 474, 503
children, 471
compelling production of, 467, 469
conduct of trial, 428429
depositions, 476477
examination of, 472
expert witnesses, 471, 480
in camera sessions, 423, 514516
judges, witnesses called by, 429
languages, 593
prior, out-of-court, and unsworn
statements, 457
protection of, 473474
Registry unit for victims and
witnesses, 611613
solemn declarations, 471
by video-link, 474475
World War I, international criminal
prosecution instruments in
wake of, 9
writings, academic, 107, 112
537539
Yugoslavia, current. See Serbia and
Montenegro
Yugoslavia, former. See International
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
Z
igic, Zoran, 500

I N D E X 711

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THE UN I NTE RNATI ONAL

elebic i case. See Delalic et al.

erkez case. See Kordic et al.

igic, 7 February 2003, 465, 524

es elj (IT-03-67), 365, 395, 417, 529, 530

es elj (IT-03-67-PT), Decision on

eselj with his Defence, 9

es elj (IT-03-67-PT), Decision on Motion

es elj (IT-03-67-PT), Decision, 30

es elj (IT-03-67-AR73.2), Decision on the

es elj (IT-03-67-AR72.1), Decision on the

tat francais, M. Dumas, au Procureur general, M. Truche,

elebic i, the Appeals Chamber note[d] that in human rights

erkez, an ICTY Trial Chamber considered the various

es elj (IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning Jurisdic-

es elj (IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning Jurisdic-

erkez, imprisonment in Article 5(e) of the Statute

erkez, the ICTYAppeals Chamber dened

erkez, the Appeals Chamber said attacks launched deliberately against

elebic i cited the Commentary to the fourth Geneva

elebic i, the ICTY Appeals Chamber said that detention would be

erkez, a Trial Chamber said that property situated on enemy

erkez, which involved destruction of schools, an ICTY Trial

erkez, held: [A] serious violation could be assumed in circumstances

elebic i case, there can be no line

elebic i, the ICTY Appeals Chamber

erkez had eVect-

elebic i, [i]n every criminal act there is a presumption of sanity

erkez, the Trial Chamber explained that self-defence in this

erkez cases, the

elebic i, an ICTY Trial Chamber said

erkez (IT-94-14/2-PT), Order on Pro-

eljko Savic, Mirko Babic, Nikica Janjic and Dragomir S

erkez, Aleksovski, the Kupreskic brothers, Josipovic, Santic).

igic, 21 July 2000.

es elj (IT-03-67-PT), Decision on Motion for Disqualication, 10 June 2003.

eselj to Judges Schomburg, Mumba and Agius, members

eselj said that the judges possess certain personal characteristics

es elj (IT-03-67-PT), Decision on Motion for Disqualication, 10 June 2003.

erkez, the Appeals Chamber

elebic i, a number of issues

elebic i, another Trial Chamber said:

elebic i, an ICTY Trial Chamber said that the

elebic i, the Trial Chamber

elebic i is unnecessary. According to United States case law,

igic, 7 February 2003, para. 17.

es elj (IT-03-67-PT), Decision on Prosecutions Motion for Order Appointing Counsel

elebic i trial to the prior

elebic i case, the ICTY Appeals Chamber considered the principle of

erkez for Extension

erkez for Extension of Time to File his

igic, 7 February 2003.

ljivancanin his choice of counsel because neither of the two lawyers

ljivancanin appealed the

ljivanc anin (IT-95-13/1-PT), Registrars Decision, 9 July 2003.

ljivanc anin (IT-95-13/1-PT), Decision on Assignment of Counsel, 20 August 2003.

es elj, the Prosecutor led a motion asking that

es elj ruling of the other Trial

es elj (IT-03-67-PT), Decision on Prosecutions Motion for Order Appointing Counsel

eselj with his Defence, 9 May 2003.

elebic i, the ICTY Appeals Chamber said that an absolute prohibition

elebic i, an ICTY Trial

erkez, the ICTY Appeals Chamber said: