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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
conflict 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 specific aspects of the activities of these
tribunals, this is the first comprehensive book to be published in more
than a decade.
W I L L I A M A . S C H A B A S O C is Professor of Human Rights Law at the
National University of Ireland, Galway, and Director of the Irish Centre
for Human Rights. His numerous publications include Genocide in
International Law (Cambridge University Press, 2000), The Abolition
of the Death Penalty in International Law (Cambridge University Press,
3rd edition 2002), and An Introduction to the International Criminal
Court (Cambridge University Press, 2nd edition 2004).
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
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Cambridge University Press
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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 field 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 Coˆ 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
O’Sullivan at Cambridge University Press has been, as always, full of encour-
agement as well as bits of fine advice when they are most needed. Finally,
without the support and encouragement of my wife, Penelope Soteriou, this
book would not have been possible.
ix
TABLE OF CASES
A, B, C, D, E, F, G, H, Mahmoud Abu
Rideh, Jamal Ajouaou v. Secretary of
State for the Home Department, C2/
2003/2796 (CA) (Civil Div.), 11
August 2004, 46
Ademi (IT-01-46-PT), Orders on Motions
for Provisional Release, 20
February 2002, 393
Ademi (IT-04-78-PT), Request by the
Prosecutor Under Rule 11 bis, 2
September 2004, 407, 409
Advisory Opinion on the Legal
Consequences of the Construction of
a Wall in the Occupied Palestinian
Territory, 9 July 2004, 260
In Re Agent Orange Products Liability
Litigation, [2005] WL 729177 (ED
NY), 45
Akayesu (ICTR-96-4), 34, 150, 168, 172,
174–175, 177, 181, 192, 206, 211,
212, 223, 238, 278, 300, 304, 307,
308, 360, 372, 402, 446, 453,
454–455, 484, 511, 622
Akayesu (ICTR-96-4-T), Decision on the
Request of the Accused for the
Replacement of Assigned Counsel,
20 November 1996, 527
Akayesu (ICTR-96-4-T), Decision by the
Tribunal on its Request to the
Prosecutor to Submit the Written
Witness Statements, 28 January
1997, 402
Akayesu (ICTR-96-4-T), Decision on the
Defence Motion Requesting an
Inspection of the Site and the
Conduct of a Forensic Analysis, 17
February 1998, 590
Akayesu (ICTR-96-4-T), Judgment, 2
September 1998, 25, 45, 81, 106,
109, 138, 164, 168, 172, 173, 174,
175, 177, 178, 182, 190, 191, 192,
206, 207, 209, 212, 214, 222, 223,
229, 230, 237, 239, 265, 268, 275,
278, 293, 298, 300, 301, 302, 304,
305, 306, 307, 308, 319, 322, 323,
342, 360, 372, 385, 444–445, 453,
454, 455, 485, 497, 536
Akayesu (ICTR-96-4-S), Sentencing
Judgment, 2 October 1998,
299, 575
Akayesu (ICTR-96-4-T), Sentencing
Judgment, 2 October 1998, 162,
561, 568
Akayesu (ICTR-96-4-A), Decision
Relating to the Assignment of
Counsel, 27 July 1999, 91, 526, 618
Akayesu (ICTR-96-4-A), Ordonnance
(Requeˆte aux fins de traduction des
me´moires de l’Appelant), 29 March
2001, 591
Akayesu (ICTR-96-4-A), Judgment, 1
June 2001, 45, 78, 194, 197, 236,
239, 299, 300, 372, 479, 511, 512,
525, 526
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 Prosecutor’s Appeal on
Admissibility of Evidence, 16
February 1999, 88, 456, 459,
479, 514
Aleksovski (IT-95-14/1-AR73), Dissenting
Opinion of Judge Patrick
Robinson, 16 February 1999, 454,
462, 482
Aleksovski (IT-95-14/1-A), Opinion
dissidente du Juge Rodrigues,
Pre´sident de la Chambre de
priemie‘re instance, 25 June 1999,
142, 242
Aleksovski (IT-95-14/1-T), Judgment, 25
June 1999, 272, 303, 305, 321
Aleksovski (IT-95-14/1-A), Judgment, 24
March 2000, 65, 78, 81, 93, 240,
244, 248, 307, 316, 438, 441,
449, 456, 484, 534, 537, 556,
557, 558, 563, 564, 565
Aleksovski (IT-98-32-T), Judgment, 29
November 2002, 304
Allenet de Ribemont v. France, Series A,
No. 308, 10 February 1995, 519
A P v. Italy (No. 204/1986), UN Doc.
CCPR/C/31/D/204/1986, 2
November 1987, 127
Babic ´ (IT-03-72-S), Sentencing
Judgment, 29 June 2004, 427, 558,
560, 568, 572, 573, 574
Bagambiki et al. (ICTR-97-36-I),
Decision on the Defence Motion
on Defects in the Form of the
Indictment, 24 September 1998,
108, 360
Bagambiki et al. (ICTR-97-36-I),
Decision on the Defence Motion
for the Separation of Crimes and
Trails, 30 September 1998, 360
Bagambiki et al. (ICTR-99-46-0550),
Decision on the Defence Motion
for the Transfer of a Detained
Witness from Rwanda, Rule 90 bis,
17 February 2003, 470
Bagilishema (ICTR-95-1A), 433,
543, 590
Bagilishema (ICTR-95-1A-T), Judgment,
7 June 2001, 81, 169, 173, 175,
190, 192, 194, 197, 198, 200,
230, 236, 237, 238, 268, 278,
293, 298, 299, 303, 304, 305,
307, 319, 320, 321, 322, 336,
385, 499, 575, 590
Bagilishema (ICTR-95-1A-A),
Judgment, 3 July 2002, 319, 441,
451, 479
Bagilishema (ICTR-95-1A-A), Decision
on the Defence’s Motion to have
the Prosecutor’s Notice of Appeal
Declared Inadmissible, 26 October
2002, 443
Bagosora (ICTR-98-41), 415
Bagosora (ICTR-96-7-T), Decision on
the Request by the Accused for
Change of Assigned Counsel, 26
June 1997, 527
Bagosora (ICTR-96-7-T), Decision
on the Amicus Curiae Application
by the Government of the
Kingdom of Belgium, 6 June 1998,
411, 619, 620
Bagosora (ICTR-96-7-T), Decision on the
Defence Motion for
Pre-determination of Rules
of Evidence, 8 July 1998, 86, 461
Bagosora (ICTR-96-7), Decision on the
Prosecutor’s Motion for Joinder, 29
June 2000, 368, 369
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 Modification
of Protective Measures for
Witnesses, 5 January 2002, 227, 402
Bagosora (ICTR-98-41-I), Decision on
Prosecutor’s Motion for
Deposition of Witness OW, 5
January 2002, 476
Bagosora (ICTR-98-41-T), Decision on
the Defence Motion for Release, 12
July 2002, 391, 574
Bagosora (ICTR-98-41-T), Decision on
the Defence for Bagosora’s Motion
for Postponement or Quashing of
the Testimonies of Witnesses
Ruggiu, XAM and ZF, 30
September 2002, 403
Bagosora (ICTR-98-41-T), Order for the
Transfer of Detained Prosecution
Witness Omar Serushago, 2
October 2002, 470
Bagosora (ICTR-98-41-T), Decision
on Continuation or
Commencement de novo of Trial,
11 June 2003, 416
Bagosora (ICTR-98-41-T), Decision on
Amicus Curiae Request by African
Concern, 23 March 2004, 620
Bagosora (ICTR-98-41-T), Decision on
Prosecutor’s Motion for Site Visits
in the Republic of Rwanda, 29
September 2004, 590
Bagosora (ICTR-98-41-T), Decision
on Prosecution Request for
Testimony of Witness BT
Via Video-Link,
8 October 2004, 475
Bagosora (ICTR-98-41-T), Decision on
Amicus Curiae Request by the
Rwandan Government, 13 October
2004, 149, 620
Bagosora (ICTR-98-41-T), Decision on
Testimony by Video-conference, 20
December 2004, 475
Bagosora (ICTR-98-41-T), Decision on
Motions for Judgment of
Acquittal, 2 February 2005, 182,
224, 431
Bagosora (ICTR-98-41-T), Decision on
Ntabakuse Motion to Allow
Witness DK 52 to Give Testimony
by Video-Conference, 22 February
2005, 475
Bagosora et al. (ICTR-98-37), 124
Bagosora et al. (ICTR 98-37-A), Decision
on the Admissibility of the
Prosecutor’s Appeal from the
Decision of a Confirming Judge
Dismissing an Indictment against
The´oneste Bagasora and 28 Others,
8 June 1998, 78, 80, 87, 89, 364, 514
Banovic ´ (IT-02-65/1-S), Sentencing
Judgment, 28 October 2003,
331, 574
Barayagwiza (ICTR-97-19), 14, 89,
182, 300, 379, 381, 421, 505, 538,
540, 543
Barayagwiza (ICTR-97-19-I), Decision
on the Extremely Urgent Motion
by the Defence for Orders to
Review and/or Nullify the Arrest
and Provisional Detention of the
Suspect, 17 November 1998,
87, 377
Barayagwiza (ICTR-97-19-AR72),
Decision, 3 November 1999, 97,
378, 379, 505, 519, 539, 540
Barayagwiza (ICTR-97-19-AR72), Order,
8 December 1999, 411
Barayagwiza (ICTR-97-19-AR72),
Decision (Prosecutor’s Request for
Review or Reconsideration), 31
March 2000, 75, 89, 450, 504, 538,
540, 620
xii TA B L E O F C A S E S
Barayagwiza (ICTR-97-19-AR72),
Declaration of Judge Rafael
Nieto-Navia, 31 March 2000, 106
Barayagwiza (ICTR-97-19-I), Decision
on the Request of the Defence for
Severance and Separate Trial, 26
September 2000, 371
Barayagwiza (ICTR-97-15-T), Decision
on Defence Counsel Motion to
Withdraw, 2 November 2000, 421
Barbera` v. Spain, (1988) 11 EHRR 360,
513, 517
Barbie case (Fe´de ´ration nationale des
de ´porte ´s et interne ´s re´sistants et
patriotes et al. v. Barbie, (1984) 78
ILR 125), 44
Barcelona Traction case, 438
Bell v. Wolfish, 441 US 520 (1979), 518
Bizimungu (ICTR-99-50-AR50), Decision
on Prosecutor’s Interlocutory
Appeal against Trial Chamber II
Decision of 6 October 2003
Denying Leave to File Amended
Indictment, 12 February 2004,
312, 373
Bizimungu (ICTR-99-50-T), Oral
Decision on Qualification of
Prosecution Expert Jean Rubaduka,
24 March 2004, 498
Bizimungu (ICTR-99-50-AR73.3 and
AR73.4), Decision on Mugiraneza
Interlocutory Appeal Against
Decision of the Trial Chamber on
Exclusion of Evidence, 15 July
2004, 448
Bizimungu (ICTR-99-50-T), Decision on
Prosper Mugiraneza’s Application
for a Hearing or Other Relief on his
Motion for Dismissal for Violation
of his Right to a Trial Without
Undue Delay, 3 November
2004, 523
Bizimungu (ICTR-99-50-T), Decision on
Prosper Mugiraneza’s First Motion
for Judicial Notice Pursuant to
Rule 94(B), 10 December 2004,
489, 492
Bizimungu (ICTR-99-50-T), Decision on
Je´roeˆme-Cle´ment Bicumumpaka’s
Motion for Judicial Notice of a
Rwandan Judgment of 8 December
2000 and in the Alternative for an
Order to Disclose Exculpatory
Evidence, 15 December 2004, 492
Bizimungu (ICTR-99-50-T), Oral
Decision on Qualification of
Prosecution Expert Jean Rubaduka,
24 March 2005, 482
Blagojevic ´ et al. (IT-02-60), 166, 167, 176,
305, 590, 601
Blagojevic ´ et al. (IT-02-53-AR65),
Decision on Application by Dragan
Jokic´ for Leave to Appeal, 18 April
2002, 392, 395
Blagojevic ´ et al. (IT-02-60-PT), Decisions
on Vidoje Blagojevic´’s and Dragan
Obrenovic´’s Applications for
Provisional Release, 22 July
2002, 392
Blagojevic ´ et al. (IT-02-60-T), Joint
Decision on Motions Related to
Production of Evidence, 12
December 2002, 601
Blagojevic ´ et al. (IT-02-60-AR73/AR73.2/
AR73.3), Decision, 8 April 2003,
88, 403
Blagojevic ´ et al. (IT-02-60-T), Decision
on Vidoje Blagojevic´’s Expedited
Motion to Compel the Prosecution
to Disclose its Notes from Plea
Discussions with the Accused
Nikolic´ and Request for an
Expedited Open Session Hearing,
13 June 2003, 495, 504
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
Blagojevic ´ et al. (IT-02-60-T), Decision
on Prosecution’s Motions for
Admission of Expert Statement, 7
November 2003, 481
Blagojevic ´ et al. (IT-02-60-T), Decision
on Prosecution’s Motion for Leave
to File Fourth Amended Joinder
Indictment, 10 June 2004, 373
Blagojevic ´ et al. (IT-02-60-T) Judgment,
17 January 2005, 136, 163, 174,
176, 200, 201, 204, 218, 220, 221,
222, 224, 304, 305, 307, 343, 347,
383, 416, 492
Blas ˇkic ´ (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 ˇkic ´ (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 ˇkic ´ (IT-95-14-PT), Decision, 14
October 1996, 92–93, 443
Blas ˇkic ´ (IT-95-14-T), Decision on Motion
of the Defence Seeking
Modification of the Conditions of
Detention of General Blasˇkic´, 9
January 1997, 517
Blas ˇkic ´ (IT-95-14), Decision on the
Production of Discovery Materials,
27 January 1997, 398, 400
Blas ˇkic ´ (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 ˇkic ´ (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 ˇkic ´ (IT-95-14-T), Order, 30 January
1998, 488
Blas ˇkic ´ (IT-95-14-T), Decision on the
Prosecutor and Defence Motions to
Proceed by Deposition, 19
February 1998, 476
Blas ˇkic ´ (IT-95-14-T), Order, 29 April
1998, 488
Blas ˇkic ´ (IT-95-14-T), Decision of Trial
Chamber I on the Defence Motion
to Dismiss, 3 September 1998, 81
Blas ˇkic ´ (IT-95-14-T), Decision on the
Defence Motion for Sanctions for
the Prosecutor’s Continuing
Violation of Rule 68, 28 September
1998, 400
Blas ˇkic ´ (IT-95-14-T), Decision to Order
the Witness Slavko Marin to
Appear Before Trial Chamber I, 15
October 1998, 469
Blas ˇkic ´ (IT-95-14-T), Order for a Witness
to Appear, 5 November 1998, 488
Blas ˇkic ´ (IT-95-14-T), Decision of Trial
Chamber I in respect of the
Appearance of Colonel Robert
Stewart, etc., 25 March 1999, 471
Blas ˇkic ´ (IT-95-14-T), Order for the
Production of Documents Used to
Prepare for Testimony, 22 April
1999, 100, 401
Blas ˇkic ´ (IT-95-14-T), Decision of Trial
Chamber I on the Protective
Measures for General Philippe
Morillon, Witness of the Trial
Chamber, 12 May 1999, 362,
423, 469
xiv TA B L E O F C A S E S
Blas ˇkic ´ (IT-95-14-T), Judgment, 3 March
2000, 54, 99, 162, 172, 173, 190,
191, 192, 193, 194, 195, 197, 199,
218, 219, 220, 221, 223, 229, 233,
236, 237, 237, 246, 248, 250, 251,
254, 257, 258, 263, 265, 267, 268,
269, 270, 271, 283, 294, 298, 299,
300, 301, 302, 304, 307, 308, 315,
316, 317, 321, 322, 323, 324, 345,
385, 404, 413, 444–445, 552,
558, 560, 561, 563, 568, 569, 570,
571, 572, 573, 574, 575, 576,
577, 580
Blas ˇkic ´ (IT-95-14-A), Decision on the
Appellant’s Motions for the
Production of Material, Suspension
or Extension of the Briefing
Schedule, and Additional Filings,
26 September 2000,
399, 400
Blas ˇkic ´ (IT-95-14-A), Decision on
Evidence, 31 October 2003,
99, 410, 484
Blas ˇkic ´ (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 ˇkic ´ (IT-95-14-A), Partial Dissenting
Opinion of Judge Weinberg de
Roca, 29 July 2004, 447
Blockburger v. United States, 284 US 299,
304 (1931), 172, 434
Boskoski et al. (IT-04-82-PT), Decision on
Johan Tarculovski’s Motion
Challenging Jurisdiction, 1 June
2005, 133
Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro), 111
Bouzari v. Iran, [2002] CarswellOnt 1469
(Ont.SCJ), 45
Brandsetter v. Austria, (1991) 15 EHRR
213, 219, 513
Brðanin (IT-99-36), 167, 201, 463
Brðanin (IT-99-36-PT), Decision on
Motion to Dismiss Indictment, 5
October 1999, 87, 371
Brðanin (IT-99-36-PT), Decision on
Petition for a Writ of Habeas
Corpus on Behalf of Radoslav
Brðanin, 8 December 1999, 97
Brðanin (IT-99-36-PT), Decision on
Motions by Momir Talic´ (1) To
Dismiss the Indictment, (2) For
Release, and (3) For Leave to Reply
to Response of Prosecution to
Motion for Release, 1 February
2000, 389
Brðanin (IT-99-36-PT), Decision on
Motions by Momir Talic´ for a
Separate Trial and for Leave to File
a Reply, 9 March 2000, 371
Brðanin (IT-99-36-PT), Decision on
Application by Momir Talic´ for the
Disqualification and Withdrawal
of a Judge, 18 May 2000, 107, 560
Brðanin (IT-99-36-A), Decision on
Application for Leave to Appeal, 7
September 2000, 5, 393
Brðanin (IT-99-36-PT), Decision on
Motion by Brðanin for Provisional
Release, 18 September 2000,
392, 393
Brðanin (IT-99-36), Decision on Filing
Replies, 7 June 2001, 372
Brðanin (IT-99-36-PT), Decision on
Form of Further Amended
Indictment and Prosecution
Application to Amend, 26 June
2001, 362, 469
Brðanin (IT-99-36-PT), Order on the
Standards Governing the
Admission of Evidence, 15
February 2002, 456, 482
TA B L E O F C A S E S xv
Brðanin (IT-99-36-T), Decision on
‘Motion to Declare Rule 90(H)(ii)
Void to the Extent it is in Violation
of Article 21 of the Statute of the
International Tribunal’ by the
Accused Brðanin and on ‘Rule 90
(H)(ii) Submissions’ by the
Accused Momir Talic´, 22 March
2002, 87
Brðanin (IT-99-36-PT), Decision on
Motion for Production of
Documents – Dzonlic Testimony of
11 March 2002, 9 April 2002, 494
Brðanin (IT-99-36-T), Decision on
Motion to Set Aside Confidential
Subpoena to Give Evidence, 7 June
2002, 459
Brðanin (IT-99-36-T), Decision to
Grant Certification to Appeal the
Trial Chamber’s Decision on
Motion to Set Aside Confidential
Subpoena to Give Evidence, 19
June 2002, 442
Brðanin (IT-99-36-AR73.9), Decision on
Interlocutory Appeal, 11 December
2002, 459, 462, 495
Brðanin (IT-99-36-A), Decision on
Motion to Set Aside Confidential
Subpoena to Give Evidence, 15
December 2002, 495
Brðanin (IT-99-36-T), Order for
Testimony via Video-Conference
Link Pursuant to Rule 71 bis, 9
September 2003, 475
Brðanin (IT-99-36-T), Decision on the
Defence ‘Objection to Intercept
Evidence’, 3 October 2003, 460
Brðanin (IT-99-36-T), Decision on
Motion for Acquittal Pursuant to
Rule 98 bis, 28 November 2003, 313
Brðanin (IT-99-36-A), Decision on
Interlocutory Appeal, 19 March
2004, 313
Brðanin (IT-99-36-R77), Concerning
Allegations Against Milka Maglov,
Decision on Motion for Acquittal
Pursuant to Rule 98 bis, 19 March
2004, 114
Brðanin (IT-99-36-T), Judgment, 1
September 2004, 102, 108, 163,
165, 166, 167, 168, 169, 175, 201,
311, 321, 323, 332, 343, 429, 463,
485, 557, 559, 561
Brima et al. (SCSL-03-06-PT), Ruling on
the Application for the Issue of a
Writ of Habeas Corpus Filed by the
Applicant, 22 July 2003, 55
Brima et al. (SCSL-04-16-PT), Written
Reasons for the Trial Chamber’s
Oral Decision on the Defence
Motion on Abuse of Process Due to
Infringement of Principles of
nullum crimen sine lege and 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
ˇ
elebic ´i case. See Delalic ´ et al.
C
ˇ
erkez case. See Kordic ´ et al.
Chorzo´w 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
Confirmation of the Status of
Witnesses for the Defence, 31 May
1996, 520
Delalic ´ et al. (IT-96-21-T), Decision on
Request by Accused Mucic´ for
Assignment of New Counsel, 24
June 1996, 526
Delalic ´ et al. (IT-96-21), Decision on the
Motion by the Accused Zejnil
Delalic´ for the Disclosure of
Evidence, 26 September 1996, 400
Delalic ´ et al. (IT-96-21-A), Decision of
the President on the Prosecutor’s
Motion for the Production of
Notes Exchanged between Zejnil
Delalic´ and Zdravko Mucic´, 11
November 1996, 114
Delalic ´ et al. (IT-96-21), Decision
on the Defence Motion to Compel
the Discovery of Identity and
Location of Witnesses, 18 March
1997, 398
Delalic ´ et al. (IT-96-21-T), Decision on
the Motion on Presentation of
Evidence by the Accused, 1 May
1997, 453, 472
Delalic ´ et al. (IT-96-21-T), Decision on
the Motion to allow Witnesses K, L
and M to give their Testimony by
Means of Video-Link Conference,
28 May 1997, 475
Delalic ´ et al. (IT-96-21-T), Decision on
the Prosecution’s Motion for the
Redaction of the Public Record, 5
June 1997, 499
Delalic ´ et al. (IT-96-21), Decision on the
Motion to Compel the Disclosure
of the Addresses of the Witnesses,
13 June 1997, 399
Delalic ´ et al. (IT-96-21-T), Order on
Zdravko Mucic´’s Request for
Serbo-Croatian Interpretation, 23
June 1997, 532
Delalic ´ et al. (IT-96-21), Decision on the
Request of the Accused Hazim
Delalic´ Pursuant to Rule 68 for
Exculpatory Information, 24 June
1997, 400
Delalic ´ et al. (IT-96-21-T), Decision on
the Motion ex parte by the Defence
of Zdravko Mucic´ Concerning the
Issue of a Subpoena to an
Interpreter, 8 July 1997, 120, 358,
460
Delalic ´ et al. (IT-96-21-T), Decision on
Zdravko Mucic´’s Motion for the
Exclusion of Evidence, 2 September
1997, 460, 463
Delalic ´ et al. (IT-96-21-T), Decision on
the Motion of the Prosecution for
the Admissibility of Evidence, 19
January 1998, 456
Delalic ´ et al. (IT-98-21-T), Decision on
the Admissibility of Exhibit 155, 19
January 1998, 456
TA B L E O F C A S E S xvii
Delalic ´ et al. (IT-96-21-T), Order on Esad
Landzˇo’s Submission Regarding
Diminished or Lack of Mental
Capacity, 18 June 1998, 333
Delalic ´ et al. (IT-96-21-T), Decision on
the Alternative Request for
Renewed Consideration of
Delalic´’s Motion for an
Adjournment until 22 June or
Request for Issue of Subpoenas to
Individuals and Requests for
Assistance to the Government of
Bosnia and Herzegovina, 22 June
1998, 443
Delalic ´ et al. (IT-96-21-T), Subpoena ad
testificandum to Nurko Tabak, 25
June 1998, 469
Delalic ´ et al. (IT-96-21-T), Decision on
the Motion by the Defendant
Delalic´ Requesting Procedures for
Final Determination of the Charges
Against Him, 1 July 1998, 369
Delalic ´ et al. (IT-96-21-T), Decision on
the Prosecution’s Alternative
Request to Reopen the
Prosecution’s Case, 19 August
1998, 428
Delalic ´ et al. (IT-96-21-T), Decision of
the Bureau on Motion on Judicial
Independence, 4 September 1998,
419
Delalic ´ et al. (IT-96-21-T), Judgment, 16
November 1998, 3, 46, 54, 65, 73,
78, 81, 83, 97, 102, 109, 173, 206,
207, 208, 209, 212, 237, 243, 250,
251, 253, 258, 260, 264, 265, 270,
299, 303, 315, 316, 321, 322, 326,
331, 333, 342, 355, 360, 377, 463,
490, 556, 569, 570, 571, 575, 576,
577, 620
Delalic ´ et al. (IT-96-21-A), Separate
Opinion of Judge Hunt, 22 April
1999, 113
Delalic ´ et al. (IT-96-21-A), Decision on
Motion to Preserve and Provide
Evidence, 22 April 1999, 496
Delalic ´ et al. (IT-96-21-A), Decision of
the Bureau on Motion to
Disqualify Judges Pursuant to Rule
15 or in the Alternative that
Certain Judges Recuse Themselves,
25 October 1999, 510
Delalic ´ et al. (IT-96-21-A), Declaration of
Judge Shahabuddeen, 25 October
1999, 510
Delalic ´ et al. (IT-96-21-A), Order on
Motion of the Appellant, Esad
Landzˇo, for Permission to Obtain
and Adduce Further Evidence on
Appeal, 7 December 1999, 106
Delalic ´ et al. (IT-96-2.1-A), Judgment,
20 February 2001, 65, 81, 87, 93,
102, 105, 110, 111, 130, 173,
244, 245, 248, 250, 253, 254,
257, 258, 268, 280, 319,
320, 321, 322, 323, 332, 333,
340, 368, 385, 418, 419, 434,
437, 438, 448, 460, 463, 465, 466,
484, 485, 497, 498, 512, 532, 533,
537, 545, 552, 553, 556, 560, 563,
564, 565, 566, 567, 568, 569, 571,
572, 607
Delalic ´ et al. (IT-96-21-A), Separate
and Dissenting Opinion of
Judge David Hunt and Judge
Mohamed Bennouna, 20 February
2001, 434
Delalic ´ et al. (IT-96-21-T), Request
for Personal Funds Used for
Defence Expenses, 18 May
2001, 538
Delic ´ (IT-96-21-R-R119), Decision on
Motion for Review, 25 April
2002, 450
Demjanjuk v. Petrovsky, 776 F.2d 571, 582
(6th Cir., 1985), 155
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, 424–425, 452, 469, 524,
555, 565, 579, 581
Erdemovic ´ (IT-96-22), Indictment, 22
May 1996, 361
Erdemovic ´ (IT-96-22-T), Sentencing
Judgment, 29 November 1996, 45,
92, 330, 331, 391, 396, 424, 470,
554, 555, 556, 557, 573, 574, 575,
576, 577, 581
Erdemovic ´ (IT-96-22-A), Joint Separate
Opinion of Judge McDonald and
Judge Vohrah, 7 October 1997,
75, 98, 99, 104, 120, 291, 332, 484,
524, 562
Erdemovic ´ (IT-96-22-A), Judgment, 7
October 1997, 107, 153, 424, 447
Erdemovic ´ (IT-96-22-A), Separate and
Dissenting Opinion of Judge
Cassese, 7 October 1997, 75, 81,
105, 118, 120, 281–282, 290,
291, 350
Erdemovic ´ (IT-96-22-A), Separate and
Dissenting Opinion of Judge Li, 7
October 1997, 107,
120, 187
Erdemovic ´ (IT-96-22-A), Separate and
Dissenting Opinion of Judge
Stephen, 7 October 1997, 524
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
Fe´de ´ration nationale des de´porte´s et
interne ´s re´sistants et patriotes et al.
v. Barbie, (1984) 78 ILR 125, 44
Finta case (R v. Finta, [1994] 1 SCR 701),
44, 45, 173, 195
Fofana. See also Norman et al.
Fofana (SCSL-04-14-PT), Confidential
Submissions Made by the
Government of the Republic of
Sierra Leone under Rule 65(B) of
the Rules of Procedure and
Evidence, 23 February 2004, 395
Fofana (SCSL-04-14-PT), Decision on the
Preliminary Defence Motion on the
Lack of Personal Jurisdiction Filed
on Behalf of the Accused Fofana, 3
March 2004, 146, 354
Fofana (SCSL-04-14-AR72(E)). Decision
on Preliminary Motion on Lack of
Jurisdiction Materiae: Illegal
Delegation of Powers by the United
Nations, 25 May 2004, 55, 92
Fofana (SCSL-04-14-AR72(E)), Decision
on Preliminary Motion on Lack of
Jurisdiction Materiae: Nature of
Armed Conflict, 25 May 2004,
279, 282
Ford v. Garcia 289 F.3d 932 (11th Cir.,
2002), 45
Forum of Conscience v. Sierra Leone (No.
223/98), 28th Ordinary Session of
the African Commission of Human
and Peoples’ Rights, Cotonou,
Benin, 23 October to 6 November
2000, 546
France v. Turkey (SS Lotus case), [1927]
PCIJ Ser. A. (Judgments) No. 10
(Judgment No. 9) (1929), 67, 154,
232–236, 532
Furundzˇija (IT-95-17/1), 78, 92, 98,
206, 208, 322, 342, 385, 403, 416,
418, 497
Furundzˇija (IT-95-17/1-T), Decision on
the Defendant’s Motion to Dismiss
Counts 13 and 14 of the
Indictment (Lack of Subject-Matter
Jurisdiction), 29 May 1998, 246
Furundzˇija (IT-95-17/1-T), Amended
Indictment, 2 June 1998, 246, 526
Furundzˇija (IT-95-17/1-T), Judgment, 10
December 1998, 46, 53, 64, 69, 78,
98, 99, 102, 105, 109, 118, 193,
206, 207, 209, 229, 231, 233, 234,
265, 274, 303, 304, 307, 309, 342,
403, 463, 469, 498, 509, 569, 575,
576, 577
Furundzˇija (IT-95-17/1-A), Judgment, 21
July 2000, 93, 205, 250,
294, 308, 360, 418, 441, 445,
491, 506, 545, 556, 561, 562,
564, 569, 622
Gacumbitsi (ICTR-01-64-0051), Decision
Concerning the Prosecutor’s
Motion for the Transfer of
Witnesses Detained in Rwanda,
Rule 90 bis of the Rules of
Procedure and Evidence, 11 July
2003, 470
Gacumbitsi (ICTR-2001-64-T),
Judgment, 17 June 2004, 311, 339
Gagnon & Vallie `res v. The Queen, [1971]
CA Que´bec 454, 64
Galic ´ (IT-98-29), 225, 281, 346, 500
Galic ´ (IT-98-29-AR73.2), Decision
on Interlocutory Appeal
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
Go¨ring case (France et al. v. Go¨ring et al.,
(1946) 22 IMT 203, 13 ILR 203), 7,
10, 54, 62, 98, 157, 227, 228, 260,
263, 330, 395, 464
The Greek Case, (1972) 12 Yearbook of
the European Convention on
Human Rights 186, 250
Hadz ˇihasanovic ´ et al. (IT-01-47-PT),
Decisions granting Provisional
Release to Enver Hadzˇihasanovic´,
Mehmed Alagic and Amir Kubura,
9 December 2001, 394, 532
Hadz ˇihasanovic ´ et al. (IT-01-47-PT),
Decision on Joint Challenge to
Jurisdiction, 12 November 2002,
65, 66, 95, 101, 620
Hadz ˇihasanovic ´ 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 ˇihasanovic ´ et al. (IT-01-47-AR72),
Partial Dissenting Opinion of
Judge Shahabuddeen, 16 July
2003, 106
Hadz ˇihasanovic ´ et al. (IT-01-47-T),
Decision Pursuant to Rule 65
Granting Amir Kubura
Authorization to Attend his
Mother’s Funeral, 12 March
2004, 390
Haradinaj et al. (IT-04-84-I), Indictment,
24 February 2005, 278, 482
Harb v. Canada, [2002] CarswellNat 2954
(FC), 45, 396
Hess v. United Kingdom (App. No. 6231/
73), (1975) 2 DR 72 544
High Command trial (United States of
America v. von Leeb et al., (1948) 12
LRTWC 1; 11 TWC 462), 105,
279, 339
Hostage case (United States v. Wilhelm List
et al., (1948) 8 LRTWC 34, 11 TWC
757), 105, 256
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.
Alsto¨tter et al. (1948) 3 TWC 1, 6
LRTWC 1, 14 ILR 278), 501
Kabiligi et al. (ICTR-96-34-I), Decision
on the Defence Motions Objecting
to a Lack of Jurisdiction and
Seeking to Declare the Indictment
Void ab initio, 13 April 2000, 137
Kabuga Family case (Miscellaneous –
Kabuga Family-01-A, Decision
(Appeal of the Family of Felicien
Kabuga Against Decisions of the
Prosecutor and President of the
Tribunal), 22 November 2002),
106, 113, 149, 166
Kajelijeli (ICTR-98-44A), 538
Kajelijeli (ICTR-98-44A-T),
Minutes of Proceedings, 2 July
2001, 412
Kajelijeli (ICTR-98-44A-T), Decision on
the Appeal from the Decision of 13
March 2001 Rejecting the Defence
Motion Objecting to the
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 Prosecutor’s Motion for
Judicial Notice Pursuant to Rule 94
of the Rules, 16 April 2002, 40, 489,
490, 491
Kajelijeli (ICTR-98-44A-T), Detention
of Witnesses, Decision on the
Prosecutor’s Urgent Ex Parte
Motion Requesting an Order
Discharging Prosecution
Witnesses GDD, GAO, GDQ
and GAP from further Detention
in UNDF (Rule 90 bis), 29 April
2002, 470
Kajelijeli (ICTR-98-44A-T), Judgment
and Sentence, 1 December 2003,
109, 166, 168, 169, 180, 181, 223,
341, 603
Kajelijeli (ICTR-98-44A-A), Decision
on Defence Motion for the
Admission of Additional Evidence
Pursuant to Rule 115 of the Rules
of Procedure and Evidence, 28
October 2004, 484
Kajelijeli (ICTR-98-44A-A), Judgment, 23
May 2005, 97, 99, 258, 377, 388,
446, 448, 504, 520, 539
Kallon et al. (SCSL-04-15, 16 and
17-AR72-E), Decision on
Constitutionality and Lack of
Jurisdiction, 13 March 2004, 39, 51,
57, 58, 67, 82
Kallon et al. (SCSL-04-15-AR72(E)),
Decision on Challenge to
Jurisdiction: Lome´ Accord
Amnesty, 13 March 2004, 338, 540
Kamara (SCSL-04-16-AR72(E)),
Decision on Challenge to
Jurisdiction: Lome´ Accord
Amnesty, 13 March 2004,
338, 540
Kambanda (ICTR-97-23), 425, 426,
562, 565
Kambanda (ICTR 97-23-S), Judgment
and Sentence, 4 September 1998,
54, 162, 180, 181, 182, 299, 321,
327, 425, 465, 546, 550, 556, 557,
561, 562, 566, 567, 568, 569, 571,
572, 573, 574, 575, 607
Kambanda (ICTR 97-23-A), Judgment,
19 October 2000, 425, 446, 525,
550, 564
Kamuhanda (ICTR-99-54-T), Minutes
of Proceedings, 3 September
2001, 412
Kamuhanda (ICTR-99-54A-T), Decision
on Kamuhanda’s Motion for
Extension of Judicial Cooperation
to Certain States and to the
UNHCR Pursuant to Article 28 of
the Statute and Resolution 955 of
the Security Council, 9 May
2002, 356
Kamuhanda (ICTR-99-54A-T), Decision
on Kamuhanda’s Motion for Partial
Acquittal Pursuant to Rule 98 bis of
the Rules of Procedure and
Evidence, 20 August 2002, 431, 463
Kamuhanda (ICTR-95-54A-T),
Judgment, 22 January 2004,
164, 197, 210, 561
Kamuhanda (ICTR-99-54A-A), Oral
Decision (Rule 115 and Contempt
of False Testimony), 19 May 2005,
3, 224, 354
Kanyabashi (ICTR-96-15), 52, 53, 128,
173, 385, 521
Kanyabashi (ICTR-96-15-T), Decision on
the Defence Motion on
Jurisdiction, 18 June 1997, 50, 52,
53, 128
Kanyabashi (ICTR-96-15-A), Decision on
the Defence Motion for
Interlocutory Appeal on
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
the Rules of Procedure and
Evidence), 13 June 2001, 391, 574
In re Kappler, (1948) 15 ILR 471 (Military
Tribunal of Rome), 279
Karadz ˇic ´ et al. (IT-95-5 and IT-95-18), 19,
20, 24, 69, 347, 381, 388
Karadz ˇic ´ et al. (IT-95-5-R61 and
IT-95-18-R61), Deferral, 16 May
1995, 327
Karadz ˇic ´ et al. (IT-95-5-I), Indictment, 24
July 1995, 19, 177
Karadz ˇic ´ 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 Prosecutor’s
Interlocutory Appeal Against Trial
Chamber III Decision of 9 October
Denying Leave to File an Amended
Indictment, 19 December
2003, 448
Karemera et al. (ICTR-98-44-T), Decision
on Motion by Nzirorera for
Disqualification of Trial Judges, 17
May 2004, 176, 416
Karemera et al. (ICTR-98-44-AR15bis.2),
Decision on Interlocutory
Appeals Regarding the
Continuation of Proceedings
with a Substitute Judge and on
Nzirorera’s Motion for Leave to
Consider New Material, 28
September 2004, 415
Karemera et al. (ICTR-98-44-AR15bis.2),
Reasons for Decision on
Interlocutory Appeals Regarding
Continuation of Proceedings with a
Substitute Judge and on Nzirorera’s
Motion for Leave to Consider New
Material, 22 October
2004, 413, 415
Karemera et al. (ICTR-98-44-PT),
Decision on Severance of Andre´
Rwamakuba and for Leave to File
Amended Indictment, Articles 6,
11, 12 quater, 18 and 20 of the
Statute; Rules 47, 50 and 82(B) of
the Rules of Procedure and
Evidence, 14 February 2005, 312,
370, 373
Kayishema et al. (ICTR-95-1), 169–171,
173, 177, 180, 239, 266, 554
Kayishema et al. (ICTR-95-1-T),
Decision on the Joinder of the
Accused and Setting the
Date for Trial, 6 November
1996, 369
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
Kayishema et al. (ICTR-95-1-T),
Judgment and Sentence, 21 May
1999, 81, 95, 101, 138, 169, 172,
173, 174, 175, 177, 178, 190, 191,
192, 194, 195, 200, 222, 236, 237,
239, 249, 266, 268, 278, 293, 302,
305, 308, 309, 317, 321, 322, 323,
340, 341, 385, 436, 520, 554, 569,
570, 571, 572, 574, 576
Kayishema et al. (ICTR-95-1-A)
Judgment (Reasons), 1 June 2001,
99, 162, 165, 173, 294, 303, 336,
340, 341, 454, 466, 484, 514, 561
Kayishema et al. (ICTR-95-1A-T),
Judgment, 7 June 2001, 198
Kayishema et al. (ICTR-96-14-T),
Judgment and Sentence, 16 May
2003, 199
Kolundzˇija (IT-95-8-I and IT-98-30-PT),
Decision Rejecting Prosecutor’s
Request for Leave to Amend
Indictments, 6 July 1999, 363
Kondewa. See also Norman et al.
Kondewa (SCSL-04-14-AR72(E))
Decision on Challenge to
Jurisdiction: Lome´ Accord
Amnesty, 13 March 2004, 338
Kordic ´ et al. (IT-95-14/2), 70, 119, 199,
205, 216, 220, 262, 264, 265, 336,
346, 385, 430, 457, 460, 559, 560
Kordic ´ et al. (IT-95-14/2-T), Transcripts
T. 13694, 460
Kordic ´ et al. (IT-94-14/2-PT), Order on
Prosecutor’s Motion for Leave to
Withdraw the Indictment Against
Pero Skopljak, 19 December
1997, 375
Kordic ´ et al. (IT-95-14/2-PT), Order
Concerning Documents to be
Transmitted by the Defence to the
Judge Reviewing the Proposed
Amended Indictment, 26 August
1998, 363
Kordic ´ et al. (IT-95-14/2-PT), Decision on
the Motion of the Accused for
Access to Non-Public Materials in
the Lasˇva Valley and Related Cases,
12 November 1998, 453, 502
Kordic ´ et al. (IT-95-14/2-PT), Decision on
Accused Mario C
ˇ
erkez’s
Application for Separate Trial, 7
December 1998, 370
Kordic ´ et al. (IT-95-14/2-PT), Decision on
Defence Motion to Clarify, 15
January 1999, 404
Kordic ´ et al. (IT-95-14/2-PT), Order
on Motion to Compel
Compliance by the Prosecutor with
Rules 66(A) and 68, 26 February
1999, 520
Kordic ´ et al. (IT-95-14/2-PT), Decision on
Joint Defence Motion to Dismiss
All Allegations of Planning and
Preparation under Article 7(1) as
Outside the Jurisdiction of the
Tribunal or as Unenforceable, 1
March 1999, 65
Kordic ´ et al. (IT-95-14/2-PT), Decision on
Joint Defence Motion to Dismiss
the Amended Indictment Due
to the Illegal Foundation of
the Tribunal, 1 March
1999, 53, 78
Kordic ´ et al. (IT-95-14/2-PT), Decision on
the Joint Defence Motion to
Dismiss for Lack of Jurisdiction
Portions of the Amended
Indictment Alleging ‘Failure to
Punish’ Liability, 2 March 1999,
317
TA B L E O F C A S E S xxv
Kordic ´ et al. (IT-95-14/2-PT), Decision on
the Joint Defence Motion to
Dismiss the Amended Indictment
for Lack of Jurisdiction Based on
the Limited Jurisdictional Reach of
Articles 2 and 3, 2 March 1999, 81,
84, 99, 107, 230, 234, 235, 242, 257,
275, 277, 560
Kordic ´ et al. (IT-95-14/2-T), Decision on
Prosecution Request to Proceed by
Deposition, 13 April 1999, 476
Kordic ´ et al. (IT-95-14/2-T), Decision on
the Prosecution Application to
Admit the Tulica Report and
Dossier into Evidence, 29 July
1999, 454, 455
Kordic ´ et al. (IT-95-14/2-AR73.5),
Decision on Application for Leave
to Appeal and Scheduling Order,
28 March 2000, 457
Kordic ´ et al. (IT-95-14/2-PT), Decision
on Defence Motions for
Judgment of Acquittal, 6 April
2000, 119
Kordic ´ et al. (IT-95-14/2-AR73.5),
Decision on Appeal regarding
Statement of a Deceased Witness,
21 July 2000, 454, 456, 457, 462
Kordic ´ et al. (IT-95-14/2-AR73.6),
Decision in the Appeals Chamber
Regarding the Admission into
Evidence of Seven Adavits and one
Formal Statement, 18 September
2000, 81, 477
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26
February 2001, 66, 81, 95, 96,
172, 173, 188, 190, 191, 192, 194,
195, 196, 197, 199, 205, 217, 221,
229, 236, 237, 243, 244, 246, 248,
250, 251, 252, 253, 254, 262, 264,
268, 270, 271, 276, 277, 283, 298,
299, 300, 301, 302, 315, 316, 318,
319, 320, 321, 322, 323, 325, 335,
336, 346, 467, 485, 534, 559,
571, 580
Kordic ´ et al. (IT-95-14/2-AR73.5),
Decision on Appeal regarding
Statement of a Deceased Witness,
21 July 2001, 485, 572
Kordic ´ et al. (IT-95-14/2-A), Decision on
the Application by Mario C
ˇ
erkez
for Extension of Time to File his
Respondent’s Brief, 11 September
2001, 513
Kordic ´ et al. (IT-95-14/2-A), Judgment, 17
December 2004, 53, 82, 96, 106,
112, 173, 190, 191, 192, 193,
216, 220, 221, 222, 250, 264,
265, 275, 280, 283, 295, 336,
344, 346, 385, 434, 438, 444,
466, 514, 520, 548, 549, 558,
559, 560, 601
Kordic ´ et al. (IT-95-14/2-A), Joint
Dissenting Opinion of Judge
Schomburg and Judge Gu¨ney on
Cumulative Convictions, 17
December 2004, 437
Koroma (SCSL-03-I), Indictment, 3
March 2003, 270
Koroma (SCSL-03-I), Indictment, 7
March 2003, 375
Kovac ˇevic ´ (IT-97-24), 373, 396
Kovac ˇevic ´ (IT-97-24-I), Indictment, 13
March 1997, 177
Kovac ˇevic ´ (IT-97-24-I), Decision on
Prosecutor’s Request to File an
Amended Indictment, 5 March
1998, 371, 373
Kovac ˇevic ´ (IT-97-24-AR73), Decision
Stating Reasons for Appeals
Chamber’s Order of 29 May
1998, 374
Kovac ˇevic ´ (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 ˇevic ´ (IT-97-24-PT), Decision on
Defence Motion to Reconsider, 30
June 1998, 502
Kovac ˇevic ´ (IT-97-24-AR73), Separate
Opinion of Judge Shahabuddeen, 2
July 1998, 367, 503
Kovac ˇevic ´ (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 ˇevic ´ (IT-01-42/2-I), Decision on
Provisional Release, 2 June
2004, 390
Kovac ˇevic ´ (IT-01-42/2-PT), Order on the
Prosecutor’s Request for Referral to
National Authorities Under Rule 11
bis, 20 January 2005, 396
Krajisnik (IT-00-39 and IT-00-40),
394, 478
Krajisnik (IT-00-39 and 40-PT),
Judgment on Motion Challenging
Jurisdiction – With Reasons, 22
September 2000 101, 317
Krajisnik (IT-00-39 and 40-PT), Decision
on Prosecution Motion for
Clarification in Respect of
Application of Rules 65 ter, 66(B)
and 67(C), 1 August 2001, 400
Krajisnik (IT-00-39 and 40-PT), Decision
on Momcilo Krajisnik’s Notice of
Motion for Provisional Release, 8
October 2001, 393, 394, 518
Krajisnik (IT-00-39 and 40), Decision on
Prosecution’s Motion for Judicial
Notice of Adjudicated Facts and
Admission of Written Statements
of Witnesses Pursuant to Rule 92
bis, 28 February 2003, 492
Krajisnik (IT-00-39 and 40), Decision
Pursuant to Rule 15 bis (D), 16
December 2004, 413, 415
Krause v. Switzerland (App. No. 7986/77),
(1978) 13 DR 73, 519
Krnojelac (IT-97-25), 99, 100, 343, 401
Krnojelac (IT-97-25-PT), Decision on
the Defence Preliminary Motion on
the Form of the Indictment, 24
February 1999, 107, 359, 368,
520, 536
Krnojelac (IT-97-25-T), Order for
Testimony via Video-Conference
Link, 15 January 2001, 475
Krnojelac (IT-97-25-T), Judgment, 15
March 2002, 78, 93, 96, 100,
173, 174, 194, 195, 201, 205, 207,
208, 216, 217, 220, 221, 250, 281,
314, 316, 323, 480, 556, 571,
577, 601
Krnojelac (IT-97-25-A), Judgment, 17
September 2003, 204, 216, 258,
307, 309, 310, 343, 360, 362, 437,
444, 446, 467, 569
Krnojelac (IT-97-25-A), Separate Opinion
of Judge Shahabuddeen, 17
September 2003, 343
Krsmanovic ´ (IT-96-19-Misc.1), Decision
Concerning Serbo-Croatian
Interpretation, 29 March 1997, 532
Krstic ´ (IT-98-33), 64, 165, 167, 168, 169,
170, 175, 179, 184, 200, 204,
314, 324, 373, 436, 457, 519,
569, 572
Krstic ´ (IT-98-33-PT), Binding Order to
the Republika Srpska for the
Production of Documents, 12
March 1999, 468, 469, 487
Krstic ´ (IT-98-33-PT), Decision on the
Defence Preliminary Motion on the
Form of the Indictment, 6 May
1999, 359
Krstic ´ (IT-98-33-T), Judgment, 2 August
2001, 54, 101, 117, 163, 166, 168,
169, 171, 173, 176, 179, 183, 199,
200, 201, 204, 215, 217, 224, 229,
296, 298, 299, 301, 303, 314, 323,
324, 385, 436, 444–445, 480, 481,
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
Opinion of Judge Shahabuddeen,
19 April 2004, 162, 166
Kunarac et al. (IT-96-23 and IT-96-23/1),
202, 237, 342, 498, 553
Kunarac et al. (IT-96-23-PT), Order
Granting Leave to File an Amended
Indictment and Confirming the
Amended Indictment, 19 August
1998, 373
Kunarac et al. (IT-96-23-PT), Decision on
Joinder of Trials, 9 February
2000, 370
Kunarac et al. (IT-96-23-PT and IT-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 ˇkic ´ (IT-95-16), 89, 221, 283, 332,
344, 345, 359, 375, 385, 444, 454,
461, 483, 538, 559, 590
Kupres ˇkic ´ (IT-95-16-PT), Decision on
Motion by the Prosecutor for
Withdrawal of Indictment Against
Marinko Katava, 19 December
1997, 375
Kupres ˇkic ´ (IT-95-16-T), Decision on
Communication Between the
Parties and their Witnesses, 21
September 1998, 461, 473
Kupres ˇkic ´ (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 ˇkic ´ (IT-95-16-T), Decision, 11
January 1999, 353, 400, 406, 514
Kupres ˇkic ´ (IT-95-16-T), Decision On
Defence Motion to Summon
Witness, 8 February 1999, 469
Kupres ˇkic ´ (IT-95-16-T), Decision On
Prosecution and Defence Requests
to Proceed by Deposition, 11
February 1999, 476
Kupres ˇkic ´ (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 ˇkic ´ (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 ˇkic ´ (IT-95-16-AR73.3), Decision
on Appeal by Dragan Papic´ Against
Ruling to Proceed by Deposition,
15 July 1999, 477
Kupres ˇkic ´ (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 ˇkic ´ (IT-95-16-A), Decision on the
Motions of Drago Josipovic´, Zoran
Kupresˇkic´ and Vlatko Kupresˇkic´ to
Admit Additional Evidence
pursuant to Rule 115 and for
Judicial Notice to be taken
pursuant to Rule 94(B), 29 May
2001, 483, 492, 493
Kupres ˇkic ´ (IT-95-16-A), Appeal
Judgment, 23 October 2001, 89,
110, 136, 218, 299, 332, 359, 434,
435, 444, 445, 446, 454, 468, 480,
481, 484, 499, 500, 520,
553, 575
Kupres ˇkic ´ (IT-96-16-T), Request by
Zoran Kupresˇkic´, 21 December
2001, 538
Kvoc ˇka et al. (IT-98-30/1), 207, 208, 212,
272, 303, 312, 390, 475
Kvoc ˇka et al. (IT-98-30/1-PT), Decision
on Preliminary Motions Filed by
Mladko Radic´ and Miroslav Kvocˇka
Challenging Jurisdiction, 1 April
1999, 234
Kvoc ˇka et al. (IT-98-30-PT), Decision on
Defence Preliminary Motions on
the Form of the Indictment, 12
April 1999, 108, 361
Kvoc ˇka et al. (IT-98-30-PT and IT-95-8-
PT), Decision on Prosecutor’s
Motion for Joinder, 19 October
1999, 371
Kvoc ˇka et al. (IT-98-30-PT), Decision on
Motion for Provisional Release of
Miroslav Kvocˇka, 2 February
2000, 393
Kvoc ˇka et al. (IT-98-30-T and IT-95-4-
PT), Decisions on Prosecution
Motion to Join Trials, 14 April
2000, 370, 371
Kvoc ˇka et al. (IT-98-30/1-T), Decision on
Judicial Notice, 8 June 2000, 493
Kvoc ˇka et al. (IT-98-30/1-T), Decision on
the Defence of Alibi for the
Accused Zoran Z
ˇ
igic´, 21 July
2000, 400
Kvoc ˇka et al. (IT-98-30/1-T), Decision on
the Defence ‘Motion Regarding
Concurrent Procedures Before
International Criminal Tribunal for
the former Yugoslavia and
International Court of Justice on
the Same Questions’, 5 December
2000, 112
Kvoc ˇka et al. (IT-98-30/1-T), Decision on
Defence Motions for Acquittal, 15
December 2000, 431
Kvoc ˇka 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 ˇka et al. (IT-98-30/1-A), Decision on
Review of Registrar’s Decision to
Withdraw Legal Aid from Zoran
Z
ˇ
igic´, 7 February 2003, 465, 524
Kvoc ˇka 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 ˇka 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 Musliu’s Request for
Provisional Release, 31 October
2003, 95, 332–334
Limaj et al. (IT-03-66-PT), Second
Amended Indictment, 6 November
2003, 189, 231, 278, 312, 482
Llandovery Castle case (Empire v. Dithmar
and Boldt, (1921) 2 ILR 437), 330
Lotus case (France v. Turkey, [1927] PCIJ
Ser. A. (Judgments) No. 10
(Judgment No. 9) (1929)), 67, 154,
232–236, 532
Maleki v. Italy (No. 699/1996), UN Doc.
CCPR/C/66/D/699/1996, 27 July
1999, 419
Mansaraj et al. v. Sierra Leone (Nos. 839,
840 and 841/1998), UN Doc.
CCPR/C/64/D/839, 840 and 841/
19, 546
Martic ´ (IT-95-11-R61), Review of the
Indictment Under Rule 61, 8
March 1996, 283
Mbenge v. Zaire (No. 16/1977), UN Doc.
CCPR/C/OP/2, 25 March 1983, 419
MC v. Bulgaria (App. No. 392 72/98),
Judgment, 4 December
2003, 46
Media case. See Nahimana et al.
Mehinovic v. Vuckovic, 198 F.Supp.2d
1322, 1344 (ND GA, 2002), 45
Milos ˇevic ´ et al. (IT-99-37), 149, 312, 327,
328, 361, 364, 367
Milos ˇevic ´ (IT-01-51), 367
Milos ˇevic ´ (IT-02-54), 231, 268,
367, 422, 494, 515,
528–530
Milos ˇevic ´ et al. (IT-99-37-PT),
Indictment, 22 May 1999, 327
Milos ˇevic ´ et al. (IT-99-37-I), Decision on
Review of Indictment and
Application for Consequential
Orders, 24 May 1999, 149, 364
Milos ˇevic ´ (IT-01-50-I), Indictment, 8
October 2001, 521
Milos ˇevic ´ et al. (IT-99-37-PT), Second
Amended Indictment, 16 October
2001, 312, 361
Milos ˇevic ´ (IT-02-54-PT), Decision on
Preliminary Motions, 8 November
2001, 50, 63, 92, 97, 99, 107, 159,
328, 539, 542, 621
Milos ˇevic ´ (IT-01-51-I), Indictment, 22
November 2001, 19, 68, 212, 361
Milos ˇevic ´ (IT-99-37-PT, IT-01-50-PT and
IT-01-51-PT), Decision on
Prosecutor’s Motion for Joinder, 13
December 2001, 367
Milos ˇevic ´ (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 ˇevic ´ (IT-02-54-T), Public Version of
the Confidential Decision on the
Prosecutor’s Motion to Grant
Specific Protection Pursuant to
Rule 70, 25 July 2002, 487
Milos ˇevic ´ (IT-02-54-AR73.2), Decision on
Admissibility of Prosecution’s
xxx TA B L E O F C A S E S
Investigator Evidence, 30
September 2002, 455
Milos ˇevic ´ (IT-02-54-T), Order on
Prosecution Motion for the
Testimony of Nojko Marinovic´ via
Video-Conference Link, 19
February 2003, 475
Milos ˇevic ´ (IT-02-54-T), Decision on
Prosecution Motion for Protective
Measures (Concerning a
Humanitarian Organisation),
Public Version of a Confidential
Decision Filed 13 March 2003, 1
April 2003, 515
Milos ˇevic ´ (IT-02-54-T), Reasons for
Decision on the Prosecution
Motion Concerning Assignment of
Counsel, 4 April 2003, 494, 528
Milos ˇevic ´ (IT-02-54-AR73.4), Dissenting
Opinion of Judge David
Hunt, 30 September
2003, 43, 414
Milos ˇevic ´ (IT-02-54-AR73.5), Decision on
the Prosecution’s Interlocutory
Appeal Against the Trial Chamber’s
10 April 2003 Decision on
Prosecution Motion for Judicial
Notice of Adjudicated Facts, 28
October 2003, 492
Milos ˇevic ´ (IT-02-54-AR73.5), Dissenting
Opinion of Judge David Hunt, 28
October 2003, 517
Milos ˇevic ´ (IT-02-54-AR73.5), Separate
Opinion of Judge Shahabuddeen
Appended to the Appeals
Chamber’s Decision dated 28
October 2003 on the Prosecution’s
Interlocutory Appeal against
the Trial Chamber’s 10 April
2003 Decision on Prosecution
Motion for Judicial Notice of
Adjudicated Facts, 28 October
2003, 492
Milos ˇevic ´ (IT-02-54-T), Final Decision on
Prosecution Motion for Judicial
Notice of Adjudicated Facts, 16
December 2003, 490
Milos ˇevic ´ (IT-02-54-T), Decision on
Motion for Judgment of
Acquittal, 16 June 2004,
94, 189, 204, 231, 234,
278, 449, 453, 480,
481, 482
Milos ˇevic ´ et al. (IT-99-37-PT), Second
Amended Indictment, 28 July
2004, 133
Milos ˇevic ´ (IT-02-54-T), Order on the
Modalities to be Followed by Court
Assigned Counsel, 3 September
2004, 397
Milos ˇevic ´ (IT-02-54-T), Reasons for
Decision on Assignment of Defence
Counsel, 22 September 2004, 422,
494, 495, 516, 529
Milos ˇevic ´ (IT-02-54-AR73.7), Decision on
Interlocutory Appeal of the Trial
Chamber’s Decision on the
Assignment of Defence Counsel,
1 November 2004, 397, 422,
530, 621
Milos ˇevic ´ (IT-02-54-T), Decision on
Assigned Counsel’s Motion for
Withdrawal, 7 December
2004, 87, 116
Milos ˇevic ´ (IT-02-54-T), Decision
Arming the Registrar’s Denial of
Assigned Counsel’s Application to
Withdraw, 7 February 2005, 528
Milos ˇevic ´ v. The Netherlands (App. No.
77631/01), Admissibility Decision,
19 March 2002, 543
Milos ˇevic ´ v. The Netherlands, Case No.
KG. 01/975, ELRO No. AD
3266, 543
Milutinovic ´ et al. (IT-99-37-AR72),
Decision on Draguljob Ojdanic´’s
TA B L E O F C A S E S xxxi
Motion Challenging Jurisdiction –
Joint Criminal Enterprise, 21 May
2003, 31–32, 310, 314, 327
Milutinovic ´ et al. (IT-99-37-AR73.2),
Decision on Interlocutory Appeal
on Motion for Additional Funds,
13 November 2003, 3, 83, 514, 620
Milutinovic ´ et al. (IT-99-37-AR72.2),
Reasons for Decision Dismissing
Interlocutory Appeal Concerning
Jurisdiction over the Territory of
Kosovo, 8 June 2004, 130, 560
Miranda v. Arizona, 384 US 436
(1966), 460
M’Naghten’s Case, (1843) 10 Cl. & Fin
200, 8 ER 718, 195, 333
Mpambara (ICTR-2001-65-I), De´cision
(Requeˆte de la De´fens aux fins de la
mise en liberte´ de l’Accuse´), 22
October 2002, 391, 555
Mrda (IT-02-59-S), Sentencing
Judgment, 31 March 2004, 331,
560, 569, 577, 581
Mrksic ´ et al. (IT-95-13-R61), Review of
Indictment Pursuant to Rule 61, 3
April 1996, 133, 191, 194
Mrksic ´ et al. (IT-95-13/1-PT), Order
Terminating Proceedings Against
Salvko Dokanovic´, 15 July
1998, 371
Mrksic ´ et al. (IT-95-13/1-AR65), Decision
on Appeal against Refusal to Grant
Provisional Release, 8 October
2002, 392
Mucic ´. See Delalic ´ et al.
Mucic ´ et al. (IT-96-21-Abis),
Judgment on Sentence Appeal,
8 April 2003, 552
Mugenzi et al. (ICTR-99-50-I), Decision
on Justin Mugenzi’s Motion for
Stay of Proceedings or in the
Alternative Provisional Release
(Rule 65) and in Addition
Severance (Rule 82(B)), 8
November 2002, 391, 574
Mugesera v. Canada, [2003] FCJ 1292,
[2003] FCA 325 (CA), 45, 138, 181,
329, 396
Mugiraneza (ICTR-99-50-AR73),
Decision on Prosper Mugiraneza’s
Interlocutory Appeal from Trial
Chamber II Decision of 2 October
2003 Denying the Motion to
Dismiss the Indictment, Demand
Speedy Trial and for Appropriate
Relief, 27 February 2004, 522
Muhimana (ICTR-95-I-B-I), De´cision
(Requeˆte de la De´fense aux fins de
la mise en liberte´ provisoire de
l’Accuse´), 1 October 2002, 393
Muhimana (ICTR-1995-1B-I), Decision
on Motion to Leave to Amend
Indictment, 21 January 2004, 372
Musabyimana (ICTR-2001-62-T),
Decision on Samuel
Musabyimana’s Motion to
Exclude Anonymous Prosecutorial
Witness Statements and to Review
the Decision on Confirmation of
the Indictment, 9 September
2002, 474
Musema (ICTR-96-13), 149, 228, 278,
434, 436, 456, 482, 550
Musema (ICTR-96-13-T), Judgment, 17
January 2000, 81
Musema (ICTR-96-13-T), Judgment and
Sentence, 27 January 2000, 92, 95,
109, 162, 173, 175, 177, 178, 180,
190, 191, 192, 194, 199, 205, 209,
214, 236, 237, 239, 250, 268, 271,
272, 278, 293, 296, 301, 304, 305,
322, 340, 341, 358, 385, 455, 456,
480, 482, 497, 552, 556, 561, 569
Musema (ICTR-96-13-A), Judgment,
16 November 2001, 434, 436, 447,
484, 550
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),
Decision on the Defence Motion
for the Release or Alternatively
Provisional Release of Ferdinand
Nahimana et al., 13 June 2001, 393
Nahimana et al. (ICTR-99-52-I),
Decision on the Defence’s Request
to have the Report and the
Testimony of Expert Witness Jean
Pierre Chre´tien Declared
Inadmissible, 31 January 2002, 404
Nahimana et al. (ICTR-99-52-T),
Judgment and Sentence, 3
December 2003, 45, 82, 95, 135,
136, 137, 138, 180, 181, 182, 183,
216, 217, 219, 220, 258, 300, 321,
322, 368, 422, 436, 437, 470,
503, 569
Naletilic ´ et al. (IT-98-34), 244, 274
Naletilic ´ et al. (IT-98-34-PT), Decisions
on Prosecution Amended Motion
for Approval of Rule 94 ter
Procedure (Formal Statements)
and on Prosecutor’s Motion to take
Depositions for Use at Trial (Rule
71), 10 November
2000, 476, 477
Naletilic ´ et al. (IT-98-34-PT), Decision on
the Request of the Accused to be
Given the Opportunity to be
Interrogated Under Application of
a Polygraph, 27 November 2000,
457, 462
Naletilic ´ et al. (IT-98-34-T), Decision on
Prosecutor’s Motion to Permit
Investigators to Follow the
Proceedings, 30 April 2001, 515
Naletilic ´ et al. (IT-98-34-T), Judgment, 31
March 2003, 190, 191, 192, 194,
216, 222, 246, 250, 251, 252, 253,
255, 258, 261, 263, 264, 265, 268,
274, 299, 300, 319, 323, 509, 567,
569, 571
Naletilic ´ v. Croatia
(App. No. 51891/99), 544
Ndayambaje (ICTR-98-42-T), Decision
on the Defence Motion for the
Provisional Release of the Accused,
21 October 2002, 391
Ndayambaje (ICTR-98-42-T), Decision
on Prosecutor’s Motion for Site
Visits in the Republic of Rwanda
Under Rules 4 and 73 of the Rules
of Procedure and Evidence, 23
September 2004, 590
Netherlands v. Belgium, [1937] PCIJ
Reports, Series A/B, No. 70, 103
Ngeze et al. (ICTR-96-11), 136, 182
Ngeze et al. (ICTR-97-27-I), Decision on
the Prosecutor’s Request for Leave
to Amend the Indictment, 5
November 1999, 136
Ngeze et al. (ICTR-96-11-AR72),
Decision on the Interlocutory
Appeals, 5 September 2000, 136
Ngeze et al. (ICTR-96-11-AR72), Joint
Separate Opinion of Judge Lal
Chand Vohrah and Judge Rafael
Nieto-Navia, 5 September 2000,
135, 136, 137
Ngeze et al. (ICTR-96-11-AR72), Separate
Opinion of Judge Shahabuddeen, 5
September 2000, 136
Nicaragua v. US (Merits),
[1986] ICJ Reports 14,
243–245, 265
Nikolic ´, Dragan (IT-94-2),
374, 541
Nikolic ´, Dragan (IT-94-2-R61), Review of
Indictment Pursuant to Rule 61, 20
October 1995, 163, 374, 382
Nikolic ´, Dragan (IT-94-2-I), Order
Confirming the Amended
Indictment, 12 February 1999, 374
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),
Decision on Interlocutory Appeal
Concerning Legality of Arrest, 5
June 2003, 151, 381, 541, 542
Nikolic ´, Dragan (IT-94-2-S), Sentencing
Judgment, 18 December 2003, 73,
106, 352, 353, 427, 428, 466, 523,
554, 557, 566, 568, 569, 570, 572,
573, 574, 575
Nikolic ´, Dragan (IT-94-2-A), Judgment
on Sentencing Appeal, 4 February
2005, 23, 281, 427, 440, 545, 554,
558, 570, 583
Nikolic ´, Dragan (IT-94-2-A), Partial
Dissenting Opinion of Judge
Shahabuddeen, 4 February
2005, 583
Nikolic ´, Momir (IT-02-60 and IT-02-60/
1), 73, 82, 210, 353, 554, 557
Nikolic ´, Momir (IT-02-60-PT), Amended
Plea Agreement, 533
Nikolic ´, Momir (IT-02-60/1-T), Decision
on Motion to Dismiss Charges
Against Momir Nikolic´, 12 May
2003, 335, 372
Nikolic ´, Momir (IT-02-60/1-S),
Sentencing Judgment, 2 December
2003, 69, 70, 513, 547,
553, 557, 558, 560, 573, 574
Niyitegeka (ICTR-96-14), 172, 180,
383–386, 533, 550
Niyitegeka (ICTR-96-14-T), Decision on
the Prosecutor’s Amended
Extremely Urgent Motion for the
Deposition of a Detained Witness
Pursuant to Rule 71, 4 October
2001, 476
Niyitegeka (ICTR-96-14-T), Decision to
Adjourn Proceedings Due to the
Unavailability of Witnesses, 19 June
2002, 357, 470
Niyitegeka (ICTR-96-14-T), Decision on
the Prosecutor’s Motion for
Judicial Notice of Facts (Rule 94
of the Rules of Procedure
and Evidence), 4 September 2002,
40, 491
Niyitegeka (ICTR-96-14-T), Order for the
Transfer of Prosecution Witness KJ,
10 October 2002, 470
Niyitegeka (ICTR-96-14-T), Judgment
and Sentence, 16 May 2003, 109,
180, 181, 182, 192, 194, 199, 299,
321, 516, 533, 552, 557, 568, 575,
576, 603
Niyitegeka (ICTR-96-14-A), Appellant’s
Brief, 23 December 2003, 550
Niyitegeka (ICTR-96-14-A), Judgment,
9 July 2004, 64, 81, 112,
162, 172, 218, 295, 444,
446, 466, 484, 550, 561
Niyonteze, Military Court of Cassation,
27 April 2001, 46
Norac (IT-04-76-I), Decision on the
Prosecutor’s Motion to Oppose the
Initial Appearance of Mirko Norac,
30 June 2004, 389
Norman (SCSL-03-08), 509–510, 534
Norman (SCSL-04-14), 531
Norman (SCSL-03-08-PT), Decision on
the Request by the Truth and
Reconciliation Commission of
Sierra Leone to Conduct a Public
Hearing with Samuel Hinga
Norman, 29 October 2003, 91, 411
Norman (SCSL-03-08-PT), Decision on
the Applications for a Stay of
Proceedings and Denial of Right to
Appeal, 4 November 2003, 85, 404
Norman (SCSL-03-08-PT), Decision on
Appeal by the Truth and
Reconciliation Commission for
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 TRC’s Request to Hold a
Public Hearing With Chief Samuel
Hinga Norman JP, 28 November
2003, 120
Norman (SCSL-03-08-PT, SCSL-03-011-
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
Norman (SCSL-04-14-AR72(E)),
Separate Opinion of Justice Georey
Robertson, 13 March 2004, 274,
506, 508, 509, 569
Norman (SCSL-04-14-PT), Norman –
Decision on inter partes motion by
Prosecution to freeze the Account
of the Accused Sam Hinga Norman
at Union Trust Bank (SL) Limited
or at any other Bank in Sierra
Leone, 19 April 2004, 365
Norman (SCSL-04-14-PT), Judge
Winter’s Response to Motion to
Recuse her from Deliberating on
the Preliminary Motion on the
Recruitment of Child Soldiers, 14
May 2004, 516
Norman (SCSL-04-14-PT), Decision on
the Motion to Recuse Judge Winter
from the Deliberation in the
Preliminary Motion on the
Recruitment of Child Soldiers, 28
May 2004, 418, 516
Norman (SCSL-04-14-AR72(E)),
Decision on Preliminary Motion
Based on Lack of Jurisdiction
(Child Recruitment), 31 May 2004,
67, 93, 96, 285
Norman (SCSL-04-14-AR72(E)),
Dissenting Opinion of Justice
Robertson, 31 May 2004, 82,
84, 285
Norman (SCSL-04-14-PT), Decision on
the Application of Sam Hinga
Norman for Self-Representation
Under Article 17(4) (d) of the
Statute of the Special Court, 8 June
2004, 531
Norman (SCSL-04-14-PT), Decision
on Request by Samuel Hinga
Norman for Additional Resources
to Prepare his Defence, 23 June
2004, 610
Norman (SCSL-04-14-PT), Decision on
Prosecution’s Motion for Judicial
Notice and Admission of Evidence,
24 June 2004, 489, 490
Norman (SCSL-04-14-T), Sesay –
Decision on Confidential Motion
Seeking Disclosure of
Documentation Relating to
the Motion on the Recruitment
of Child Soldiers, 28 July
2004, 516
Norman et al. (SCSL-04-14-PT), Ruling
on the Issue of Non-Appearance
of the First Accused Samual
Hinga Norman, the Second
Accused Moinina Fofana, and the
Third Accused, Allieu Kondewa
at the Trial Proceedings,
1 October 2004, 410, 418,
422, 531, 570
Norman (SCSL-04-14), Decision
Prohibiting Visits, 8 November
2004, 611
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 Prosecution’s
Motion for Judicial Notice and
Admission of Evidence, 16 May
2005, 93, 478, 479, 489, 490,
491, 493
Norman (SCSL-04-14-AR73), Decision
on Amendment of the
Consolidated Indictment, 16 May
2005, 404
Norman (SCSL-04-14-AR73), Separate
Opinion of Justice Robertson,
16 May 2005, 479, 488,
489, 493
Norman (SCSL-04-14-AR73), Decision
on Amendment of the
Consolidated Indictment, 17 May
2005, 81, 108, 524
North Sea Continental Shelf Cases, [1969]
ICJ Reports 4, 98
Nsabimana et al. (ICTR-98-42-T),
Decision on the Prosecutor’s
Motion for Judicial Notice and
Admission of Evidence, 15 May
2002, 489, 491
Nsengiyumva (ICTR-96-12), 137
Nsengiyumva (ICTR-96-12-A),
Dissenting Opinion of Judge
Shahabuddeen, 3 June
1999, 80, 113
Nsengiyumva (ICTR-96-12-A), Joint
Separate and Concurring Opinion
of Judge Wang and Judge 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),
Decision on the Defence Motion
for Annulment of Proceedings,
Release and Return of Personal
Items and Documents, 25
September 1998, 377
Ntabakuze et al. (ICTR-97-34-I),
Decision on the Defence Motion
Requesting an Order for
Separate Trials, 30 September
1998, 366
Ntagerura et al. (ICTR-99-46-T),
Decision on Ntagerura’s Extremely
Urgent Motion for Order to
Transfer an Accused from the
Detention Facility in order to
Testify for the Defence, Pursuant to
Rules 73 and 54 of the Rules of
Procedure and Evidence, 16 April
2002, 206, 473
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 Ntahobali’s Motion to
Rule Inadmissible the Evidence of
Witness TN, 1 July 2002, 404, 405
Ntakirutimana et al. (ICTR-96-10 and
ICTR-96-17), 184, 199, 536
Ntakirutimana et al. (ICTR-96-10-T and
ICTR-96-17-T), Decision on the
Motions of the Accused for
Replacement of Assigned
Counsel, 11 June 1997,
525, 526
Ntakirutimana et al. (ICTR-96-10-T
and ICTR-96-17-T), Decision
on the Prosecutor’s Motion for
Judicial Notice of Adjudicated
Facts, 22 November 2001, 106, 491
Ntakirutimana et al. (ICTR-96-10 and
ICTR-96-17-T), Judgment, 21
February 2003, 180, 192, 198, 199,
200, 255, 258, 293, 303, 307, 322,
349, 368, 436, 512, 552, 557, 569,
576, 577
Ntakirutimana et al. (ICTR-96-10-A and
ICTR-96-17-A), Judgment, 13
December 2004, 83, 112, 164,
168, 187, 200, 306, 307,
310, 311, 360, 361, 444, 446,
516, 520
In re Ntakirutimana, 998 F.Supp.1038 (SD
TX, 1997), 357, 380
Ntakirutimana v. Reno, 184 F.3d 419 (5th
Cir., 1999), cert. denied, 528 US
1135 (2000), 357, 380
Ntuyahaga (IT-95-16-PT), Decision on
Motion by the Prosecutor for
Withdrawal of Indictment Against
Marinko Katava, 19 December
1997, 375
Ntuyahaga (ICTR-98-40-T), Decision on
the Prosecutor’s Motion to
Withdraw the Indictment, 18
March 1999, 85, 106, 162, 363, 376,
407, 411, 440, 620
Ntuyahaga (ICTR-98-40-T), Declaration
on a Point of Law by Judge Laı ¨ty
Kama, President of the Tribunal,
Judge Lennert Aspergren and Judge
Navanethem Pillay, 22 April
1999, 608
Ntuyahaga (ICTR-98-40-A), Decision
Rejecting Notice of Appeal, 3 June
1999, 503
Nulyarimma v. Thompson, (1999) 96 FCR
153, 46
Nyiramasuhuko (ITCR-97-21 and 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),
Decision on the Prosecutor’s
Motion for Judicial Notice and
Admission of Evidence, 15 May
2000, 462, 490
Nyiramasuhuko (ICTR-98-42-T),
Transcript, 21 March 2002, 143,
403
Nyiramasuhuko (ICTR-98-42-T),
Decision on the Prosecutor’s
Motion for Judicial Notice and
Admission of Evidence, 15 May
2002, 40, 106, 491
Nyiramasuhuko (ICTR-97-21-T),
Decision on the Application by
Arse`ne Shalom Ntahobali for
Review of the Registrar’s Decisions
Pertaining to the Assignment of an
TA B L E O F C A S E S xxxvii
Investigator, 13 November
2002, 527
Nyiramasuhuko (ICTR-98-42-T),
Decision in the Matter of
Proceedings under Rule 15 bis (D),
15 July 2003, 414
Nyiramasuhuko (ICTR-98-42-A15bis),
Decision in the Matter of
Proceedings Under Rule 15
bis (D), 24 September
2003, 413, 572
Nyiramasuhuko (ICTR-98-42-A15bis),
Dissenting Opinion of David
Hunt, 30 September
2003, 414
Nyiramasuhuko (ICTR-98-42-T),
Decision on Defence Motions for
Acquittal Under Rule 98 bis, 16
December 2004, 180
Obrenovic ´ (IT-02-60-T), Plea
Agreement, 533
Obrenovic ´ (IT-02-60/2-S), Judgment, 10
December 2003, 574
Ojdanic ´ (IT-99-37-AR73.2), Decision on
Interlocutory Appeal on Motion
for Additional Funds, 13 November
2003, 617
Perera v. Australia (No. 536/1993), UN
Doc. CCPR/C/53/D/536/1993, 28
March 1995, 440
Pinochet case (R v. Bartle and the
Commissioner of Police for the
Metropolis and others, ex parte
Pinochet Ugarte), [1999] 2 All ER
97 (HL), 159, 621
Pinochet case (R v. Bow Street
Stipendiary Magistrate and others,
ex parte Pinochet Ugarte (No. 2)),
[1999] 1 All ER 577 (HL), 311, 622
Plavs ˇic ´ (IT-00-39 and
IT-00-40/1), 565
Plavs ˇic ´ (IT-00-39 and 40/1), Sentencing
Judgment, 27 February 2003, 299,
336, 413, 481, 533, 565, 568, 572,
573, 574, 575, 576, 577
Pohl case (United States v. Pohl et al.,
(1948) 5 TWC 1 (United States
Military Tribunal)), 464
Presbyterian Church of Sudan v. Talisman
Energy, 226 FRD 456 (SD NY,
2005), 45
R v. Bartle and the Commissioner
of Police for the Metropolis and
others, ex parte Pinochet
Ugarte, [1999] 2 All ER 97 (HL),
159, 621
R v. Bow Street Stipendiary Magistrate and
others, ex parte Pinochet Ugarte
(No. 2), [1999] 1 All ER 577 (HL),
311, 622
R v. Campbell, [2004] CarswellOnt 2170
(Ont. SCJ), 45
R v. Finta, [1994] 1 SCR 701, 44,
45, 173, 195
R v. Logan, [1990] 2 SCR 731, 313
R v. Rodney, [1990] 2 SCR 687, 313
Rajic ´ (IT-95-12), Decision, 29 August
1995, 353
Rajic ´ (IT-95-12-R61), Review of the
Indictment Pursuant to Rule 61
of the Rules of Procedure and
Evidence, 13 September 1996,
245, 346, 382, 620
In re Rauter, (1949) 16 ILR 526 (the
Netherlands, Special Criminal
Court), 279
Renzaho (ICTR-97-31-DP), Decision on
the Prosecutor’s Request for the
Extension of the Suspect’s
Detention (Rule 40 bis (F) of the
Rules of Procedure and Evidence),
4 November 2002, 379
Republic of the Congo v. France, 157
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
Prosecutor’s Request for Deferral
and Motion for Order to the
Former Yugoslav Republic of
Macedonia, 4 October 2002, 386
Roper v. Simmons, 125 SCt 1183
(2005), 119
Ruggiu (ICTR-97-32), 426
Ruggiu (ICTR-97-32-I), Decision on
the Defence Motion for Restitution
of Personal Eects, 7 July 1998, 89,
358, 502
Ruggiu (ICTR-97-32-I), Judgment and
Sentence, 1 June 2000, 182, 194,
216, 217, 572, 573, 574, 576
Ruggiu (ICTR-97-32-T), Judgment, 1
June 2000, 426, 465, 567
Rusatira (ICTR-2002-80-I), Decisions on
the Prosecutor’s ex parte
Application for Leave to Withdraw
the Indictment, 14 August
2002, 375
Rutaganda (ICTR-96-3), 117, 239,
461, 570
Rutaganda (ICTR-96-3-T), Judgment and
Sentence, 6 December 1999, 81, 95,
96, 164, 173, 175, 178, 190, 191,
192, 194, 199, 214, 222, 229, 230,
236, 237, 255, 258, 278, 293, 296,
298, 303, 305, 368, 385,
444–445, 465, 480, 485, 497,
546, 556, 566, 567, 568,
569, 571, 575, 576, 607
Rutaganda (ICTR-96-3-A), Judgment, 26
May 2003, 162, 231, 239, 340, 361,
444, 447, 462, 479, 484, 549, 561
Rutaganda (ICTR-96-3-A), Dissenting
Opinion of Judge Pocar, 26 May
2003, 118
Rutaganda (ICTR-96-3-A), Separate
Opinion of Judge Shahabuddeen,
26 May 2003, 440
Rutaganda (ICTR-98-44A-A), Judgment,
23 May 2005, 449
Rutaganira (ICTR-95-1C-0022),
Jugement portant condamnation,
14 March 2005, 426
Ruzindana. See Kayishema et al.
Rwamakuba (ICTR-98-44), 370
Rwamakuba (ICTR-98-44-T), Decision
on Andre´ Rwamakuba’s Motion for
Severance, 12 December 2000, 370
Rwamakuba (ICTR-98-44-AR72.4),
Decision on Interlocutory Appeal
Regarding Application of Joint
Criminal Enterprise to the
Crime of Genocide, 22 October
2004, 94, 313
Sainovic ´ et al. (IT-99-37-PT), Decision on
Applications of Nikola Sainovic´
and Dragoljub Ojdanic´ for
Provisional Release, 26 June 2002,
395
Sainovic ´ et al. (IT-99-37-AR65), Decision
on Provisional Release, 30 October
2002, 391
Sankoh (SCSL-03-02), 417
Sankoh (SCSL-02-I), Indictment, 3 March
2003, 219, 375
Sankoh (SCSL-03-02-PT), Withdrawal of
Indictment, 8 December 2003, 270
Schonfeld et al., (1948) 11 LRTWC 64
(British Military Court), 301
Semanza (ICTR-97-20), 184, 200, 219,
324, 489, 543
Semanza (ICTR-97-20-A), Separate
Opinion of Judge Shahabuddeen,
31 May 2000, 110
Semanza (ICTR-97-20), Decision on
the Prosecutor’s Motion for
Judicial Notice and Presumptions
of Facts Pursuant to Rules 94
and 54, 3 November 2000,
489, 491
TA B L E O F C A S E S xxxix
Semanza (ICTR-97-20-A), Arreˆt (Requeˆte
en re´vision de la de´cision de la
Chambre d’appel du 31 mai 2000),
4 May 2001, 451
Semanza (ICTR-96-4-A), Judgment, 1
June 2001, 300
Semanza (ICTR-97-20-T), Decision on
the Prosecutor’s Motion for Leave
to Call Rebuttal Evidence and the
Prosecutor’s Supplementary
Motion for Leave to Call
Rebuttal Evidence, 27 March
2002, 429
Semanza (ICTR-97-20-T), Decision on
Defence Motion for Leave to Call
Rejoinder Witnesses, 30 April
2002, 461
Semanza (ICTR-97-20-T), Judgment
and Sentence, 15 May 2003, 65, 83,
109, 166, 169, 182, 183, 190, 192,
194, 197, 198, 200, 207, 210, 219,
220, 230, 236, 237, 268, 270, 292,
299, 303, 305, 307, 308, 319, 324,
463, 480, 548, 549, 552, 561, 568,
575, 603
Semanza (ICTR-97-20-T), Separate
and Dissenting Opinion of
Judge Pavel Dolenc, 15 May
2003, 435
Serushago (ICTR-98-39), 426, 562
Serushago (ICTR-98-39-T), Decision
Relating to a Plea of Guilty, 14
December 1998, 335, 372
Serushago (ICTR-98-39-S), Sentence, 5
February 1999, 54, 162, 321, 426,
465, 546, 561, 562, 567, 568, 571,
572, 573, 574, 575, 576, 577
Serushago (ICTR-98-39-A), Decision, 6
April 2000, 577
Serushago (ICTR-98-39-A), Reasons for
Judgment, 6 April 2000, 426
Sesay (SCSL-03-05-PT), Decision, 23 May
2003, 108
Sesay et al. (SCSL-03-05-PT, SCSL-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
Disqualification of Justice
Robertson from the Appeals
Chamber, 13 March 2004, 417,
508, 516
Sesay (SCSL-04-15-PT), Amended
Consolidated Indictment, 13 May
2004, 213, 227, 270, 271, 279, 280,
281, 284
Sesay (SCSL-04-15-AR65), Decision on
Appeal Against Refusal of Bail, 14
December 2004, 390
Sesay (SCSL-04-15-T), Ruling on the
Issue of the Refusal of the Accused
Sesay and Kallon to Appear for
their Trial, 19 January 2005, 410,
418, 422, 570
S
ˇ
es ˇelj (IT-03-67), 365, 395, 417, 529, 530
S
ˇ
es ˇelj (IT-03-67-PT), Decision on
Prosecution’s Motion for Order
Appointing Counsel to Assist
Vojislav S
ˇ
esˇelj with his Defence, 9
May 2003, 494, 529, 621
S
ˇ
es ˇelj (IT-03-67-PT), Decision on Motion
for Disqualification, 10 June 2003,
405, 418
S
ˇ
es ˇelj (IT-03-67-PT), Decision, 30
September 2003, 610, 611
S
ˇ
es ˇelj (IT-03-67-AR73.2), Decision on the
Interlocutory Appeal Concerning
the Denial of a Request for a
Visit to an Accused in the
Detention Unit, 29 January
2004, 611
S
ˇ
es ˇelj (IT-03-67-AR72.1), Decision on the
Interlocutory Appeal Concerning
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 Prosecutor’s Requests
for the Assignment of a
Confirming Judge, 26 August
1998, 363
Sikirica et al. (IT-95-8-T), Decision on
Prosecution’s Application to Admit
Transcripts under Rule 92 bis, 23
May 2001, 477
Sikirica et al. (IT-95-8-T), Judgment on
Defence Motions to Acquit, 3
September 2001, 73, 165, 169, 170,
177, 432, 462, 481
Sikirica et al. (IT-95-8-T), Sentencing
Judgment, 13 November 2001, 389,
466, 533, 549, 563, 568, 573,
574, 575
Sikirica et al. (IT-95-8-S), Order of the
President on the Early Release of
Dragan Kolundzija, 5 December
2001, 116
Simba (ICTR-2001-76-I), Decision on
Motion to Amend Indictment, 26
January 2004, 372
Simba (ICTR 01-76-I), Decision
on Preliminary Defence
Motion Regarding Defects in the
Form of the Indictment, 6 May
2004, 137
Simic ´ et al. (IT-95-9 and IT-95-9/2), 390
Simic ´ et al. (IT-95-9-PT), Decision on
Defence to Sever Defendants and
Counts, 15 March 1999, 371
Simic ´ et al. (IT-95-9-PT), Decision on
Pre-trial Motion by the
Prosecution Requesting the Trial
Chamber to take Judicial Notice of
the International Character of the
Conflict in Bosnia-Herzegovina, 25
March 1999, 245, 489, 490,
491, 591
Simic ´ et al. (IT-95-9-PT), Decision on the
Prosecution Motion to Resolve
Conflict of Interest Regarding
Attorney Borislav Pisarevic, 25
March 1999, 615
Simic ´ et al. (IT-95-9-PT), Decision on the
Prosecution Motion Under
Rule 73 for a Ruling Concerning
the Testimony of a Witness,
27 July 1999, 86, 97, 171, 411,
459, 495
Simic ´ et al. (IT-95-9-PT), Separate
Opinion of Judge David Hunt on
Prosecutor’s Motion, 27 July 1999,
97, 106, 601
Simic ´ et al. (IT-95-9-PT), Decision on (1)
Application by Stevan Todorovic´ to
re-open the Decision of 27 July
1999, 107
Simic ´ et al. (IT-95-9-R77), Order for
Limited Access to Registry Files, 1
November 1999, 495
Simic ´ et al. (IT-95-9-PT), Decisions on
Simo Zaric´’s and Miroslav Tadic´’s
Applications for Provisional
Release, 4 April 2000, 87, 393
Simic ´ et al. (IT-95-9-AR65), Decision on
Application for Leave to Appeal, 19
April 2000, 263, 442
Simic ´ et al. (IT-95-9-AR65), Decision on
Milan Simic´’s Application for
Provisional Release, 29 May 2000,
390, 393
Simic ´ et al. (IT-95-9-PT), Decision
Denying Request for Assistance in
Securing Documents and
Witnesses from the International
Committee of the Red Cross, 7
June 2000, 374, 621
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
Simic ´ et al. (IT-95-9-PT), Decision on
Motion for Judicial Assistance to be
Provided by SFOR and Others, 18
October 2000, 93, 469
Simic ´ et al. (IT-95-9-PT), Separate
Opinion of Judge Robinson, 18
October 2000, 97
Simic ´ et al. (IT-95-9/2-S), Sentencing
Judgment, 17 October 2002, 335,
372, 465, 557, 567, 568, 570, 573,
576, 578
Simic ´ et al. (IT-95-9-T), Reasons for
Decision on Prosecution’s Motion
to Use Telephone Interviews, 11
March 2003, 520
Simic ´ et al. (IT-95-9-T), Judgment, 17
October 2003, 204, 313, 360
Sljivanc ˇanin (IT-95-13/1-PT), Registrar’s
Decision, 9 July 2003, 246, 526
Sljivanc ˇanin (IT-95-13/1-PT), Decision
on Assignment of Counsel, 20
August 2003, 527
South-West Africa Case, [1950] ICJ
Reports 103, 148
SS Lotus (France v. Turkey), [1927] PCIJ
Ser. A (Judgments) No. 10
(Judgment No. 9) (1929), 67, 154,
232–236, 532
Stakic ´ et al. (IT-97-24), 58, 183, 204, 224,
429, 435, 456
Stakic ´ et al. (IT-97-24- PT), Second
Amended Indictment, 5 October
2001, 177
Stakic ´ et al. (IT-97-24-T), Decision on
Rule 98 bis Motion for Judgment of
Acquittal, 31 October 2002, 81,
101, 164, 199, 224, 246, 299, 320
Stakic ´ et al. (IT-97-24-T), Judgment,
31 July 2003, 163, 165, 175, 177,
204, 221, 298, 302, 304, 306, 313,
314, 315, 316, 323, 435, 462, 481,
485, 558
Stankovic ´ (IT-96-23/2-PT), Decision on
Referral of Case Under Rule 11 bis,
17 May 2005, 387, 409, 544
State v. Wouter Basson, [2004] CCT
30/03, 45
Streletz, Kessler & Krenz v. Germany,
[2001] ECHR 230, 22 March
2001, 63
Strugar (IT-01-42), 231, 262, 263, 317,
396, 435, 607
Strugar (IT-01-42-PT), Decision on
Defence Preliminary Motion
Challenging Jurisdiction, 7 June
2002, 277
Strugar (IT-01-42-T), Decision on the
Defence Objection to the
Prosecution’s Opening Statement
Concerning Admissibility of
Evidence, 22 January 2004,
136, 218
Strugar (IT-01-42-T), Decision re the
Defence Motion to Terminate
Proceedings, 26 May 2004, 106, 396
Strugar (IT-01-42-T), Judgment, 31
January 2005, 95, 96, 98, 133, 185,
260, 262, 263, 301, 317, 347, 368,
435, 442, 573, 576, 577
Sullivan v. Louisiana, 113 SCt 2078
(1993), 464
Suresh v. Canada, [2002] CarswellNat 7
(SCC), 45, 396
SW v. United Kingdom, Series A, No. 335-
B, 63, 65, 209, 218
Tadic ´, Dus ˇko (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
233–236, 237, 238, 242, 243, 245,
248, 256, 258, 265, 267, 275, 295,
301, 309, 310, 312, 314, 352, 369,
398, 446, 448, 449, 451, 464, 475,
480, 493, 497, 527, 536, 551, 561,
567, 568, 580, 619
Tadic ´, Dus ˇko (IT-94-1-D), Decision of the
Trial Chamber on the Application
by the Prosecutor for a Formal
Request for Deferral to the
Competence of the International
Tribunal in the Matter of Dusˇko
Tadic´, 8 November 1994, 384, 619
Tadic ´, Dus ˇko (IT-94-1-T), Decision on
the Defence Motion on
Jurisdiction, 10 August 1995,
50, 192
Tadic ´, Dus ˇko (IT-94-1-T), Decision on
the Prosecutor’s Motion
Requesting Protective Measures for
Victims and Witnesses, 10 August
1995, 48, 79, 92, 117, 474, 503
Tadic ´, Dus ˇko (IT-94-1-AR72), Decision
on the Defence Motion for
Interlocutory Appeal on
Jurisdiction, 2 October 1995,
23, 50, 51, 52, 53, 61, 64, 77, 80, 81,
82, 92, 94, 95, 96, 98, 101, 124, 125,
128, 152, 153, 172, 188, 221, 228,
229, 233, 234, 237, 238, 257, 258,
265, 268, 336, 449, 455, 534,
535, 542
Tadic ´, Dus ˇko (IT-94-1-AR72), Separate
Declaration of Judge J. Descheˆnes
on the Defence Motion for
Interlocutory Appeal on
Jurisdiction, 2 October 1995, 245,
432, 591
Tadic ´, Dus ˇko (IT-94-1-AR72), Separate
Opinion of Judge Abi-Saab on the
Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October
1995, 81, 233, 242
Tadic ´, Dus ˇko (IT-94-1-AR72), Separate
Opinion of Judge Li on the Defence
Motion for Interlocutory Appeal
on Jurisdiction, 2 October 1995, 3,
82, 83, 97, 620
Tadic ´, Dus ˇko (IT-94-1-AR72), Separate
Opinion of Judge Sidhwa on the
Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October
1995, 3, 63, 83, 620
Tadic ´, Dus ˇko (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 ˇko (IT-94-1), Decision on the
Defence Motion on Hearsay, 5
August 1996, 479, 480
Tadic ´, Dus ˇko (IT-94-1-T), Separate
Opinion of Judge Stephen
on Prosecution Motion
for Production of Defence
Witness Statements, 27 November
1996, 398
Tadic ´, Dus ˇko (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 ˇko (IT-94-1-T), Sentencing
Judgment, 14 July 1997, 299, 569,
570, 571, 572, 575, 576, 577
Tadic ´, Dus ˇko (IT-94-1-A), Decision on
Appellant’s Motion for the
Extension of the Time-Limit and
Admission of Additional Evidence,
15 October 1998, 81, 87, 451, 483
Tadic ´, Dus ˇko (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 ˇko (IT-94-1-A), Declaration of
Judge Nieto-Navia, 15 July 1999,
535, 536
Tadic ´, Dus ˇko (IT-94-1-A), Order
Remitting Sentencing to a Trial
Chamber, 10 September
1999, 448
Tadic ´, Dus ˇko (IT-94-1-T), Separate
Opinion of Judge Robinson, 11
November 1999, 562
Tadic ´, Dus ˇko (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 ˇko (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 ˇko (IT-94-1-A-AR77),
Decision on the Application
for Leave to Appeal, 25
October 2000, 449
Tadic ´, Dus ˇko (IT-94-1-A-AR77), Appeal
Judgment on Allegations of
Contempt Against Prior Counsel,
Milan Vujin, 27 February 2001, 88,
102, 449
Tadic ´, Dus ˇko (IT-94-1-R), Decision on
Motion for Review, 30 July 2002,
450, 451
Tadic ´, Miroslav (IT-95-9), Decision of the
President on the Application for
Pardon or Commutation of
Sentence of Miroslav Tadic´, 24 June
2004, 582
Tagaga v. INS, 228 F.3d 1030 (9th Cir.,
2000), 45
Taylor (SCSL-03-01), 328
Taylor (SCSL-03-01-I), Indictment, 3
March 2003, 270, 311, 312, 373
Taylor (SCSL-03-01-I), Indictment, 7
March 2003, 284
Taylor (SCSL-03-01-I), Decision on
Immunity from Jurisdiction, 31
May 2004, 54, 55, 57, 60, 67, 328
Todorovic ´ (IT-95-9/1-S), Sentencing
Judgment, 31 July 2001, 197, 335,
372, 413, 423, 556, 557, 563, 570,
572, 573, 574, 575, 578, 580
United Kingdom v. Chusaburo, (1947) 3
LRTWC 76 (British Military
Court), 334
United Kingdom v. Tesch et al. (Zyklon B
case), (1947) 1 LRTWC 93 (British
Military Court), 306, 307
United States of America v. Alsto¨tter et al.
(Justice trial), (1948) 3 TWC 1, 6
LRTWC 1, 14 ILR 278, 501
United States of America v. Brandt et al.,
(1948) 2 TWC 1 (United States
Military Tribunal), 464
United States of America v. Ohlendorf et al.
(Einsatzgruppen trial), (1949) 4
TWC 1, 331
United States of America v. Pohl et al.,
(1948) 5 TWC 1 (United States
Military Tribunal), 464
United States of America v. von Leeb et al.
(High Command trial), (1948)
12 LRTWC 1, 11 TWC 105, 279,
339, 462
United States of America v. von
Weizsaecker et al., (1948)
14 TWC 1 (United States Military
Tribunal), 464
United States of America v. Wilhelm List
et al. (Hostage case), (1948) 8
LRTWC 34, 11 TWC 757, 105, 256
United States of America v. Yamashita,
(1948) 4 LRTWC 1, 315
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
Dissenting Opinion of Judge
Shahabuddeen, 25 February 2004,
112, 332
Victor v. Nebraska, 127 L.Ed.2d 583
(1994), 464
Villeda Aldana v. Fresh Del Monte
Produce, Inc., 305 F.Supp.2d 1285
(SD FL, 2003), 45
WBE v. The Netherlands (No. 432/1990),
UN Doc. CCPR/C/46/D/432/1990,
538
Williams v. Florida, 399 US 78 (1970), 398
In re Yamashita, 327 US 1 (1945), 315
Yamashita case (United States
of America v. Yamashita, (1948)
4 LRTWC 1), 315
Yerodia case. See Democratic Republic of
Congo v. Belgium
Zigiranyirazo (ICTR-2001-73-I), Decision
on Prosecutor’s Request for Leave
to Amend the Indictment and on
Defence Urgent Motion for an
Order to Disclose Supporting
Material in Respect of the
Prosecutor’s Motion for Leave to
Amend the Indictment, 15 October
2003, 372
Zyklon B case (United Kingdom v. Tesch
et al., (1947) 1 LRTWC 93 (British
Military Court)), 302, 306
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, 261–262
American Convention on Human Rights
(1978), 105, 130, 560
Basic Principles on the Independence of
the Judiciary, 506
Canadian Charter of Rights and
Freedoms, 460
Charter of Fundamental Rights
article 19, 8
Charter of the International Military
Tribunal
article 1, 145
article 6(b), 98, 213, 227, 228, 258,
261, 264, 402
article 6(c), 77, 186–187
article 7, 159, 327, 366
article 8, 45, 329
article 19, 452
article 21, 488
article 26, 439
article 27, 546
Charter of the International Military
Tribunal for the Far East
article 16, 546
article 17, 439
Charter of the United Nations.
See UN Charter
Code of Crimes against the Peace and
Security of Mankind (1996), 165,
198, 199, 305
Convention Against Torture and Other
Cruel, Inhuman, and Degrading
xlvi
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,
265–274, 501
Convention for the Amelioration of
the Condition of the Wounded
and Sick in Armed Forces in the
Field (1949)
article 2, 151, 242
article 49, 158, 241
article 51, 77, 93
Convention for the Amelioration of
the Condition of Wounded, Sick
and Shipwrecked Members of
Armed Forces at Sea (1949)
article 2, 242
article 50, 77, 93, 158, 241
Convention Relative to the Protection
of Civilian Persons in Time of
War (1949)
article 2, 242
article 4, 247
article 27, 273
article 49(2), 204
article 146, 158, 241
article 147, 77, 93
Convention Relative to the Treatment
of Prisoners of War (1949)
article 13, 344, 601
article 49, 204
article 51, 202
article 129, 158, 241
article 130, 77, 93
Geneva Conventions Act 1962
(Ireland), 274
Genocide Convention. See Convention
for the Prevention and
Punishment of the Crime of
Genocide, 1948
Hague Conventions
1899, 255, 259
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,
258–260, 277, 280, 285
ICTR Statute. See Statute of the
International Criminal Tribunal for
Rwanda
ICTY Statute. See Statute of the
International Criminal Tribunal for
the former Yugoslavia
Inter-American Convention to Prevent
and Punish Torture (1985), 190,
206, 250
International Convention for the
Suppression of Terrorist
Bombings, 309
International Court of Justice, Statute of
the, 75, 91, 102, 104, 107, 110, 221
International Covenant on Civil and
Political Rights (1966)
article 2(1), 542
article 6(6), 546
article 9(2), 520
article 9(3), 393, 517, 521
article 9(4), 539
article 9(5), 537
article 10(3), 130, 556, 560
article 14, 117, 124, 234, 289, 419, 449,
463, 501, 505, 518, 523, 535, 539
article 14(1), 511
article 14(5), 99, 102, 117, 410, 438,
449, 484, 533, 535, 597
article 14(6), 537, 538, 576
article 14(7), 127, 535
article 15(2), 61, 105
International Criminal Court, Statute of.
See Rome Statute of the
International Criminal Court
Lausanne, Treaty of (1923), 10
Lieber Code (1863), 98, 206, 231, 254
Lome´ Peace Agreement (1999), 34–36,
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 22–33, 289
article 22(2), 81
article 25, 309
article 25(c)(3), 228, 304
article 26, 140
article 27, 47, 99, 327, 328, 329
article 28, 315, 321
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
International Criminal Court
Statute of the International Criminal
Tribunal for Rwanda (ICTR
Statute)
article 2, 151, 161, 181
article 2(3)(b), 137
article 2(3)(e), 182
article 3, 151, 179, 187, 196, 197, 219,
254, 375
article 3(h), 77, 215, 219, 375
article 4, 77, 93, 99, 151, 233, 237, 239,
268, 551
article 4(e), 211, 213, 215
article 5, 139
article 6, 139, 290
article 6(1), 80, 182, 183, 303, 311, 362
article 6(2), 57, 328, 329, 465, 566
article 6(3), 294, 362
article 6(4), 465, 567
article 7, 131, 134, 289–292
article 8, 123
article 8(2), 58
article 9, 127, 536
article 9(1), 383
article 9(2), 377
article 10(c), 607
article 12quater, 597
article 12(1), 116
article 12(3), 598
article 13(1), 598
article 14, 75, 76, 85, 348
article 15(4), 601
article 16(1), 607
article 16(3), 599, 608
article 17(2), 358
article 17(3), 592
article 17(3)(f), 358
article 17(4), 353
article 18, 377, 432
article 18(1), 466
article 18(2), 148, 357, 364
article 19, 410
article 19(1), 340, 473, 549
article 19(2), 419
article 19(3), 388
article 20, 96, 117, 502
article 20(1), 511
article 20(2), 514
article 20(3), 293
article 20(3)(a), 592
article 20(3)(f), 592
article 20(4)(a), 519
article 20(4)(b), 513
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
Statute of the International Criminal
Tribunal for the former Yugoslavia
(ICTY Statute)
article 1, 130, 131, 132
article 2, 65, 93, 151, 240–243, 249,
292, 294, 296, 345, 360, 371
article 2(a), 437
article 3, 32, 76, 94–95, 151, 213,
215, 240, 255–269, 274, 275,
345, 437
article 4, 151, 161
article 4(2), 169
article 4(2)(c), 163
article 4(3), 181
article 4(3)(b), 137
article 5, 151, 186–189
article 5(e), 205
article 5(h), 77, 215
article 6, 139, 290
article 7, 139, 289, 328, 330
article 7(1), 183, 296–297, 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), 143–144
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, 140–142, 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, 337–339
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, 48–53, 55,
78, 92, 124, 134, 228, 304, 393
UN Security Council Resolutions
674, 16, 231
757, 16
764, 16, 241
771, 16, 231, 241
780, 14, 17, 16
807, 3
808, 20, 40, 48, 69, 143, 145, 403
827, 4, 8, 22, 40, 52, 78, 133, 138,
554, 555, 588
857, 23, 595
877, 23, 602
912, 15, 25
918, 26
925, 26, 161
935, 27, 330
936, 23, 602
955, 4, 8, 29, 40, 69, 135, 138, 162, 588
978, 356
989, 595
1019, 356
1047, 602
1104, 595
1165, 587, 594
1166, 587, 594
1191, 595
1200, 595
1207, 356
1215, 410, 589
1259, 603
1315, 36, 55, 60, 70, 72, 265, 454
1329, 41, 133, 147, 508, 587, 594, 596,
602, 605
1340, 595
1346, 56
1347, 595
1385, 139
1411, 180, 595
1422, 144
1431, 42, 587, 596
1449, 595
1481, 587, 597
1487, 144
1492, 595
1503, 4, 42, 43, 152, 587, 601
1504, 601
1505, 601
1512, 43, 587, 597
1534, 43, 148, 355, 356, 408
1564, 167
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, 79–81, 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 first session of the General
Assembly, which was held in the weeks following the Nuremberg judgment,
a resolution was adopted aYrming the principles established in the Charter
of the International Military Tribunal.
1
For a few years, the United Nations
encouraged the development of an international criminal court through a
treaty,
2
a measure called for in the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide.
3
In 1954, it suspended work on the
project for more than three decades. The United Nations always viewed the
role of an international criminal court as standing outside the organisation as
such, rather than as an organ within its own structure, as is the case with the
International Court of Justice.
Then, within a few weeks, in early 1993, as war raged in Europe for the
first time since 1945, a proposal that the Security Council create an ad hoc
international criminal tribunal gained inexorable momentum. On 22
February 1993, the United Nations Security Council decided to establish the
International Criminal Tribunal for the former Yugoslavia.
4
It was born
‘out of the utter despair of the international community as to how to manage
1
‘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 conflicts in the Balkans’, wrote Louise Arbour, who
served as the Tribunal’s Prosecutor from 1996 to 1999.
5
The International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 (ICTY) was formally established by Resolution 827 of the
Security Council, adopted without a vote by general agreement of the fifteen
members on 25 May 1993. The Statute of the International Criminal Tribunal
for the former Yugoslavia is annexed to Security Council Resolution 827.
Little over a year later, the genocidal massacre of hundreds of thousands of
Rwandan Tutsis, witnessed at close hand by a peacekeeping mission mandated
by the Security Council only months earlier, prompted the Security Council to
establish a second international tribunal, the International Criminal Tribunal
for the Prosecution of Persons Responsible for Genocide and Other Serious
Violations of International Humanitarian Law Committed in the Territory of
Rwanda and Rwandan citizens responsible for genocide and other such
violations committed in the territory of neighbouring States, between 1
January 1994 and 31 December 1994 (ICTR). Based largely on the model of
the ICTY, and initially sharing with it both the Prosecutor and the Appeals
Chamber,
6
the International Criminal Tribunal for Rwanda was created
by Resolution 955 of the Security Council, adopted 8 November 1994; its
Statute was annexed to the resolution. Rwanda, which by chance was serving
a two-year term as one of the Council’s ten elected members, voted against
the resolution in order to express its discontent with certain provisions of
the Statute.
7
Following the creation of the 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 modified 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 d’Arusha 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 fu¨r Ausla¨ndisches und Internationales Strafrecht, 2003; Cesare P. R.
Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’,
(1999) 31 New York University Journal of International Law and Policy 709; David Turns,
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-conflict
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 significantly diVerent
from those of the former Yugoslavia, Rwanda and Sierra Leone in that they are
not genuinely international bodies, although they have certainly been
enriched by international law and by the active involvement of the United
Nations. The Special Court for Sierra Leone is a close relative of the ‘hybrid
tribunals’, but it is more accurately classified with the ad hoc tribunals because
it is a creature of international law, not domestic law.
Neither the scale that the tribunals have reached, nor the time frame during
which they have operated, could ever have been imagined when the first
Security Council Resolution was adopted in 1993. By 2004, the United
Nations ad hoc criminal tribunals consumed more than $250 million per
annum, roughly 15 per cent of the total UN general budget. They have nearly
2,000 employees.
17
This explains the relatively modest scale of the third
institution, the Special Court for Sierra Leone, whose budget is a fraction of
that of the other two institutions, and whose work is planned for completion
within four or five years. Disturbed by the high cost and the size of the
institutions, the Security Council has insisted on a ‘completion strategy’ to
ensure that the 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-General’s August 2004 Report:
‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’, UN
Doc. S/2004/616, paras. 40, 45, 46.
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 Conflict and Post-conflict Societies, Report
of the Secretary-General’, UN Doc. S/2004/616, para. 43.
6 E S TA B L I S H M E N T O F T H E T R I B U N A L S
than fifteen years since the ICTY was created, and compares rather strikingly
with the historical model of the Nuremberg Tribunal, whose activities had
been completed within fifteen months of its creation. To be fair to the new
generation of international tribunals, their proceedings are necessarily more
complex and lengthy because of the important due process guarantees
imposed by modern international human rights law.
The three ad hoc tribunals fit within a constantly expanding universe of
international criminal justice institutions, of which the centrepiece is the 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 specific assignments from the Security Council. In the
course of four years of negotiations, the architecture of the Court evolved some-
what. In its final form, the relationship with the Security Council is far less
significant than had originally been proposed.
18
It remains possible, however, for
the Security Council to refer situations to the Court, pursuant to article 13(b) of
the Rome Statute. On 31 March 2005, the Security Council referred the situation
in Darfur, Sudan, to the International Criminal Court,
19
in a sense opting for the
ICC as an alternative to the establishment of yet another ad hoc body, and this
despite the fact that three of the Council’s permanent members have not ratified
or acceded to the Rome Statute.
The ancestor of these developments, the International Military Tribunal at
Nuremberg, stood somewhat halfway between national and international law.
According to B. V. A. Ro¨ling, a distinguished Dutch jurist and judge of the
Tokyo Tribunal, the Nuremberg and Tokyo tribunals were ‘multinational
tribunals’ and not ‘international tribunals in the strict sense’.
20
At Nuremberg,
the victorious Allies had ‘done together what any one of them might have
done singly’.
21
But in 1993 it was the United Nations Security Council, acting
in a sense as a world government, intervening in what had begun as an
internal conflict within a sovereign State, although the declaration of inde-
pendence by various constituents of Yugoslavia gave it an international
flavour, to ensure that atrocities of which the principal victims were innocent
civilians did not go unpunished. Professor Theodor Meron, one of the
18
See: William A. Schabas, Introduction to the International Criminal Court, 2nd edn,
Cambridge: Cambridge University Press, 2004, pp. 82–85.
19
UN Doc. S/RES/1593 (2005), para. 1.
20
B. V. A. Ro¨ling, ‘The Law of War and the National Jurisdiction since 1945’, in Hague
Academy of International Law, Collected Courses, 1960-II, Leyden: A. W. SijthoV, 1961,
p. 356.
21
France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, p. 218.
C R E AT I O N O F T H E T R I B U N A L S 7
pre-eminent academic observers of the process, later to become President of
the ICTY, wrote that the ICTY was the ‘first truly international criminal
tribunal’.
22
The ad hoc tribunals were conceived of and justified by a utilitarian rather
than the essentially retributive premise that had been the rule at Nuremberg
and Tokyo. The language in the Charter establishing the Nuremberg Tribunal
referred to the need to bring oVenders to justice, and alluded to the 1943
Moscow Declaration that pledged to follow perpetrators of war crimes to the
ends of the world.
23
There was never any question at the time of using the
institutions to help promote peace and end the conflict, for Germany (and
soon Japan) already lay in ruins. Criminal prosecution was an accompaniment
to military victory. And the word ‘reconciliation’, so fashionable today, never
figured in this first experiment with international justice. The contrast with
the ad hoc tribunals is most striking. The Security Council Resolution 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 specifically providing that the Court is to have
jurisdiction over ‘leaders who, in committing such crimes, have threatened the
establishment of and implementation of the peace process in Sierra Leone’.
26
The link with promotion of peace and security associates such judicial
initiatives with the principles and purposes of the United Nations, and
justifies the engagement of the institution as a whole and more specifically
that of the Security Council. Evolving concepts in international human rights
law have also played a role in the creation of the ad hoc tribunals, although the
language in the constitutive documents is less explicit in this respect. The
Vienna Declaration and Plan of Action, adopted in June 1993, that is, a month
after the establishment of the ICTY, expressed its ‘concern [with] the issue of
impunity of perpetrators of human rights violations’.
27
The link between
22
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
UN Doc. S/RES/955 (1994), preamble.
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.
8 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
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 conflict developed in the mid-nineteenth century, the idea
that an international tribunal be established to prosecute breaches of huma-
nitarian law first emerged.
31
In 1913, a commission of inquiry sent by the
Carnegie Foundation to investigate atrocities committed during the Balkan
Wars used the Regulations annexed to the 1907 fourth Hague Convention as a
basis for its description of war crimes.
32
Following the First World War, the
Commission on Responsibilities of the Authors of War and on Enforcement of
Penalties established to examine allegations of war crimes committed by the
Central Powers did the same.
33
The Versailles Treaty actually provided for the
establishment of an international tribunal to judge the German emperor,
Wilhelm II, ‘for a supreme oVence against international morality and the
sanctity of treaties’.
34
But the Kaiser had fled to neutral Holland, which refused
his extradition. The Versailles Treaty also recognised the right of the Allies to
set up military tribunals to try German soldiers accused of war crimes.
35
28
‘Independent study on best practices, including recommendations, to assist States in
strengthening their domestic capacity to combat all aspects of impunity, by Professor
Diane Orentlicher’, UN Doc. E/CN.4/2004/88, paras. 24–56.
29
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, GA Res. 39/46, annex, art. 5(2).
30
‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report
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. 228–230. It is often said that international law has always recognised the right
of the victor to prosecute the war crimes committed by the vanquished. But if this is
really the case, why did the Allies insist on German acquiescence to such a provision?
C R E AT I O N O F T H E T R I B U N A L S 9
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 September–1 October 1946, it issued its
judgment convicting nineteen defendants of crimes against peace, war crimes
and crimes against humanity.
41
In the Pacific theatre, the Allies established the
Why did the Germans consider they were entitled to refuse to accept the clauses? See the
discussion in: H. Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’,
(1944) 21 British Yearbook of International Law 58, especially at pp. 60–61.
36
German War Trials, Report of Proceedings before the Supreme Court in Leipzig, London:
His Majesty’s Stationery OYce, 1921. Also: James F. Willis, Prologue to Nuremberg: The
Politics and Diplomacy of Punishing War Criminals of the First World War, Westport, CT:
Greenwood Press, 1982; Gerd Hankel, Die Leipziger Prozesse, Hamburg: Hamburger
Edition, 2003.
37
[1920] UKTS 11, De Martens, Recueil ge´ne´ral des traite´s, 99, 3e se´rie, 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
France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172. The literature on the Nuremberg trial of the major war criminals
is extensive. Probably the best modern account is: Telford Taylor, The Anatomy of the
Nuremberg Trials, New York: Alfred A. Knopf, 1992.
10 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
International Military Tribunal for the Far East, which was broadly similar to
the Nuremberg tribunal. International law was also applied in the course of
many other trials held at the time before courts established by the victorious
powers acting on an individual basis.
42
The successes at Nuremberg and Tokyo prompted initiatives to establish
a permanent international criminal court. Article VI of the Convention on the
Prevention and Punishment of the Crime of Genocide, adopted by the United
Nations General Assembly on 9 December 1948, said that trial for genocide
was to take place before ‘a competent tribunal of the State in the territory of
which the act was committed, or by such international penal tribunal as may
have jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction’.
43
A General Assembly resolution adopted the same
day as the Convention called upon the International Law Commission to
prepare the statute of the court promised by article VI.
44
In parallel with
the work of the International Law Commission, the General Assembly also
established a committee charged with drafting the statute of an international
criminal court.
45
Then, the General Assembly suspended the mandates,
ostensibly pending the sensitive task of defining the crime of aggression.
46
Cold War tensions had in fact made progress on the establishment of any
international jurisdiction virtually impossible.
The post-Cold War revival of international prosecution
In 1989, the year of the fall of the Berlin wall, Trinidad and Tobago initiated
a resolution in the General Assembly directing the International Law 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, 1946–1955, 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
C R E AT I O N O F T H E T R I B U N A L S 11
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, Luxembourg’s 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-
bourg’s Prime Minster Jacques Santer referred to the proposal, adding that the
Secretary-General had answered the earlier letter from Jacques Poos ‘with
interest’. Genscher, too, returned to the matter in a speech to the German
parliament on 17 April 1991.
55
(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: Fulfilling the Expectations of International Law After the Gulf
War’, (1992) 10 Dickinson Journal of International Law 425; Louis Rene Beres, ‘Toward
Prosecution of Iraqi Crimes Under International Law: Jurisprudential Foundations and
Jurisdictional Choices’, (1991) 22 California Western International Law Journal 127; Louis
Rene Beres, ‘Iraqi Crimes During and After the Gulf War: The Imperative Response of
International Law’, (1993) 15 Loyola Los Angeles International and Comparative Law
Journal 675.
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
‘L’ombre 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. 16–17.
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’, Ostthu¨ringer Zeitung, 3 October 1991.
12 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
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 conflict 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, first Slovenia and then Croatia declared
independence from what they considered to be a Serb-dominated federation.
Reacting to what looked increasingly to be an inevitable break-up, the
Belgrade regime sought to carve oV areas from the seceding States in which
there was a large Serb population. With the borders up for grabs, especially
in Bosnia and Herzegovina, all sides indulged in ‘ethnic cleansing’ in order to
strengthen their territorial ambitions. This forced expulsion of populations
was facilitated by terror, persecution and inhumane acts directed against
civilian populations. Europe in particular struggled with how to tame the
conflict. Criminal accountability and prosecution was an idea whose time had
come, and it was not long before proposals began to be circulated.
On 16 May 1991, Mirko Klarin published an article entitled ‘Nuremberg
Now!’ in the Belgrade newspaper Borba.
58
Oxford history professor Norman
Stone made a similar appeal in a comment he published in the Guardian on 13
November 1991.
59
In early 1992, French constitutional judge Robert Badinter,
56
Alain Pellet, ‘The International Responsibility of Saddam Hussein’, 16 April 1991,
reproduced in The Path to The Hague, pp. 18–23.
57
Commission nationale consultative des droits de l’homme, ‘Avis concernant la cre´ation
d’une Cour pe´nale internationale’, 4 July 1991, English translation in The Path to The
Hague, pp. 33–35.
58
English translation in The Path to The Hague, pp. 43–45.
59
Norman Stone, ‘Dubrovnik: The Case for a War Crime Trial – Why Not Restore the
Nuremberg Tribunal?’, Guardian, 13 November 1991.
C R E AT I O N O F T H E T R I B U N A L S 13
who also presided over the Arbitration Commission for the former Yugoslavia
that had been established by the European Commission in late 1991, raised
the idea of an international criminal tribunal for Yugoslavia in discussions
with the two mediators, Lord Carrington and Cyrus Vance.
60
But the legal
adviser to the Quai d’Orsai, Jean-Pierre Puissochet, found Badinter’s whole
idea unrealistic. Puissochet felt that ‘to elaborate a treaty to create a tribunal
would take years’ and believed it unlikely that the Security Council would
contemplate such an initiative.
61
Eventually, Badinter managed to interest the
French Foreign Minister, Roland Dumas, who took the matter up with 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 Badinter’s personal account, see The Path to The Hague, pp. 86–87.
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
Specific Decisions by the London Conference, doc. LC/C (Final), 27 August 1992, para.
8, reprinted in ‘Material Relating to the London Conference (August 26–27, 1992) and
the Crisis in the Former Yugoslavia’, US Department of State Dispatch Supplement, vol. 3,
No. 7, 15 September 1992.
67
UN Doc. A/47/PV.8, p. 61.
14 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
780 launched an ‘international investigation on crimes against humanity . . .
[that] opens the way for the establishment of a Permanent International
Criminal Court’.
68
By then, a variety of initiatives were afoot on a more technical level. On 5
August 1992, the United Kingdom, with the support of several European
Union members as well as the United States, invoked the ‘Moscow Human
Dimension Mechanism’ of the Conference for Security and Cooperation in
Europe (CSCE).
69
It subsequently informed the CSCE’s OYce for Democratic
Institutions and Human Rights that it had designated Swedish diplomat Hans
Corell as rapporteur. In turn, Bosnia and Herzegovina and Croatia nominated
Austrian diplomat Helmut Tu¨rk, and then Corell and Tu¨rk chose the Norwegian,
Gro Hillestad Thune, as the third member of the team of rapporteurs.
Their mandate was ‘[t]o investigate reports of atrocities against unarmed
civilians in Croatia and Bosnia, and to make recommendations as to the
feasibility of attributing responsibility for such acts’.
70
A report on Croatia
was submitted in early October 1992, accompanied by the recommendation
of the rapporteurs that a committee of experts be convened as early as
possible to prepare a draft treaty establishing an ad hoc tribunal with
jurisdiction over the former Yugoslavia. The report noted accounts of
atrocities perpetrated against unarmed civilians, including ‘ethnic cleansing’,
and said there was ‘a suYcient legal basis for international prosecution’.
71
The CSCE’s Committee of Senior OYcials considered the report at its
meeting in Prague, on 5–6 November 1992, and recommended that ‘[t]he
United Nations Commission of Experts should give particular attention to the
principle of personal responsibility for war crimes and examine how this
principle could be put into practice by an ad hoc tribunal’.
72
Ambassador
Corell informed them that the United Nations Commission of Experts did not
consider that establishment of an ad hoc tribunal was within the latter’s
mandate. For this reason, the rapporteurs asked for a mandate ‘to draft a
convention establishing an international ad hoc tribunal to deal with war
crimes and crimes against humanity committed in the former Yugoslavia’.
On 15 December 1992, the Council of the CSCE, meeting in Stockholm,
authorised the three rapporteurs ‘to refine their proposals on making the
68
The Path to The Hague, p. 65.
69
Proposal for an International War Crimes Tribunal for the Former Yugoslavia by Rappor-
teurs (Corell – Tu¨rk – 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 Insider’s 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.
C R E AT I O N O F T H E T R I B U N A L S 15
principle of personal accountability eVective including the possibility of
the establishment of an ad hoc tribunal’.
73
In the meantime, the United Nations Security Council had slowly begun
initiatives that would also contribute to the call for an international tribunal.
On 13 July 1992, the Council had condemned violations of international
humanitarian law being committed on the territory of the former Yugoslavia,
indicating that perpetrators were individually responsible for their acts.
74
Previously, the Council had only referred in general terms to human rights
or minority rights, and not to ‘violations of international humanitarian
law’. For example, Resolution 757, of 30 May 1992, had made no specific
reference to human rights, although it did speak of respect for borders,
withdrawal of armed groups, humanitarian assistance, and a halt to attempts
to change ethnic composition of areas. Moreover, for the first time, the
Council was beginning to invoke obligations imposed upon individuals rather
than States.
75
On 13 August 1992, the Security Council again directed its
attention to reports of ‘violations of international humanitarian law’. It called
upon States to collate information on the subject and to make this available
to the Council. The Secretary-General was to submit a report to the Council
‘recommending additional measures that might be appropriate in response to
the information’.
76
Pursuing its concerns about reports of widespread violations of 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. 74–81. Also: Conference for Security and Co-operation in Europe, Third
Council Meeting, Stockholm, 14–15 December 1992, Summary of Conclusions – Decision
on Peaceful Settlement of Disputes: 1. Regional Issues: Former Yugoslavia, para. 14.
74
UN Doc. S/RES/764 (1992).
75
James O’Brien, ‘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 Insider’s 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.
16 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
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 five-person Commission of Experts.
83
According to
M. Cherif Bassiouni, who chaired the Commission for most of its activities,
the United Nations did not provide any resources ‘to insure that the 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 Majesty’s Stationery OYce, 1948.
80
Morris and Scharf, An Insider’s Guide to the ICTY, vol. I, pp. 25–26.
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. 64–65.
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. 417–418. Also: M. Cherif Bassiouni, ‘From Versailles
to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International
Criminal Court’, (1997) 10 Harvard Human Rights Journal 11, at pp. 39–42; M. Cherif
Bassiouni, ‘The United Nations Commission of Experts Established Pursuant to 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.
C R E AT I O N O F T H E T R I B U N A L S 17
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 first 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 specifically referring
to the situation in the former Yugoslavia, aYrmed ‘its conviction that those
who commit or order the commission of acts of ‘‘ethnic cleansing’’ are 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. 265–268.
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.
18 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
Dramatically, on 16 December 1992, United States Secretary of State
Lawrence Eagleburger ‘named names’ of persons suspected of crimes against
humanity, saying his government had provided details to the Commission of
Experts ‘whose decision it will be to prosecute or not’. Eagleburger had
previously served as United States ambassador to Belgrade, and had been
considered sympathetic to the Serbs, but by August 1992 his views had
evolved and he began calling for a war crimes tribunal. ‘We know that crimes
against humanity have occurred, and we know when and where they
occurred’, Eagleburger said, speaking to a conference on the Balkan conflict.
‘We know, moreover, which forces committed those crimes, and under
whose command they operated. And we know, finally, who the political
leaders are and to whom those military commanders were – and still are –
responsible.’
95
These included the Bosnian Serb leaders, Karadzˇic´ and
Mladic´, who would figure in the early indictments of the ICTY,
96
as well as
Serbian President Slobodan Milosˇevic´, who would subsequently travel to the
United States for the Dayton negotiations. Milosˇevic´ was not indicted for
alleged crimes committed in Bosnia and Herzegovina until November 2001.
97
Eagleburger warned that ‘a second Nuremberg awaits the practitioners of
ethnic cleansing’.
98
The most enthusiastic – and ultimately decisive – support for the idea of
the tribunal was coming from the United States of America. In one of his first
policy initiatives since being appointed Secretary of State, Warren Christo-
pher, who was sworn in as Eagleburger’s replacement on 20 January 1993,
instructed senior advisers in the Department of State to investigate how best
to organise an international war crimes tribunal. During his Senate confirma-
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 conflict. It drew upon material collected by
United States intelligence agencies. According to Simon Tisdall and Chris
95
Elaine Sciolino, ‘US Names Figures it Wants Charged with War Crimes’, New York Times,
17 December 1992, p. 1.
96
Karadzˇic ´ et al. (IT-95-5-I), Indictment, 24 July 1995.
97
Milos ˇevic ´ (IT-01-51-I), Indictment, 22 November 2001.
98
Elaine Sciolino, ‘US Names Figures it Wants Charged with War Crimes’, New York Times,
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.
C R E AT I O N O F T H E T R I B U N A L S 19
Stephen, writing in the Guardian, ‘[t]he report is intended for use by a future
tribunal. Under the US plan, which is still being formulated, the Serbian
president, Slobodan Milosˇevic´, and the Serbian leader in Bosnia, Radovan
Karadzˇic´, are among those who may face trial for alleged war crimes.’
100
Support from some countries in Western Europe was still uncertain. Britain
was said to have expressed misgivings about the practicalities of a court.
101
France, on the other hand, appeared keen to advance the agenda. On 16
January 1993, French Foreign Minister Dumas appointed a Commission of
Jurists, chaired by Pierre Truche, to draft its own proposal for a war crimes
tribunal.
102
On 22 February 1993, on a proposal from France,
103
the Security Council
instructed the Secretary-General ‘to submit for consideration by the Council
at the earliest possible date, and if possible no later than sixty days after the
adoption of the present resolution, a report on all aspects of this matter,
including specific proposals and where appropriate options for the eVective
and expeditious implementation of the decision in paragraph 1 above, taking
into account suggestions put forward in this regard by Member States’.
104
During the debate on what would become Security Council Resolution 808,
four permanent members spoke enthusiastically about the proposal, while the
fifth, the People’s Republic of China, was more reserved, although it did vote
in favour. Jean-Bernard Me´rime´e, French Ambassador to the United Nations,
focused on the need ‘to do justice to the victims and to the international
community’, to ‘send a clear message to those who continue to commit these
crimes that they will be held responsible for their acts’, and, finally, on the
Security Council’s ‘duty to maintain and restore peace’. The United States
representative, Madeleine K. Albright, argued that States could not eradicate
minorities in order to achieve ethnic purity, and spoke of encouraging ‘the
emergence of peaceful, multi-ethnic democracies’. She said that President Bill
Clinton ‘has long supported the establishment of a war-crimes tribunal at the
100
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 d’E
´
tat franc¸ais, M. Dumas, au Procureur ge´ne´ral, M. Truche,
concernant la constitution d’un Comite´ de juristes devant se pencher sur les questions
souleve´es par la cre´ation d’un tribunal pe´nal international’, 16 January 1993, English
translation in The Path to The Hague, p. 73.
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’.
20 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
United Nations to bring justice and deter further atrocities in the former
Yugoslavia’.
105
According to Professor Michael Scharf:
From the beginning, the Security Council’s motives in creating the tribu-
nal were questionable. During the negotiations to establish the court . . . it
became clear that several of the Security Council’s permanent members
considered the tribunal a potential impediment to a negotiated peace
settlement. Russia, in particular, worked behind the scenes to try to ensure
that the tribunal would be no more than a Potemkin court. The United
States’ motives were also less than pure. America’s chief Balkans negotiator
at the time, Richard Holbrooke, has acknowledged that the tribunal was
widely perceived within the government as little more than a public
relations device and as a potentially useful policy tool.
106
German Foreign Minister Klaus Kinkel said subsequently that the 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 Insider’s Guide to the ICTY, vol. II,
pp. 211–310.
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
Nations addressed to the Secretary-General’, UN Doc. S/25594 (1993).
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
‘Letter dated 20 April 1993 from the Permanent Representative of Canada to the United
Nations addressed to the Secretary-General’, UN Doc. S/25652 (1993).
C R E AT I O N O F T H E T R I B U N A L S 21
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 modification, on 25 May 1993, unanimously adopted the
draft statute proposed by the Secretary-General.
120
At the time, there was considerable uncertainty about the power of the
Security Council to establish such a criminal tribunal,
121
and it has been
suggested by some commentators that it actually acted beyond the powers
granted to it by the Charter of the United Nations.
122
Such institutions do
not figure in the list of measures proposed by article 41 of the Charter, and
although the enumeration is not exhaustive, this has been described as ‘[t]he
most far-reaching use of Art. 41 ordering measures not listed’.
123
In a 1954
advisory opinion, the International Court of Justice acknowledged the
power of United Nations organs to entrust their powers to subsidiary
bodies including tribunals,
124
something that is authorised, with respect
to the Security Council, under article 28 of the Charter. But the Tribunal is
not entirely subordinate to the Council; its judges are elected by the
General Assembly, and the Secretary-General nominates its Prosecutor.
It took somewhat more than a year for the ICTY to get up and running.
Observers were sceptical that it would ever function eVectively. Theodor
Meron of New York University, who eight years later would be elected 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
Insider’s Guide to the ICTY, vol. I, pp. 363–462.
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. 23–34, 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 39–43)’, in Bruno Simma et al., eds., The Charter
of the United Nations, Oxford: Oxford University Press, 1994, pp. 605–639, at p. 626.
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.
22 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
first judges were solicited,
126
and elections were held by the General Assembly
in November 1993. The judges met for the first time at the end of the year, and
by early 1994 they were busy drafting the Rules of Procedure and Evidence
and studying such matters as the establishment of a detention centre. The
Secretary-General identified a prosecutor, who was then formally appointed
only to resign before ever really beginning the work.
127
A new search began,
but it was not until July 1994 that consensus was reached on Richard Gold-
stone, a distinguished South African judge who had recently been appointed
to that country’s new Constitutional Court.
128
First indictments were issued
in late 1994,
129
and by the end of the year the Tribunal actually had a few
suspects in custody, although they were minor players in the war.
On 2 October 1995, even before its first trial had actually begun, the
Appeals Chamber of the ICTY issued what is surely its most significant ruling.
The first accused to be taken into custody, Dusˇko Tadic´, had challenged the
jurisdiction of the Tribunal on a number of grounds, including the legality of
its creation and the extent of the application of international law to the
internal conflicts in the States of the former Yugoslavia. Predictably, the
Appeals Chamber dismissed the claim that it was improperly created. What
was more surprising was its bold and innovative approach to the scope of
international criminal justice with respect to internal armed conflicts and even
during peacetime. The drafters of the Statute had approached the issue of
applicable law quite conservatively, borrowing legal texts from instruments
adopted during the 1940s and at least implicitly taking the position that
international criminal law had not really developed since then. The Tadic ´
jurisdictional decision departed from the texts, and above all from an 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 first person to be indicted was Dragan Nikolic´, for grave breaches of the Geneva
Conventions, violations of the laws or customs of war and crimes against humanity
committed when he was the commander of the Susica camp in north-eastern Bosnia
and Herzegovina in the summer of 1992: Dragan Nikolic ´ (IT-94-2-I), Indictment, 4
November 1994. He was eventually arrested, by the Multinational Stabilisation Force
(SFOR), on or about 20 April 2000, pleaded guilty, and was sentenced to a prison term
of twenty-three years. Dragan Nikolic ´ (IT-94-2-S), Sentencing Judgment, 18 December
2003. The sentence was reduced to twenty years by the Appeals Chamber. Dragan Nikolic ´
(IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005.
130
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995.
C R E AT I O N O F T H E T R I B U N A L S 23
The Tadic ´ trial began on 7 May 1996, and finished about a year later. The
defendant was an insignificant personality in the conflict. The Tribunal simply
did not have any high-profile defendants in custody, although it had begun to
indict some. It had no cooperation from the governments in the region and, at
least initially, little assistance from the NATO-led peace support forces who
controlled the situation on the ground in Bosnia and Herzegovina after the
Dayton Agreement was adopted. In order to catch defendants by surprise, the
ICTY issued many confidential indictments, a practice it later abandoned
when it realised that publicity actually induced accused persons to surrender.
By 2000, the Tribunal was thriving, with several ongoing trials, defendants
who had played leadership roles in the conflicts, an experienced professional
staV and a budget of well over $100 million per annum. The ICTY also
developed new legal doctrines to facilitate prosecution in this unique and
specialised area. The most important was the concept of ‘joint criminal
enterprise’, first enunciated by the Appeals Chamber in July 1999.
131
Although
not set out in the Statute of the ICTY, joint criminal enterprise allowed
conviction of participants in atrocities even in the absence of proof that they
had personally perpetrated the heinous acts or even knew they would be
committed. To the extent that the crimes were committed by other members
of the enterprise, and that they were reasonably foreseeable, a conviction
would lie, if there had been a common purpose to commit an act prohibited
by the Statute, such as ethnic cleansing.
A temporary body by its very nature, attention soon began shifting to the
conclusion of the work of the ICTY. By 2002, it had announced its ‘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 Milosˇevic´, while continuing to put inter-
national pressure to bear in the hopes of securing custody over its three most
wanted men, Radovan Karadzˇic´, Ratko Mladic´ and Ante Gotovina.
Establishing the International Criminal Tribunal for Rwanda
The ICTY was not even fully operational when reports hit the international
media of terrible atrocities being committed within the context of a civil war
in Rwanda, a former Belgian mandate in central Africa. The backdrop was
an historic conflict between two ethnic groups, the majority Hutu who had
governed the country since independence, and the minority Tutsi, who
131
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 220.
132
On the ‘completion strategy’, see below at pp. 40–43.
24 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
had dominated it during the colonial period. Since decolonisation, a series of
pogroms had driven waves of Tutsi refugees into neighbouring countries.
When denied their right to return, they launched a military assault, in 1990.
A peace agreement, reached in August 1993, ensured repatriation for the
refugees and installed a power-sharing government, with a transition to be
supervised by a United Nations peacekeeping mission.
133
Within hours of the assassination of President Habyarimana, on 6 April
1994, it became evident that Hutu extremists who had not accepted the peace
agreement had set sinister plans. This time, they intended to go beyond the
earlier strategy involving persecution of the Tutsi with a view to expulsion.
Soon journalists, diplomats and human rights activists began speaking of
genocide being committed. As civil war raged during April, May and June,
hundreds of thousands of Tutsi, as well as those ‘progressive Hutu’ who stood
in the way of the murderous enterprise, were butchered. The United Nations
mission did little to prevent the carnage, and the Security Council actually
ordered the withdrawal of most of the peacekeepers. By mid-July, the superior
military forces of the Tutsi-led Rwandese Patriotic Front had routed the
ge´nocidaires. Estimates of the carnage vary from 500,000 to 1 million and
even more.
134
In contrast with the wars in the Balkans, from the first weeks of the
Rwandan genocide the Security Council used language indicating its new
focus on individual criminal accountability. It initially condemned the 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 confirmed the Council’s 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´ n˜ez-Barnuevo: UN Doc. S/PV.3377
(16 May 1994).
C R E AT I O N O F T H E T R I B U N A L S 25
of serious violations of international humanitarian law committed during
the conflict’.
138
Czech diplomat Karol Kovanda spoke in the Council of
the importance of the report, adding that once it was delivered ‘we will want
to know how those responsible will be brought to justice’.
139
On 8 June 1994, a
Security Council resolution finally used the word ‘genocide’, noting ‘reports
indicating that acts of genocide have occurred in Rwanda’ and stating
that ‘genocide constitutes a crime punishable under international law’.
140
Referring to the preambular reference to genocide, Ambassador Kovanda
said he was looking ‘beyond the horizon’ of the resolution to such measures
as a fact-finding mission to be established by the Security Council, and
the determination that certain organisations participating in the carnage
might be deemed ‘criminal organisations’. The Argentine representative,
Cardenas, said that genocide ‘must be investigated and those responsible
cannot go unpunished’.
141
In the meantime, the United Nations Commission on Human Rights was
convened in an extraordinary session, and a special rapporteur was designated
to make a prompt analysis of the situation.
142
Professor Rene´ Degni-Segui, a
law professor from Coˆ te d’Ivoire with a distinguished human rights profile,
visited Rwanda in June 1994, accompanied by two other United Nations
human rights experts, Bacre Waly Ndiaye and Nigel Rodley, and confirmed
the worst. Degni-Segui said the massacres were without precedent in Africa,
noting that they were systematic and that the media had incited them.
Referring to the definition of genocide in the 1948 Convention, he said there
was evidence that the elements of that crime were present. He said the United
Nations should either establish an international ad hoc tribunal or enlarge the
jurisdiction of the existing tribunal for the former Yugoslavia in order to bring
those responsible for genocide to justice.
143
On 1 July 1994, the Security Council, which had been slow to react when
the genocide was actually taking place, voted to establish a commission of
experts, similar in structure and mandate to the one created for the former
Yugoslavia nearly two years earlier.
144
The Council expressed its ‘grave
concern at the continuing reports indicating that systematic, widespread
and flagrant violations of international humanitarian law, including acts of
138
UN Doc. S/RES/918 (1994), para. 18.
139
UN Doc. S/PV.3377 (16 May 1994).
140
UN Doc. S/RES/925 (1994), preamble.
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. 16–18.
26 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
genocide, have been committed in Rwanda’, and recalled that ‘all persons who
commit or authorise the commission of serious violations of international
humanitarian law are individually responsible for those violations and
should be brought to justice’.
145
New Zealand made it clear that this was
only an initial step, and its Ambassador Colin Keating referred specifically to
the recently established criminal tribunal for the former Yugoslavia. The
Commission, composed of the former president of Togo’s Supreme Court,
Atsu-KoY Amega, the Attorney General of Guinea, Habi Dieng, and Salifu
Fomba, a Malian member of the United Nations International Law 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 first met in mid-August, in
Geneva, and then set oV to Rwanda to begin investigations. Even as they
began their work, the three experts indicated they would recommend the
establishment of an international tribunal.
147
But the idea had actually been circulating seriously since the end of June,
when United States Secretary of State Warren Christopher indicated his
government’s support for an international war crimes tribunal for Rwanda.
148
In early August, a senior United States Department of State oYcial, John
Shattuck, visited Kigali and convinced Rwanda’s new regime to go along with
the idea.
149
On 28 September 1994, Rwanda formally requested the United
Nations to establish a tribunal.
150
Moreover, in his October 1994 address to
the United Nations General Assembly, President Pasteur Bizimungu of
145
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.
C R E AT I O N O F T H E T R I B U N A L S 27
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 ICTY’s jurisdiction so as to handle cases from Rwanda
rather than the creation of a totally new institution.
153
In response to concerns
that this approach might send a signal that the Rwanda tribunal was of
subordinate status to its Yugoslav counterpart,
154
the United States, joined
by New Zealand, circulated a revised proposal for an independent entity, with
its own trial chambers, but with a shared appeals chamber and prosecutor.
155
This time China, which had accepted the 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 conflicts, which had been so brutal
and barbaric, had taken place in front of the television camera, making it impossible to
set up a process for prosecuting one group of perpetrators and not the other. Nevertheless,
the Rwanda Tribunal was an afterthought, a fact underscored by its grafting to the
Yugoslav Tribunal.’ See: Makau Mutua, ‘From Nuremberg to the Rwanda Tribunal:
Justice or Retribution?’, (2000) 6 BuValo Human Rights Law Review 77, at p. 85.
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
Raymond Bonner, ‘UN Commission Recommends Rwanda ‘‘Genocide’’ Tribunal’, New
York Times, 29 September 1994, p. 13.
28 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
the Rwandan genocide was an essentially internal matter, and China was
troubled about the precedent of a Security Council-mandated body venturing
into the domaine reserve´ of sovereign States. China did not obstruct the
process, however, and abstained in the final vote.
The real diYculties came from the new Rwandan regime itself. While
supporting the proposal in principle, it disagreed with many of the modalities.
By pure chance, Rwanda was actually serving a two-year term as an elected
member of the Security Council. But after initially promoting the idea with
some enthusiasm, Rwanda became increasingly negative about the venture as
the negotiations wore on.
157
‘The realization that an international tribunal is
not equipped to undertake a prosecution of thousands of detainees was
probably one of the reasons for which the Government of Rwanda eventually
withdrew its support for the International Tribunal’, observed two United
Nations insiders.
158
Rwanda expressed several disagreements with the form
the tribunal was taking, including the prohibition of capital punishment, the
limitation on temporal jurisdiction to the 1994 calendar year, the lack of an
independent prosecutor and appeals chamber, a desire to exclude nationals of
‘certain countries’ believed to be complicit in the genocide from nominating
judges, the possibility that sentences might be served outside Rwanda, and the
refusal to commit to locating the seat of the tribunal within Rwanda itself.
Adoption of the Security Council resolution was delayed by a week, as United
Nations legal adviser Hans Corell travelled to Kigali to try to win the support
of Rwanda.
159
He was unsuccessful, and Security Council Resolution 955 was
adopted on 8 November 1994 with one dissenting vote, that of Rwanda,
160
and an abstention, from China.
161
157
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 finds diYcult to accept’. UN
Doc. S/PV.3453, p. 11 (1994).
C R E AT I O N O F T H E T R I B U N A L S 29
As it had done a year earlier in establishing the ICTY, the Security Council
made an explicit reference to Chapter VII of the Charter. It determined that
‘genocide and other systematic, widespread and flagrant violations of 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. Specifically, the war crimes provisions reflect the fact that
the Rwandan genocide took place within the context of a purely internal
armed conflict, and there are also minor diVerences in the definition of
crimes against humanity.
The first trial judges were elected in early 1995, and formally sworn into
oYce in June. There was no need to recruit a new prosecutor or to find
appellate judges, because the Statute simply added these to the responsibilities
of the corresponding institutions at the ICTY. The Tribunal issued its first
indictments on 12 December 1995, accusing eight persons of genocide
with respect to the mass killing of several thousand men, women and children
in the Kibuye Prefecture of western Rwanda.
163
By March 1996, the interim
military ruler of Rwanda during the genocide was taken into custody, a 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, firing the two most senior oYcials of the
Tribunal, the Registrar and the Deputy Prosecutor. There were also severe
problems with unethical defence lawyers, who took legal aid fees from
the Tribunal but then split them with their clients. The Rwandan prisoners
were fractious and uncooperative, sometimes going on hunger strikes or
refusing to attend trials. Relations with Rwanda itself, whose cooperation was
162
‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolu-
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.
30 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
essential for investigations, were often stormy. Trials were tediously slow,
with some defendants being held in detention for several years before
actually having their day in court. Frustrated by irregularities in the arrest
and detention of suspects, the Appeals Chamber granted the motion of an
important defendant and permanently stayed all proceedings in the case.
Enraged at the resulting impunity, Rwanda threatened it would block all
access of ICTR oYcials to its territory, a move that would eVectively shut
down the institution’s ability to operate. A diVerently constituted Appeals
Chamber ate humble pie, and reversed the decision.
164
The ICTR was always somewhat smaller in scale than the ICTY, and its
budget reflected this. It suVered from the isolation of Arusha, which 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 definitively 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 codification and progressive development
of international law. The Commission’s interim reports, issued in the early
1990s, no doubt influenced the drafters of the ad hoc tribunal statutes. The
final version of the Commission’s draft statute, submitted to the General
Assembly in 1994, looked rather like a permanent version of the ad hoc
tribunals. Aside from similarities in structure and subject-matter jurisdiction,
an essential feature of the proposed International Criminal Court was its
subordination to the Security Council.
The General Assembly laboured over the Commission’s draft for four years,
culminating in the 1998 Diplomatic Conference at which the Rome Statute of
the International Criminal Court was adopted. The text had been dramatically
modified from the original conception of the International Law Commission.
Many of the changes were of a highly technical nature. The definitions of
crimes were presented in great detail, in comparison with the relatively laconic
provisions of the ad hoc tribunal statutes. To some extent, they reflected
interpretations of the scope of the crimes that had been developed in the
early case law of the ICTY. But the major substantive diVerence was a
considerable weakening of Security Council control over the Court. Although
164
The Barayagwiza case is discussed below at pp. 538–541.
C R E AT I O N O F T H E T R I B U N A L S 31
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 ratifications or accessions. But the Statute specified
that it could only apply to acts committed subsequent to its entry into force.
The rapid pace of ratification meant that a growing number of countries
facing the kinds of conflicts and tensions likely to attract international 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 ICC’s temporal,
geographic or personal jurisdiction. The civil war that raged in Sierra Leone
during the 1990s is one such case.
The establishment of the two ad hoc tribunals, in 1993 and 1994, prompted
many other initiatives aimed at creating similar institutions as mechanisms for
post-conflict justice. It became increasingly evident that it was unlikely the
Security Council would repeat what it had done for the former Yugoslavia and
Rwanda. The post-Cold War euphoria that had contributed to unanimity in
the Council during the early 1990s began to wane. Moreover, political interests
of permanent members of the Security Council in specific circumstances
meant an international tribunal option was unlikely to succeed. This was
notably the case with respect to Cambodia, where Chinese interests, not to
mention those of Russia and France, discouraged the creation of an ad hoc
tribunal by the Security Council. There was also considerable frustration
amongst those wealthy countries who provided most of the funding for the
tribunals with the spiralling costs of the two institutions. Finally, there was the
suggestion that the United States was seeking to experiment with other modes
of post-conflict justice as a kind of antidote to the International Criminal
Court, to which it was increasingly hostile.
165
William A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All
About the Security Council’, (2004) 15 European Journal of International Law 701.
32 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
The Secretary-General also showed increased unwillingness to support
proposals to create new judicial institutions. When in 1999 three experts
appointed by the Secretary-General to examine alternative justice mechanisms
for Cambodia reported back that an international tribunal was the only really
viable solution, the Secretary-General reacted cautiously. Noting that this was
a matter for decision by the Security Council alone, he nevertheless betrayed a
preference for other options.
166
The Group of Experts had suggested, for
example, that a tribunal might be established by the Security Council acting
under Chapter VI of the Charter, rather than Chapter VII, something that
would require the consent of Cambodia.
167
It also considered the creation of a
tribunal by the General Assembly,
168
and even by the Secretary-General
himself or the Economic and Social Council.
169
Eventually, discussion quickly
coalesced on an approach using national courts with significant international
involvement. Years of frustrating negotiations ensued as the United Nations
struggled to establish a post-conflict justice institution in Cambodia.
In early 2000, an international fact-finding commission for East Timor
created by the Commission on Human Rights proposed the establishment of
an ‘international human rights tribunal’, which was to consist of judges
appointed by the United Nations, preferably with the participation of 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
Journal of International Law 948.
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. 408–409.
C R E AT I O N O F T H E T R I B U N A L S 33
Inter-American Court of Human Rights. Again, the Secretary-General
stopped short of endorsing a call for a new international tribunal, confining
himself to the uncontroversial mantra that perpetrators should be held
accountable for their actions.
171
Establishing the Special Court for Sierra Leone
Located on the West African coast, Sierra Leone is a former British colony that
was ruled by a succession of corrupt autocrats until rebellion broke out in
1991. To the extent that the rebels were animated by any progressive reform
agenda, this quickly disappeared as the conflict degenerated into a campaign
of brutality and atrocity whose principal victims were the rural peasants. Only
in 1999 did the rebel groups advance on the capital, Freetown, destroying
much of the city and prompting the fragile government to sue for peace. The
Lome´ Peace Agreement, reached on 7 July 1999, provided for a power-sharing
government in which the rebel Revolutionary United Front would be given
cabinet positions. Combatants on all sides were granted an amnesty.
The parties to the Agreement were the Government of Sierra Leone and the
Revolutionary United Front, but it received the benediction of what were called
the ‘moral guarantors’, including Togo, the Commonwealth, the Economic
Community of West African States (ECOWAS), the Organization of African
Unity (OAU, 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 fighting 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.
34 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
had been established, but after its enabling legislation had been adopted. The
Government quickly mastered the situation, arresting many Revolutionary
United Front supporters and, in eVect, shifting in its favour the fragile balance
in the power-sharing that had been negotiated at Lome´. Then the Government
of Sierra Leone ‘reassessed’
174
its position with respect to the amnesty. Sierra
Leone’s President Kabbah wrote to the Security Council requesting that it
establish an international tribunal to prosecute members of the Revolutionary
United Front.
175
The President explained that ‘[t]he purpose of such a court
is to try and bring to credible justice those members of the Revolutionary
United Front (RUF) and their accomplices responsible for committing crimes
against the people of Sierra Leone and for the taking of United Nations
peacekeepers as hostages’. He made explicit reference to the amnesty in the
Lome´ Agreement:
As you are aware, the atrocities committed by the RUF [Revolutionary
United Front] in this country for nearly 10 years in its campaign of terror
have been described generally as the worst in the history of civil conflicts.
In July 1999, my Government and the leadership of the RUF signed the
Lome´ Peace Agreement. The aim of this Agreement was to bring peace and
a permanent cessation to those atrocities and the conflict. As a prize for
such peace, my Government even conceded to the granting of total
amnesty to the RUF leadership and its members in respect of all the acts
of terrorism committed by them up to the date of the signing of that Peace
Agreement.
176
But Kabbah said that the Revolutionary United Front had ‘since reneged on
that Agreement’. Attached to the letter was a proposed ‘Framework for the
special court for Sierra Leone’. It stressed that the purpose of the court would
be to prosecute members of the Revolutionary United Front:
The mandate of the court could be designed to be narrow in order to
prosecute the most responsible violators and the leadership of the 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.
C R E AT I O N O F T H E T R I B U N A L S 35
Nowhere did President Kabbah attempt to clarify whether the Court was to
be confined to post-Lome´ oVences, thereby respecting the amnesty provision
in the Lome´ Agreement, or whether he intended for it to override the amnesty.
The Security Council responded positively to Kabbah’s request. On 14
August 2000, in Resolution 1315, the Council instructed the Secretary-General
to negotiate an agreement with the Government of Sierra Leone with a view to
establishing a special court. The Resolution’s preamble noted that ‘the Special
Representative of the Secretary-General appended to his signature of the Lome´
Agreement a statement that the United Nations holds the understanding that
the amnesty provisions of the Agreement shall not apply to international
crimes of genocide, crimes against humanity, war crimes and other serious
violations of international humanitarian law’.
178
The Resolution addressed a
number of specific details concerning jurisdiction and related matters,
although it did not speak specifically to the issue of the amnesty, nor did it
propose the temporal jurisdiction of the new tribunal (something which
would have, indirectly, indicated a position on the amnesty issue, because
had the Council stated that the court would have jurisdiction over pre-Lome´
oVences this would have implied a retraction of the amnesty). The Resolution
‘[r]ecogniz[ed] that, in the particular circumstances of Sierra Leone, a credible
system of justice and accountability for the very serious crimes committed
there would end impunity and would contribute to the process of national
reconciliation and to the restoration and maintenance of peace’.
179
The
Council flagged the significance of the Truth and Reconciliation Commission
(it had also done this in its August 1999 resolution welcoming the Lome´
Agreement), which had been created largely in response to the amnesty.
180
There was no reference to the Revolutionary United Front in the Council
Resolution. Instead, it said that the proposed court should have jurisdiction
over all perpetrators, whatever their political aYliation: ‘Recommends further
that the special court should have personal jurisdiction over persons who bear
the greatest responsibility for the commission of [crimes against humanity,
war crimes and other serious violations of international humanitarian law],
including those leaders who, in committing such crimes, have threatened the
establishment of and implementation of the peace process in Sierra Leone.’
181
Following talks between the United Nations and the Government of Sierra
Leone, in early October 2000 the Secretary-General presented a draft statute
178
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 Leone’s
Parliament in February 2000, although the Commission did not become operational
until July 2002.
181
Ibid., operative paragraph 3.
36 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
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-General’s 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 significant diVerences. Besides the mixed regime for appointment of
judges and prosecutors, funding of the institution was to be facilitated by
voluntary contributions from States rather than from the general coVers of the
United Nations. Although the Secretary-General’s report did not refer to the
182
‘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
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915, para. 24.
185
Ibid., para. 24.
C R E AT I O N O F T H E T R I B U N A L S 37
experience of the two existing ad hoc tribunals as a justification for some of its
proposals, the configuration of the court was clearly influenced by lessons the
United Nations had learned from its experience with international justice in
the former Yugoslavia and Rwanda. From the earliest days of the ICTY, an area
of great controversy had been whether prosecution should be directed towards
certain categories of oVenders. Especially in its early years, the ICTY had
proceeded against a number of very minor and insignificant participants in
the conflict, and even the ICTR had pursued some relatively low-level culprits.
The Security Council resolution indicated that the Sierra Leone court should
only prosecute ‘those who bear the greatest responsibility’, something the
Secretary-General said was an indication of a limitation on the number of
accused by reference to their command authority and the gravity and scale of
the crime. ‘I propose, however,’ wrote the Secretary-General, ‘that the more
general term ‘‘persons most responsible’’ should be used.’
186
Negotiations concerning the draft statute of the proposed court continued
for more than a year. There were several written exchanges between the
Secretary-General and the Security Council on specific details, something that
had not occurred with the two earlier tribunals.
187
On the other hand, after
the initial consultations in September 2000, there is no evidence of any
subsequent contribution of a significant and substantial nature from the
Government of Sierra Leone to the shape of the new institution.
188
The
obstacle to the immediate establishment of the Court was funding. The
Secretary-General met with the Security Council on 1 June 2001, outlining
the poor response to his appeal for support and opening the debate about ‘the
need to downsize the operation of the Special Court commensurate with the
amount of funds likely to be made available’.
189
Not until late 2001 had
suYcient pledges been received and funds deposited for the Secretary-General
to proceed to establish the Court. On 16 January 2002, a formal agreement
186
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.
38 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
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 notified each other in writing that the legal
requirements for entry into force had been complied with.
A few months later, in March 2002, the Parliament of Sierra Leone enacted
legislation concerning implementation of the Statute.
192
The purpose of the
legislation was to provide a legal framework for the activities of the Court
within Sierra Leone, and to impose obligations upon the Government of
Sierra Leone to cooperate with the Court. The Memorandum of Objects
and Reasons stated that the object of the Bill was to make provision for the
ratification and implementation of the Agreement between the Government
and the United Nations. The preamble of the Act said that the Agreement had
been signed under the authority of the President, but that ratification by Act
of Parliament was a requirement. On 11 April 2002, Sierra Leone’s Minister of
Foreign AVairs, Ahmed Ramadan Dumbuya, wrote to the Secretary-General
to inform him that with presidential assent to the Special Court Act on 29
March 2002, Sierra Leone was in compliance with the legal requirements for
entry into force of the Agreement. The same day, a reciprocal message was
transmitted to Sierra Leone from Hans Corell and, accordingly, the Agreement
entered into force on 12 April 2002.
193
When the SCSL judges were sworn into oYce in December 2002, the
institution became fully operational. Its ambitions were always much more
modest than those of the 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
benefited 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 (Ratification) 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.
C R E AT I O N O F T H E T R I B U N A L S 39
President Charles Taylor escaped justice when he obtained asylum in Nigeria.
But a senior cabinet minister in the government was arrested, as were other
leaders of the various warring factions. The Court authorised the indictments
of the nine defendants in custody to be joined in three groups, based upon
the combatant organisation to which the accused had belonged. Two of the
trials began in June 2004, and the third in early 2005. The Court will not
finish its work within the projected three-year deadline, but it should not be
too far behind.
Completing the work of the tribunals
The relevant materials concerning the establishment of the ICTY give little
guidance as to when its work is to be completed. The Statute itself leaves open
the end point of temporal jurisdiction. Nevertheless, the Secretary-General’s
Report on the draft ICTY Statute said that ‘[a]s an enforcement measure
under Chapter VII, however, the life span of the international tribunal would
be linked to the restoration and maintenance of international peace and
security in the territory of the former Yugoslavia, and Security Council
decisions related thereto’.
194
Accordingly, the Security Council Resolution
establishing the ICTY ascribes jurisdiction over crimes committed ‘between
1 January 1991 and a date to be determined by the Security Council upon the
restoration of peace’.
195
When it created the ICTR, the Council decided that
prosecutions could only address acts committed in the calendar year 1994.
196
But even then, at the rate at which each tribunal has operated, there are
enough suspects to keep them going for many decades.
It would seem that ad hoc tribunals are almost by definition confronted
with the diYculty of knowing when to stop. Yet they develop a momentum of
their own that soon becomes unhinged from the rationale that justified their
creation in the first place. Hundreds, perhaps thousands, of professionals and
other employees depend upon the tribunals for their livelihood and this, too,
is a factor that complicates debate about ‘completion’. Perhaps only intuitively,
in establishing the third of the ad hoc tribunals, the Secretary-General 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-General’s Report on the draft SCSL Statute said the lifespan of
the Court would be determined by a subsequent agreement between the
parties, referring to ‘an indication of the capacity acquired by the local courts
to assume the prosecution of the remaining cases, or the unavailability of
194
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
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.
40 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
resources’ as the relevant considerations.
197
The original draft documents
prepared by the Secretary-General envisaged terms of appointment of four
years for judges and for the Prosecutor, but this was reduced to three years in
the final version. In correspondence with the Security Council, the United
Nations Secretary-General spoke of ‘a functioning Court over three years,
which in my view is the minimum time required for the investigation,
prosecution and trial of a very limited number of accused’.
198
The first annual
report of the Court makes reference to ‘the Court’s third and final year’.
199
The
budget projections made it clear that the SCSL would handle a very limited
number of cases, and would aim to complete its trials at first instance within
three years of the start of operations.
The ICTY did not begin seriously discussing the issue of concluding its
work until 2000.
200
Following the analysis of the operations of the Tribunal by
a five-member expert panel, the judges presented a report to the 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 fulfil its mission before 2016’. The projection did take
appeals into account.
201
The judges said that if a number of modifications
were made, including the designation of ad litem judges, trials could be
completed by 2007.
202
The Security Council reacted by authorising the
appointment of ad litem judges. The Resolution, which amended the Statute,
linked this measure with the need for both tribunals ‘to expedite the 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 first instance in 2008, and
shut its doors by 2010.
204
In addition to various structural reforms, the
strategy involved focusing on ‘trying the most senior oVenders of crimes
which most seriously violate international public order’ as well as referring
197
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915, para. 28.
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
Journal of International Law 158.
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
UN Doc. S/RES/1329 (2000), preamble.
204
UN Doc. S/2002/678, p. 5.
C R E AT I O N O F T H E T R I B U N A L S 41
cases from the ICTY to national courts.
205
The Security Council confirmed its
agreement with the strategy.
206
At a special plenary held in September 2002, the ICTY judges amended the
RPE to authorise the transfer of cases from the ICTY to national courts.
207
Only two years earlier, they had rejected the proposal on a number of
grounds.
208
In early 2003, the Tribunal reached an agreement with the OYce
of the High Representative for Bosnia and Herzegovina concerning the 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 first
draft of the ICTR’s 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 – Serbia’s 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.
42 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
Pressure on the tribunals to finish their work came from Washington, and
did not sit well with everyone.
216
The Parliamentary Assembly of the Council
of Europe adopted a resolution condemning this: ‘Pressure from the United
States administration to close down the two International Criminal Tribunals
in The Hague and in Arusha is unacceptable. It represents political 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 first instance by the end of 2008, and to complete all work in
2010.
220
After a presentation from the two Presidents of the tribunals hinted
that there might be diYculties in fully respecting the dates set out in the
completion strategy, the Security Council adopted another resolution
reaYrming their importance. The Security Council specifically addressed the
Prosecutors of the two tribunals, calling upon them to determine cases that
should be transferred to competent national jurisdictions. The Resolution
called upon the tribunals ‘in reviewing and confirming any new indictments,
to ensure that any such indictments concentrate on the most senior leaders
suspected of being most responsible for crimes within the jurisdiction of the
relevant Tribunal’. Finally, the Council required the President and Prosecutor
to submit a twice-yearly report on progress in implementing the completion
strategy, ‘including the transfer of cases involving intermediate and lower rank
accused to competent national jurisdictions’.
221
216
Sean D. Murphy, ‘Contemporary Practice of the United States Relating to International
Law’, (2002) 96 American Journal of International Law 461, at p. 483.
217
Ibid.
218
Gregory P. Lombardi, ‘Legitimacy and the Expanding Power of the ICTY’, (2003) 37 New
England Law Review 887, at pp. 895–896.
219
Milos ˇevic ´ (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).
C R E AT I O N O F T H E T R I B U N A L S 43
Legacy of the tribunals
The judgments at Nuremberg and Tokyo and the various national war crimes
trials associated with them provided the first substantial judicial basis for the
law of war crimes and crimes against humanity. Some of the principles
elaborated in this jurisprudence were further developed in the all-too-rare
judgments of national courts in the decades that followed, such as 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 definitions and scope of war crimes,
crimes against humanity and genocide have been explored, along with the
various forms of participation and liability, the available excuses, justifications
and defences, procedural matters, issues concerning the rights of the accused,
and the relevant considerations in determining appropriate penalties. Their
jurisprudential legacy is the principal subject of this book.
There can be no doubt that the case law of the international criminal
tribunals will provide immense guidance to the International Criminal Court,
as it begins its work. There are significant diVerences in the applicable law of
the ICC, when compared with that of the ad hoc tribunals, but there is also
much common ground. Where judges at the ICC depart from the precedents
set by the ad hoc tribunals, they will feel compelled to explain this, and make
the relevant distinctions, just as the judges at the ad hoc tribunals have done
when they identified principles of customary law that are at variance with the
Rome Statute.
Already, the legal principles and norms developed by the United Nations
international criminal tribunals have been influential in the work of the
so-called ‘hybrid’ courts, like those established by the United Nations in East
Timor and Kosovo. There is also increasing evidence that national courts are
relying upon the case law of the international tribunals.
225
For example, in the
United States some judges have turned to ICTY and ICTR precedents in
222
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
Fe´de´ration nationale des de ´porte ´s et interne´s re´sistants 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. 169–170.
44 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
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 defining the scope of the oVence of
inciting genocide.
232
Referring to crimes against humanity, which appear in
Canadian criminal law and immigration law, the Supreme Court said:
‘Though the decisions of the ICTY and the ICTR are not binding upon
this Court, the expertise of these tribunals and the authority in respect of
customary international law with which they are vested suggest that their
findings should not be disregarded lightly by Canadian courts applying
domestic legislative provisions.’
233
The Supreme Court of Canada reversed
its earlier conclusion, in Finta, that all crimes against humanity required
proof of a discriminatory intent, in light of subsequent case law of the ICTY
and ICTR specifying that this element was only relevant to the crime against
humanity of persecutions.
234
Modestly, it also noted that its position
on the mental element of crimes against humanity had been endorsed by
international case law.
235
South Africa’s Constitutional Court has referred to ICTY cases with respect
to the scope of war crimes.
236
In Australia, ICTR precedents have been cited
226
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. 84–85, 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. 287–292 and
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, paras. 460–469.
235
Ibid., para. 174.
236
State v. Wouter Basson, [2004] CCT 30/03.
C R E AT I O N O F T H E T R I B U N A L S 45
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 defini-
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 Furundzˇija (IT-95-17/1-T), Judgment, 10 December
1998, paras. 144–147, 151, 153–154, Delalic ´ et al. (IT-96-21-T), Judgment, 16 November
1998, para. 454 and Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February
2001, para. 466.
243
MC v. Bulgaria (App. No. 39272/98), Judgment, 4 December 2003, paras. 102–107,
citing – and implicitly criticising – Furundzˇija (IT-95-17/1-T), Judgment, 10 December
1998, paras. 174, 180, 185, Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22
February 2001, paras. 439, 440, 457–460 and Kunarac et al. (IT-96-23/1-A), Judgment,
12 June 2002, paras. 128–129, 132.
46 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
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 latter’s Statute
expressly provides, in Article 27, paragraph 2, that ‘[i]mmunities or
special procedural rules which may attach to the oYcial capacity of a
person, whether under national or international law, shall not bar the
Court from exercising its jurisdiction over such a person’.
1
The Court distinguished this case from that of prosecution before what it
described, in the same paragraph, as ‘foreign jurisdiction’ or, alternatively, a
‘court of one State’. The ICJ did not elaborate on the criteria for determining
how to distinguish between ‘international courts’ and ‘national courts’. But
there can be no doubt that it recognised the distinction between the two types
of bodies and that it also, at least indirectly, pronounced itself on the legality
of the institutions.
The defendants at Nuremberg and Tokyo did not undertake judicial 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 ‘victor’s 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 Prosecutor’s Motion Requesting Protective
Measures for Victims and Witnesses, 10 August 1995, para. 21. Also: Richard
H. Minear, Victor’s Justice: The Tokyo War Crimes Trial, Princeton, NJ: Princeton
University Press, 1971; Payam Akhavan, ‘Enforcement of the Genocide Convention:
A Challenge to Civilization’, (1995) 8 Harvard Human Rights Journal 229; Gerry
J. Simpson, ‘War Crimes: A Critical Introduction’, in Timothy L. H. McCormack and
Gerry J. Simpson, eds., The Law of War Crimes: National and International Approaches,
The Hague: Kluwer Law International, 1997, pp. 1–30, at p. 4.
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
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
tion 808 (1993)’, UN Doc. S/25704 (1993), para. 12.
48 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
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 ratifications will
be received from those States which should be parties to the treaty if it is to be
truly eVective’.
7
This was an understatement: it was out of the question at the
time that the warring States would accept a tribunal, as their subsequent lack
of cooperation with it only confirms. The Secretary-General also rejected the
suggestion that this be an initiative of the General Assembly, as this ‘would not
be reconcilable with the urgency expressed by the Security Council in 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 first defendant, Dusˇko Tadic´, in a motion filed on 23 June
1995.
10
Tadic´’s legal team, led by experienced Dutch and British criminal
lawyers, argued that the creation of the ICTY was illegal, in that the Charter
of the United Nations did not grant the Security Council the authority to
create such a body. They said that an international tribunal could only be
6
See UN Doc. A/RES/47/121, para. 10.
7
Ibid., para. 20.
8
Ibid., para. 21.
9
Ibid., paras. 28–29.
10
There was also some academic support. See: Julio Barboza, ‘International Criminal Law’,
(1999) 278 Recueil des Cours 9, at p. 128; Faı ¨za Patel King, ‘Sensible Scrutiny: The
Yugoslav Tribunal’s Development of Limits on the Security Council’s Powers under
Chapter VII of the Charter’, (1996) 10 Emory International Law Review 509, at pp. 509–
511; JeVrey W. Davis, ‘Two Wrongs Do Make a Right: The International Criminal
Tribunal for the Former Yugoslavia was Established Illegally - But it was the Right Thing
to do . . . So Who Cares?’, (2002) 28 North Carolina Journal of International Law and
Commercial Regulation 395.
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
Tribunal’s creation by reasoning in this way, as some commentators urged.
17
But the Appeals Chamber found that it had jurisdiction to entertain the
11
Tadic ´ (IT-94-1-T), Decision on the Defence Motion on Jurisdiction, 10 August 1995.
12
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995. See: Aaron K. Baltes, ‘Prosecutor v. Tadic ´: Legitimizing the
Establishment of the International Criminal Tribunal for the former Yugoslavia’, (1997)
49 Maine Law Review 577; Christopher Greenwood, ‘International Humanitarian Law
and the Tadic ´ Case’, (1996) 7 European Journal of International Law 265; Jean-Franc¸ois
Marchi, ‘L’aVaire Dusˇko Tadic´ devant le Tribunal. Remarques sur le premier controˆ le de
la le´galite´ d’une re´solution du Conseil de se´curite´’, (1996) 1 L’observateur des Nations
Unies 75; L. G. Maresca, ‘The Prosecutor v. Tadic ´ – The Appellate Decision of the
International Criminal Tribunal for Yugoslavia and Internal Violations of Humanitarian
Law as International Crimes’, (1996) 9 Leiden Journal of International Law 219; Marco
Sasso` li, ‘La premie`re de´cision de la Chambre d’appel du Tribunal Pe´nal International
pour l’ex-Yougoslavie: Tadic ´ (Compe´tence)’, (1996) 100 Revue ge´ne´rale de droit 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 ˇevic ´ (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, 192–193, 196, 174–175.
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. O’Brien, ‘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.
50 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
challenge, noting that this was not a judicial review in any general sense, but
rather a validation of the legality of its own establishment. ‘This power, known
as the principle of ‘‘Kompetenz-Kompetenz’’ in German or ‘‘la compe´tence de
la compe´tence’’ in French, is part, and indeed a major part, of the incidental or
inherent jurisdiction of any judicial or arbitral tribunal, consisting of its
‘‘jurisdiction to determine its own jurisdiction’’’, the Appeals Chamber said.
18
It is a necessary component in the exercise of the judicial function and does
not need to be expressly provided for in the constitutive documents of those
tribunals, although this is often done. Acknowledging a high degree of deference
for Security Council determinations as to the existence of a threat to the peace – a
precondition for action under Chapter VII – the Appeals Chamber rejected the
motion. This preliminary conclusion by the Appeals Chamber cannot, however,
be taken as authority for the existence of any broader jurisdiction within the
Tribunal to review Security Council decisions.
19
Inspired by the ICTY Appeals
Chamber, the SCSL Appeals Chamber has also declared that it is empowered to
pronounce on the validity and legality of its own creation.
20
Within the Charter of the United Nations, articles 29 and 42 are central to
the Security Council’s authority. According to article 29, the Council may
‘establish such subsidiary organs as it deems necessary for the performance of
its functions’. The General Assembly has created a court as a subsidiary body
in the past, and the International Court of Justice endorsed this.
21
As the
Appeals Chamber recalled, the Security Council’s powers and authority are
conditioned by the terms of the Charter.
22
As a body, the Council does not have unlimited powers, and any justifica-
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 conflict in the former Yugoslavia fit clearly within these terms. Even
were the conflict solely internal in nature, past practice of the Security Council
confirmed that this would still fall inside the scope of Chapter VII of the
18
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
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
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 28.
23
Charter of the United Nations, art. 39.
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 51
Charter.
24
The Security Council had in fact made this quite straightforward
with an implicit reference to Chapter VII in Resolution 827, which established
the ICTY, although the Resolution did not point to the specific provision of
Chapter VII on which the Council was relying. Resolution 827 said that ‘in the
particular circumstances of the former Yugoslavia’, the establishment of the
International Tribunal ‘would contribute to the restoration and maintenance
of peace’. The Appeals Chamber noted that article 41, which speaks broadly of
‘measures not involving the use of force’, seemed to do the trick.
25
Moreover, it
added, ‘[a]rticle 39 leaves the choice of means and their evaluation to the
Security Council, which enjoys wide discretionary powers in this regard; and
it could not have been otherwise, as such a choice involves political evaluation
of highly complex and dynamic situations’.
26
An ICTR Trial Chamber, in Kanyabashi, reached essentially the same 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 conflict. It was argued that
issues of international peace and security engaging the Security Council
simply did not arise in such situations. The Trial Chamber said that while it
deferred to the Security Council’s assessment on this, it took
judicial notice of the fact that the conflict in Rwanda created a massive
wave of refugees, many of whom were armed, into the neighbouring
countries which by itself entailed a considerable risk of serious 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 conflict in Rwanda might eventually spread to some
or all of these neighbouring regions.
28
The ruling was never appealed.
29
24
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 30.
25
Ibid., paras. 35–36.
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.
52 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
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 Council’s establishment of the Tribunal by a resolution
under Chapter VII ‘with the participation of the Government of Rwanda’ did
not violate the sovereignty of Rwanda.
32
The issue has returned from time to time, but the jurisprudence is unwa-
vering.
33
Further confirmation of this authority within the Security Council
can now be found in the Rome Statute of the International Criminal Court.
Obviously it does not purport to authorise the creation of a new tribunal, but
it does recognise the power of the Security Council to refer cases to the Court
and, moreover, to block prosecutions under certain circumstances, all pur-
suant to its powers under Chapter VII. The Council’s authority was never
questioned during the drafting of the Rome Statute, in which most States
participated, something that confirms the interpretation by which criminal
prosecution belongs within the scope of Chapter VII. It seems now to be
beyond any doubt that the Security Council is empowered to establish an
international criminal tribunal. The obstacles to the creation of future 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
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 56.
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.
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 53
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 ratified
the treaty. When this was challenged, the Nuremberg judges said that the four
powers ‘have done together what any one of them might have done singly’. But
the Nuremberg tribunal hinged the justification for its existence on the status
of the four powers as occupiers of Germany: ‘The making of the Charter was
the exercise of the sovereign legislative power by the countries to which the
German Reich unconditionally surrendered; and the undoubted right of these
countries to legislate for the occupied territories has been recognised by the
civilised world.’
37
In a sense, the Special Court for Sierra Leone relies on the same logic. Sierra
Leone exercises sovereignty over its own territory, and can create tribunals for
the administration of justice in the same way the powers that occupied
Germany could do in 1945. The Nuremberg judgment provides authority
for it to delegate this power to an international tribunal, in whose creation
it participates. The same could also be said of the Statute of the International
Criminal Court, by which approximately 100 States have in eVect agreed to
delegate their own criminal law jurisdiction, subject to certain conditions, to
34
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915, para. 9.
35
Ibid.
36
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 41.
37
France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, at p. 216.
54 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
an international tribunal. But the SCSL Appeals Chamber has resisted the idea
that the Court constitutes a delegation of the authority of the Government of
Sierra Leone, as this risks diminishing its claim to genuine international
stature. According to the Appeals Chamber, ‘the establishment of the Special
Court did not involve a transfer of jurisdiction of sovereignty by Sierra Leone’.
It said that ‘the judicial power exercised by the Special Court is not that of
Sierra Leone, but that of the Special Court itself reflecting the interests of the
international community’.
38
While conceding that its creation could not be equated with that of the
ICTY and ICTR, pursuant to a Security Council decision, the Special Court
has nevertheless claimed a somewhat more indirect form of Security Council
lineage:
Although the Special Court was established by treaty, unlike the 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 specific powers
of the Security Council in articles 39 and 41. These powers are wide
enough to empower the Security Council to initiate, as it did by 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-
firmed 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
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 21 May 2004, para. 37.
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.
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 55
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 final 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 finds little support in academic literature, and is certainly
less interesting than the question of whether an international criminal tribunal
created by treaty can exercise a jurisdiction that cannot be exercised by the
national courts of the States that have created it. Specifically, the problem
43
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.
56 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
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 confirmed by specific provisions of the statutes of the two
tribunals.
48
But would this also enable a treaty-based court to prosecute the
head of a State that is not party to the treaty? This is what the International
Court of Justice seems to have said, although the operative paragraph also
notes that such prosecutions may be taken by international courts like the ICC
‘where they have jurisdiction’. The question is as yet unresolved, and there are
strong arguments on both sides.
A somewhat narrower but related issue arose in one of the initial challenges
before the Special Court for Sierra Leone. Defence counsel contested the
establishment of the Court in an attempt to limit its jurisdiction. In eVect,
it was suggested that because the Court results from an agreement between
Sierra Leone and the United Nations, the Court can only exercise a 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 fulfil an international mandate and is part of the machinery of
international justice’.
49
Defence lawyers also argued that the establishment of the Court violated
the Constitution of Sierra Leone, and that the only way to create the 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
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 30.
50
Kallon et al. (SCSL-04-14, 15 and 16-AR72(E)), Decision on Constitutionality and Lack
of Jurisdiction, 13 March 2004, para. 49. Also, Special Court Agreement, 2002, Ratifica-
tion Act 2002, Supplement to the Sierra Leone Gazette vol. CXXX, No. II, dated 7 March
2002, s. 11(2).
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 57
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 specific request from the tribunals, although it has
periodically issued resolutions of a general nature calling upon States to
51
Blas ˇkic ´ (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
ICTY Statute, art. 9(2); ICTR Statute, art. 8(2).
53
Kallon et al. (SCSL-04-14, 15 and 16-AR72(E)), Decision on Constitutionality and Lack
of Jurisdiction, 13 March 2004, para. 69. See: ‘Report of the Secretary-General on the
Establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/915, para. 10. ‘The
Special Court has concurrent jurisdiction with and primacy over Sierra Leonean courts.
Consequently, it has the power to request at any stage of the proceedings that any
national Sierra Leonean court defer to its jurisdiction (article 8, para. 2 of the Statute).
The primacy of the Special Court, however, is limited to the national courts of Sierra
Leone and does not extend to the courts of third States. Lacking the power to assert its
primacy over national courts in third States in connection with the crimes committed in
Sierra Leone, it also lacks the power to request the surrender of an accused from any
third State and to induce the compliance of its authorities with any such request. In
examining measures to enhance the deterrent powers of the Special Court, the Security
Council may wish to consider endowing it with Chapter VII powers for the specific
purpose of requesting the surrender of an accused from outside the jurisdiction of the
Court.’
58 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
comply with orders from the tribunals. On several occasions States, and their
national courts, have complied with orders from the tribunals in the exercise
of their primacy or their so-called Chapter VII powers. But where a State
defies the tribunals, they are powerless, absent subsequent Security Council
action.
As for the Special Court, the counterweight to its alleged lack of Chapter
VII power is the prestige that comes from its association with the United
Nations, the fact that it was established pursuant to a Security Council
resolution, and the active participation of major international and regional
powers, including the United States, the United Kingdom and Nigeria, in its
management committee. Like the two ad hoc tribunals, there is nothing
preventing the Special Court from appealing to the Security Council to assist
it, nor does anything stand in the way of the Council complying with such a
request, aside from the omnipresent political considerations. For this reason,
the concrete position of the Special Court does not necessarily seem to be very
diVerent from that of the ICTY and ICTR. The Special Court has urged the
Security Council to grant it Chapter VII powers, to no avail.
The alleged limits of the powers of the SCSL were highlighted in June 2003
when it attempted to arrest Charles Taylor, who was then the president of
Liberia. When Taylor travelled to Ghana to attend a peace conference, the
SCSL Prosecutor called upon the Government of Ghana to arrest him, in
accordance with a secret indictment issued three months earlier. Ghana did
not abide by the request, and allowed Taylor to return to Liberia. In August
2003, Taylor relinquished his power, in exchange for a grant of asylum from
the government of Nigeria. There have been repeated calls from the SCSL for
Nigeria to transfer Taylor to Freetown so that he can stand trial.
The failures of the SCSL to obtain custody of Taylor do not serve as a
convincing demonstration of the institutional weaknesses that flow from a
lack of Chapter VII powers. Both Ghana and Nigeria can invoke serious legal
arguments for refusing to comply with the request of the SCSL, and these
would be valid even if the Court were endowed with Chapter VII powers. In
the case of Ghana, its refusal to arrest Taylor in June 2003 is surely supported
by international legal principles of immunity. It is one thing to declare, as did
the Special Court in a preliminary ruling, that Taylor cannot invoke immunity
in the proceedings, and quite another to challenge Taylor’s immunity from
arrest and apprehension as a sitting head of State, especially one attending an
international peace conference. It seems improbable that the Security Council
would give its imprimatur to the proposal by an international prosecutor that
a sitting head of State be arrested while attending such a meeting. As for
Nigeria, it can invoke the right of sovereign States to grant asylum. Here, too,
there is no precedent for the Security Council intervening in such decisions.
Therefore, the alleged weaknesses of the SCSL seem to dwell in the exorbitant
nature of its requests, and the diYculties they present in terms of principles of
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 59
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 significant
participation. The Security Council can also, presumably, by resolution,
intervene to influence the work of the SCSL, just as it has intervened to steer
the work of the ICTY and ICTR. The Appeals Chamber also noted that the
Agreement between the United Nations and Sierra Leone constitutes ‘an
agreement between all members of the United Nations and Sierra Leone’,
making it ‘an expression of the will of the international community’.
56
Retroactivity
At the time of their establishment, all three ad hoc tribunals were given
jurisdiction over crimes committed in the past, although they were also
54
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 37.
55
Ibid., para. 38.
56
Ibid.
60 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
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 conflict did not adhere to a specific treaty’.
62
The Security Council was apparently not as squeamish about nullum
crimen when it adopted the ICTR Statute, eighteen months later. According
to the Secretary-General’s report, issued subsequent to the adoption of the
ICTR Statute:
[T]he Security Council has elected to take a more expansive approach to
the choice of the applicable law than the one underlying the Statute of the
Yugoslav Tribunal, and included within the subject-matter jurisdiction of
the Rwanda Tribunal international instruments regardless of whether they
were considered part of customary international law or whether they have
customarily entailed the individual criminal responsibility of the 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 first time
criminalizes common article 3 of the four Geneva Conventions.
63
57
This is discussed below at pp. 132–138.
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
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
tion 808 (1993)’, UN Doc. S/25704 (1993), para. 34.
62
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 143.
63
UN Doc. S/1995/134, paras. 11–12.
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 61
Slightly more than a decade later, a United Nations Commission of Inquiry
referred to the Secretary-General’s remarks at the time the ICTR Statute was
being adopted, pointing out that no member of the Security Council objected
to the ‘expansive approach’ that he had taken. This ‘demonstrat[ed] consensus
on the need to make headway in the legal regulation of internal conflict and to
criminalize deviations from the applicable law’. The Commission suggested
that the recognition by the Security Council that violations of common article
3 and Additional Protocol II were punishable was in itself suYcient to push
these two categories into the realm of customary international law.
64
Concerns about retroactive punishment have aZicted international 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 defined aggressive war, that no penalty had been fixed
for its commission, and no court had been created to try and punish
oVenders.’
66
It seems implicit in the Nuremberg judgment that the Nazi defendants, and
perhaps the judges too, believed it proper that the legitimacy and legality of
the tribunal’s statute be contested before the court. The retroactivity argument
was rejected, but not because the court was prepared to assert that there was
no doubt that crimes against peace and crimes against humanity had been
recognised at law prior to the Second World War. Rather,
64
‘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
France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, at p. 217.
62 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
[i]n the first place, it is to be observed that the maxim nullum crimen sine
lege is not a limitation of sovereignty, but is in general a principle of
justice. To assert that it is unjust to punish those who in defiance of
treaties and assurances have attacked neighbouring states without warning
is obviously untrue, for in such circumstances the attacker must know that
he is doing wrong, and so far from it being unjust to punish him, it would
be unjust if his wrong were allowed to go unpunished.
67
Although formally professing rigid adherence to the nullum crimen 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 specific 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. 35–36; CR v. United Kingdom, Series
A, No. 335-B, paras. 33–34; Streletz, Kessler & Krenz v. Germany, [2001] ECHR 230, 22
March 2001, para. 49.
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
Hadzˇihasanovic ´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging
Jurisdiction with respect to Command Responsibility, 16 July 2003, para. 34.
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 63
the approach taken by common law judges in States where there is no written
constitution, like the United Kingdom.
71
In the case of the ICTY Statute, the four subject-matter provisions did not
in and of themselves pose any great problem with retroactivity. They were all
drawn from instruments that had been adopted in the 1940s, and that were
well accepted as statements of customary international law, as a result of
widespread ratification of the treaties from which they were drawn, 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 definition of crimes against
humanity.
But even where the text itself cannot easily be challenged, defendants have
argued that the tribunals should not rely upon interpretations that are incon-
sistent with customary international law.
73
In Krstic ´, an ICTY Trial Chamber
took note of evolving interpretations of the definition of genocide, but
declined to follow them because ‘despite recent developments, customary
international law limits the definition of genocide to those acts seeking the
physical or biological destruction of all or part of the group’.
74
Similarly, in
interpreting the scope of the term ‘rape’, which hitherto lacked any definition
in international criminal law, the tribunals have endeavoured to respect the
rule against retroactivity.
75
Nevertheless, as the ICTY Appeals Chamber has
held, the nullum crimen principle ‘does not prevent a court, either at the
national or international level, from determining an issue through a process of
interpretation and clarification as to the elements of a particular crime; nor
does it prevent a court from relying on previous decisions which reflect an
interpretation as to the meaning to be ascribed to particular ingredients of a
71
Gagnon and Vallie`res v. The Queen, [1971] CA Que´bec 454.
72
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 90.
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; confirmed 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
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 184.
64 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
crime’.
76
The case law of the European Court of Human Rights allows for
the ‘gradual clarification’ of the rules of criminal liability through judicial
interpretation.
77
Defendants have been fairly consistently unsuccessful in their challenges on
the basis of the nullum crimen maxim. The ICTY Appeals Chamber dismissed
an argument that grave breaches of the Geneva Conventions, set out in article
2 of the Statute, did not reflect rules of customary law, noting the near
universal participation of States in the treaty regime.
78
The ICTY has also
held that reference to common article 3 of the four Geneva Conventions of
1949 within the context of the oVence of violations of the laws or customs of
war is not retroactive punishment, although common article 3 is not con-
templated by the criminal justice provisions of the Conventions and is not
referred to in the ICTY Statute.
79
The ICTR has regularly confirmed that
serious violations of common article 3 of the four Geneva Conventions of
1949, and of Additional Protocol II, which are codified in article 4 of the ICTR
Statute (and in article 3 of the SCSL Statute), were applicable in Rwanda in
1994 as a matter of customary law.
80
The SCSL Appeals Chamber has held,
with one dissenting voice, that conscripting or enlisting children under the age
of fifteen years into armed forces or groups or using them to participate
actively in hostilities was a crime at customary international law as early as
30 November 1996, when the temporal jurisdiction of the Court begins.
81
The nullum crimen argument has been raised not only with respect to the
definitions of the crimes themselves, but also in the context of forms of
participation, such as aiding and abetting, and superior responsibility.
82
When
the ICTY Appeals Chamber interpreted article 7(1) to include ‘common
purpose’ forms of complicity, usually labelled ‘joint criminal enterprise’,
which were not explicitly included in the Statute, it took pains to explain that
76
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 127.
77
Hadzˇihasanovic ´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction,
12 November 2002, para. 58, citing: SW v. United Kingdom, Series A, No. 335-B, paras.
35–36. There is also a companion case: CR v. United Kingdom, Series A, No. 335-B,
paras. 33–34.
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 Chamber’s 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.
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 65
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 conflict, 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 conflict automatically apply to an internal armed conflict’,
85
but confirmed the conclusions of the Trial Chamber.
If use of nullum crimen as a presumption for purposes of interpreting the
statutes seems logical and uncontroversial, it is not nearly so straightforward
that the judges may in eVect strike down provisions of the statutes that they
deem to be retroactive, acting in eVect as a kind of constitutional court. The
statutes do not give them this power, at least expressly. When the ICTR was
being established, the Secretary-General believed that some of the crimes in
the Statute went beyond existing customary international law.
86
Surely he
would not have done this if he could have anticipated that the Tribunal would
strike down such provisions. Yet judges have regularly entertained the 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. 194–220.
84
Hadzˇihasanovic ´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12
November 2002.
85
Hadzˇihasanovic ´ et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging
Jurisdiction with Respect to Command Responsibility, 16 July 2003, para. 12.
86
‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolu-
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. 197–199.
88
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 559.
89
Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May
2004, para. 47.
66 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
aYrm, with reference to a textbook of Professor Antonio Cassese, that ‘the
principle of non-retroactivity of criminal rules is now solidly embodied in
international law. It follows that courts may only apply substantive criminal
rules that existed at the time of commission of the alleged crime.’
90
While
disagreeing with Judge Robertson on the merits of the issue, his colleagues on
the SCSL Appeals Chamber implicitly agreed that they were empowered to, in
eVect, disregard provisions of the Statute that they felt to be contrary to the
nullum crimen maxim: ‘It is the duty of this Chamber to ensure that the
principle of non-retroactivity is not breached. As essential elements of all legal
systems, the fundamental principle nullum crimen sine lege and the ancient
principle nulla poena sine lege need to be considered.’
91
The ICTY Appeals Chamber, in Tadic ´, expressed what is surely the better
view, namely, that ‘it is open to the Security Council – subject to respect for
peremptory norms of international law (jus cogens) – to adopt definitions of
crimes in the Statute which deviate from customary international law’.
92
Indeed, the approach of the SCSL Appeals Chamber seems to be at odds
with its statement in another case: ‘The Special Court cannot ignore what-
ever the Statute directs or permits or empowers it to do unless such provi-
sions are void as being in conflict with a peremptory norm of general
international law.’
93
Objectives of the tribunals
Several diVerent rationales have been invoked as justification for the 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 define
crimes over which they have jurisdiction. States are entitled to punish crimes
to the extent that this does not encroach upon the sovereign authority of other
States.
94
Human rights norms address national justice systems principally
with respect to procedural issues. Aside from imposing obligations to punish
90
Ibid., para. 16, citing Antonio Cassese, International Criminal Law, Oxford: Oxford
University Press, 2003, p. 153.
91
Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of
Jurisdiction (Child Recruitment), 31 May 2004, para. 25. Also: Kallon et al. (SCSL-04-
15-AR72(E)), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004,
paras. 80–82.
92
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 296.
93
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 43.
94
SS Lotus (France v. Turkey), [1927] PCIJ Ser. A. (Judgments) No. 10 (Judgment No. 9)
(1929).
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 67
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 conflict;
to give expression to retribution. This accounts for important distinctions
between international criminal justice and national justice that, as a general
rule, is addressed to individual oVenders in peacetime and is targeted at social
stability in a more mundane sense.
All three tribunals are linked with the restoration and maintainance of peace.
The connection with this objective is of legal significance, as it justifies the
intervention of the Security Council in particular and the United Nations in
general. Nothing could be more central to the work of the United Nations,
whose Charter begins with the pledge to save succeeding generations from the
scourge of war. The restoration and maintenance of peace might be viewed as
the central objective of the tribunals, although in reality this is not how most
view the institutions. According to the first annual report of the ICTY,
it would be wrong to assume that the Tribunal is based on the old maxim
fiat justitia et pereat mundus (let justice be done, even if the world were to
perish). The Tribunal is, rather, based on the maxim propounded by Hegel
in 1821: fiat justitia ne pereat mundus (let justice be done lest the world
should perish). Indeed, the judicial process aims at averting the exacerba-
tion and aggravation of conflict and tension, thereby contributing, albeit
gradually, to a lasting peace.
97
Absent a determination that issues of international peace and security are
involved, it is questionable whether the Security Council has jurisdiction to
95
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. 109/1995/615/703–705),
Judgment, 20 January 1997.
97
First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 18.
68 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
act with respect to criminal justice issues. Resolution 808, for example, which
began the process of establishing the ICTY, expressed the conviction of the
Security Council that the proposed Tribunal would promote international
peace.
98
It has been argued that one of the consequences of the proceedings
before the tribunals has been to remove those most responsible for the conflict
from the proverbial battlefield.
99
This has probably been of only limited
importance in practice. In the case of Rwanda and Sierra Leone, the conflicts
were over for all practical purposes when the tribunals were established. As for
the ICTY, the conflict in Bosnia and Herzegovina that it was intended to
resolve raged on for two and a half years after its establishment. The war’s
worst massacre, at Srebrenica, took place a few days after an ICTY Trial
Chamber held a public hearing confirming its indictments against Bosnia
Serb leaders Radovan Karadzˇic´ and Ratko Mladic´. And although the Tribunal
was fully operational and quite eVective by 1999, it was manifestly incapable
of preventing armed conflict when the Kosovo war erupted that year.
Deterrence figures prominently among the objectives of the tribunals. An
ICTY Trial Chamber has explained that the Security Council also
intended to send the message to all persons that any violations of 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 conflict would recommit themselves to observing and adhering to
those obligations, thereby preventing the commission of further crimes.
100
The relevant resolutions do not, however, refer to deterrence. It does not seem
clear that the United Nations Security Council actually considered deterrence
of future violations to be a particularly important objective in creating the
ICTY.
‘Doing justice’ might also be viewed as the objective lying at the core of the
work of the tribunals. The Security Council Resolution calling for the 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).
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 69
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 conflict has an ethnic dimension. Thus, ‘by
holding individuals responsible for the crimes committed, it was hoped that
a particular ethnic or religious group (or even political organisation) would
not be held responsible for such crimes by members of other ethnic or
religious groups, and that the guilt of the few would not be shifted to the
innocent’.
106
But might it be argued that in focusing on a handful of leaders,
the much larger numbers of individuals who participated in or condoned
atrocities are not included within the reach of accountability mechanisms?
The Rwandan experience of transitional justice has pointed to the complicity
of broad sectors of the population, and it is now estimated that as many as 1
million Rwandans participated in genocidal acts.
107
Largely because of the
practical inability of international tribunals to deal with most of the perpe-
trators, parallel accountability mechanisms, such as truth commissions, are
frequently associated with post-conflict justice.
108
103
UN Doc. S/RES/1315 (2000).
104
Momir Nikolic ´ (IT-02-60/1-S), Sentencing Judgment, 2 December 2003, para. 59.
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
‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report
of the Secretary-General’, UN Doc. S/2004/616, para. 46 See also: William A. Schabas
70 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
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 first met the
Minister of Justice of the Federal Republic of Yugoslavia, the Minister
recounted the historic suVerings of the Serbs, including their terrible fate
during the Second World War at the hands of the Nazis and their local
collaborators.
He ended with a very emotional critique of the United Nations for setting
up the ICTY. He said why for us, why not for Pol Pot in Cambodia? He
said why for us, why not for Saddam Hussein in Iraq? And he said that in
other countries, specifically in Africa, millions of people had been killed or
forced into refugee status. He asked why the international community
should experiment on the former Yugoslavia? Of course, what could I say
to him, because he was correct? At that stage, the ICTY was a kind of act of
discrimination. All I could say was that if the ICTY was the first and the
last international criminal tribunal, he would have been absolutely justi-
fied in his criticism. But if the ICTY was to be the first of many such
tribunals, there would be no basis on which Yugoslavia could complain
merely for being the subject of the initial tribunal. Despite the establish-
ment of the Rwanda Tribunal, it remains politically dubious that, given
the veto power of the five permanent members of the Security Council, the
decision to set up an international criminal tribunal was, and always will
be, an uneven political decision. None of the permanent members would
countenance the establishment of an international criminal tribunal to
investigate the actions of their own people, nor would they sanction such a
tribunal to investigate their political allies. Justice and judicial systems
should not depend on these kinds of political decisions. If justice is to be
respected it must be even-handed, it must be unbiased, and potential war
criminals in countries around the world should know that they are subject
to the same international justice.
109
National reconciliation is frequently mentioned as an objective of 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).
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 71
Court for Sierra Leone made references to the importance of the national
reconciliation process, including confirmation of the importance of ‘bringing
justice and reconciliation to Sierra Leone and the region’.
111
Reconciliation is closely related to the role of the tribunals in the clarifica-
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 finding for history’s sake’.
113
According to Judge Wald,
Many historians as well as the relatives of victims maintain that only the
adjudicated findings of an impartial international body of jurists following
accepted rules of legal procedure will quell the doubts of future genera-
tions that the terrible things did in fact happen. To chronicle accurately for
history some of the world’s darkest deeds is the special responsibility of
the Tribunal. Many would say it explains and even justifies the extraor-
dinary length of the Tribunal’s judgments and what sometimes appears to
be the Tribunal’s near-obsession with minute factual detail.
114
Others have noted the importance of this historical role for international
justice in terms of responding to ‘denial’ or ‘revisionism’. According to Judge
McDonald, ‘[t]he judgments provide an incontrovertible record of how the
communities became so divided, how neighbours raped and killed 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.
72 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
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 reflected in voluminous case
law, the ad hoc tribunals have prepared the way for the International
Criminal Court. Concepts and provisions of the humanitarian law 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.
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 73
3
Sources of law
The United Nations International Criminal Tribunals sit astride an intriguing
ambiguity, in that they seem related to both national law and international law.
Their relationship with national law flows inexorably 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 conflicting prosecutions, and non bis
in idem, to govern situations where there is a possibility of multiple convictions.
In other words, in terms of their functions, the tribunals are in many respects
not very diVerent from national courts. Inevitably, where the applicable law
instruments are inadequate for the solution of legal problems, the international
criminal tribunals draw upon national law. Here there are issues as to whether
there is a preference for the national criminal law of the State that would
ordinarily have jurisdiction, or for some hybrid of diVerent systems of national
law. All three statutes make specific reference to the possible application of the
national criminal 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
Leone’s criminal procedural law,
2
as well as incorporating some oVences drawn
from the national law.
3
As institutions of international law, however, the tribunals partake in an
autonomous and distinct body of legal norms. The international dimension
was highlighted by the ICTY in its first annual report to the United Nations,
where it cited the Dutch judge on the International Military Tribunal for the
Far East (‘Tokyo Tribunal’), B. V. A. Ro¨ling: ‘For the very reason that war
crimes are violations of the laws of war, that is of international law, an
international judge should try the international oVences. He is the best
1
ICTY Statute, art. 24(1); ICTR Statute, art. 23(1).
2
SCSL Statute, art. 14(2).
3
Ibid., arts. 1(1), 5.
74
qualified.’
4
In his dissenting opinion in Erdemovic ´, Judge Cassese wrote:
‘This International Tribunal is called upon to apply international law, in
particular our Statute and principles and rules of international 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 qualified 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. Ro¨ling, ‘The Law of War and the National Jurisdiction since 1945’, in Hague
Academy of International Law, Collected Courses, 1960-II, Leyden: A. W. SijthoV, 1961,
p. 354.
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 (Prosecutor’s 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 first two
take precedence. All of these sources figure in the case law of the tribunals.
The principal legal instrument of each of the three ad hoc tribunals is its
statute. Pursuant to an authorisation within the statutes, the judges of each
tribunal have also adopted their own Rules of Procedure and Evidence (RPE).
9
In comparison with the International Court of Justice, however, there is no
distinct provision defining the ‘applicable law’ to be applied by the court.
Similarly, article 21 of the Rome Statute of the International Criminal Court
not only identifies the relevant sources of law; it also sets out a hierarchy
among them.
10
It does not appear obvious that the judges of the ad hoc
tribunals are even entitled to go beyond their statutes for sources of applicable
law, given the silence of the statutes in this respect. By comparison, 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 filled on the basis of doctrines of implied or inherent
powers. But the judges of the ad hoc tribunals have gone much further, making
their courts living laboratories of public international law and comparative
criminal law.
Some of this search for legal rules in extrinsic sources seems justifiable in
accordance with the statutes themselves. Probably the clearest example of this
is the reference, in article 3 of the ICTY Statute, to ‘violations of the laws and
customs of war’. The introductory paragraph or chapeau of article 3 says that
‘[s]uch violations shall include, but not be limited to . . .’. In applying this
provision, the ICTY judges must necessarily consider applicable legal rules
drawn from the law of armed conflict, both customary and conventional,
using international and national sources. All three statutes also make direct
reference to instruments of Geneva law: in the case of article 2 of the ICTY
enumerated in article 38(1), for example, unilateral acts. See also: Kupres ˇkic ´ (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.
76 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
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 influence of
human rights doctrines on the law of armed conflict’.
19
Apparently, the term
‘international humanitarian law’ was first used in 1953, by the International
Committee of the Red Cross.
20
But to the extent that the subject-matter
jurisdiction of the tribunals includes crimes that can be committed in time of
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 Conflicts, (1979) 1125 UNTS 609.
15
ICTY Statute, art. 5(h); ICTR Statute, art. 3(h); SCSL Statute, art. 2(h).
16
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.
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
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 87.
20
Dietrich Schindler, ‘Significance of the Geneva Conventions for the Contemporary
World’, (1999) 836 International Review of the Red Cross 715, at fn. 4.
S O U R C E S O F L AW 77
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 identified themselves as institutions of both international
humanitarian law and ‘international criminal law’.
21
Occasionally decisions
have referred to the two terms as if they were synonymous.
22
Sometimes, there
are references to criminal law doctrines such as aiding and abetting or
complicity, which are well known in national criminal law, but as if they have
an autonomous and distinct status within international criminal law.
23
The
Appeals Chamber has described the ICTY Statute as a codification of certain
principles of international criminal law.
24
In Furundzˇija, the Trial Chamber
spoke of ‘general principles of international criminal law’, adding that if
they were of no avail, reference could be made ‘to the general principles of
international law’.
25
The statutes
The statutes of the ICTY and ICTR are enactments of the Security Council,
annexed to resolutions adopted pursuant to Chapter VII of the Charter of the
United Nations.
26
The two institutions are deemed to be ‘subsidiary organs’ of
the Security Council, in accordance with article 29 of the Charter of the
United Nations, which authorises the Council to ‘establish such subsidiary
organs as it deems necessary for the performance of its functions’. Under
article 25 of the Charter, all Member States of the United Nations agree ‘to
accept and carry out’ decisions of the Council. Consequently, the statutes
declare that ‘States shall cooperate with the International Tribunal in the
investigation and prosecution of persons accused of committing serious
violations of international humanitarian law’, and moreover that ‘States shall
21
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 ˇkic ´ (IT-95-16-T), Judgment, 14 January
2000, para. 514; Kvoc ˇka 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; Furundzˇija (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
March 2002, para. 476.
24
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 186.
25
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 182.
26
UN Doc. S/RES/827 (1993), annex; UN Doc. S/RES/955 (1994), annex.
78 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
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 State’s specific consent to be bound by the Statute
or the Agreement. For this reason, the SCSL Statute has no provision on State
cooperation with the Court that is analogous to those in the statutes of the
other two ad hoc tribunals.
28
The ICTY and ICTR statutes have been referred to as sui generis 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 codification of customary legal norms.
34
The Vienna Convention provisions
establish a general rule, by which a treaty is to be interpreted ‘in good faith in
27
ICTY Statute, art. 29(1); ICTR Statute, art. 28(1).
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 Prosecutor’s 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, ‘What’s in a Name? Labels and the Statute of the
International Criminal Tribunal for the Former Yugoslavia’, (2005) 18 Leiden Journal of
International Law 77.
32
Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999,
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
Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10
August 1995, para. 18.
34
Gabcikovo–Nagymaros 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., Man’s Inhumanity to Man, The Hague:
Kluwer Law International, 2003, pp. 847–888.
S O U R C E S O F L AW 79
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
first duty of a tribunal which is called upon to interpret and apply the
provisions of a treaty is to endeavour to give eVect to them in their natural
and ordinary meaning in the context in which they occur.’
40
In a dissenting opinion, Judge Shahabuddeen said the Tribunal was entitled
to refer to general principles of interpretation pursuant to the Vienna 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 benefit the accused). Yet the ad hoc tribunals have made only rare and
essentially perfunctory references to what is almost surely a general principle
35
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 Prosecutor’s Appeal
from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste
Bagosora and 28 Others, 8 June 1998, paras. 28–29; Delalic ´ et al. (IT-96-21-T), Judg-
ment, 16 November 1998, para. 1161.
38
Kanyabashi (ICTR-96-15-A), Joint Separate and Concurring Opinion of Judge Wang
and Judge Nieto-Navia, 3 June 1999, para. 11.
39
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, paras. 71–142.
40
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 282.
41
Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June
1999, pp. 21–22. Also: Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge
Shahabuddeen, 3 June 1999.
80 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
of law.
42
It is not without interest that the drafters of the Rome Statute of the
International Criminal Court expressly departed from the Vienna Convention
rules, specifying that ‘[t]he definition of a crime shall be strictly construed and
shall not be extended by analogy. In case of ambiguity, the definition shall be
interpreted in favour of the person being investigated, prosecuted or 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
Erdemovic ´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
1997, para. 49; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 319; Tadic ´
(IT-94-1-A), Decision on Appellant’s Motion for the Extension of the Time-Limit and
Admission of Additional Evidence, 15 October 1998, para. 73; Delalic ´ et al. (IT-96-21-T),
Judgment, 16 November 1998, paras. 408–413; Kayishema et al. (ICTR-95-1-T), 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 ˇkic ´ (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
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 83; Tadic ´ (94-1-A), Judgment, 15 July 1999, para.
284; Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 571; .
46
Blas ˇkic ´ (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 ˇkic ´ (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 ˇkic ´ (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 ˇkic ´, 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.
S O U R C E S O F L AW 81
materials,
51
the reports of the Secretary-General,
52
and submissions by
various Member States during the drafting process.
53
The Secretary-Gener-
al’s report to the Council at the time the ICTY was being created has been
described as ‘an explanatory document to the proposed Statute’ that was
subsequently ‘endorsed’ by the Security Council, and as ‘an authoritative
interpretation of the Statute’.
54
No similar document exists for the ICTR,
although the Secretary-General issued a report in early 1995 that is not
irrelevant to issues of interpretation.
55
The SCSL has probably the most
detailed preparatory materials, in the form of a report by the Secretary-
General followed by a series of exchanges between Secretariat and Security
Council as the text was being fine-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
Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May
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 ˇkic ´ (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. 3–5.
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. 295–296 (and see paras. 293–297
generally).
55
‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolu-
tion 955 (1994)’, UN Doc. S/1995/134.
56
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915; ‘Letter dated 22 December 2000 from the President of the
Security Council addressed to the Secretary-General’, UN Doc. S/2000/1234; ‘Letter
dated 12 January 2001 from the Secretary-General addressed to the President of the
Security Council’, UN Doc. S/2001/40; ‘Letter dated 31 January 2001 from the President
of the Security Council addressed to the Secretary-General’, UN Doc. S/2001/95; ‘Letter
dated 12 July 2001 from the President of the Security Council addressed to the Secretary-
General’, UN Doc. S/2001/693.
82 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
Similar ‘preparatory’ materials that the tribunals have found helpful
include the report of the Commission of Experts, created pursuant to a
mandate from the Security Council in 1992 and whose initial activities
influenced the establishment of the ICTY.
57
They have also made abundant
reference to work that went on within the International Law Commission, in
parallel to their creation, and that was certainly considered by the drafters of
their statutes, specifically the concluding years of study of the Draft Code of
Crimes Against the Peace and Security of Mankind and, to a lesser extent, the
draft statute of the international criminal court.
58
For the purposes of interpreting the statutes, perhaps the most significant
norm has been the principle of legality, often identified by one of its Latin
synonyms, nullum crimen sine lege. All three tribunals exercise jurisdiction
over crimes committed prior to their establishment, as well as prospectively.
When the ICTY Statute was being drafted, the Secretary-General and the
Security Council sought to avoid potential challenges in this respect by
confining the Tribunal’s subject-matter jurisdiction to oVences that are
‘beyond any doubt part of customary law so that the problem of adherence
of some but not all States to specific conventions does not arise’.
59
This
statement, which appears in the Secretary-General’s Report to the Security
Council, has been used to justify what amounts to an interpretative
presumption, described by the Appeals Chamber as :
the principle whereby, in case of doubt and whenever the contrary is not
apparent from the text of a statutory or treaty provision, such a provision
must be interpreted in light of, and in conformity with, customary 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 confines
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 ˇihasanovic ´ 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
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
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).
S O U R C E S O F L AW 83
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 Ro¨ling took a similar view with respect to crimes against
peace.
64
But nothing in the statutes suggests that the judges have any such
power. Refusing to apply a provision in the Statute amounts to an exercise of
judicial review over the Security Council, and it is highly doubtful it was ever
the intent of the Council to give the tribunals such authority.
Rules of procedure and evidence
The statutes authorise the judges to make their own rules of procedure and
evidence.
65
‘The judges of the International Tribunal shall adopt rules of
61
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
Norman (SCSL-04-14-AR72(E)), Dissenting Opinion of Justice Robertson, 31 May
2004, para. 47.
64
B. V. A. Ro¨ling and C. F. Ru¨ter, 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.
84 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
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 Court’s
establishment, making them applicable mutatis mutandis to the conduct of
proceedings. However, it also empowers the judges to amend these rules, or to
adopt additional rules, adding that ‘they may be guided, as appropriate, by the
Criminal Procedure Act, 1965, of Sierra Leone’.
67
The first version of the ICTY Rules was adopted in February 1994 at the
second plenary of the judges. The judges had little precedent to guide them.
The procedural law of the post-Second World War tribunals was exceedingly
laconic, and of little practical importance.
68
The ICTY RPE were based largely
on a proposal from the American Bar Association, reinforced by the 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 flavour to them, and
this was only amplified in the practice of the ICTY by the presence of an
important contingent of lawyers seconded by the United States government.
Judge McDonald later told an American journalist: ‘I guess I was playing the
typical American role – we know it all, we control it all.’
70
The ICTR RPE were initially copied from the ICTY RPE, but have them-
selves evolved and now diVer in significant respects.
71
Though based on the
ICTR Rules, the SCSL Rules have also taken on a life of their own, inspired by
a desire to streamline procedures in keeping with the ‘lean’ resources of the
Tribunal,
72
as well as taking into account other procedural models, such as the
RPE of the International Criminal Court.
73
Authorising judges to make their own rules of procedure and evidence is
not at all exceptional in the practice of international tribunals. The judges of
66
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. 52–97 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 Prosecutor’s Motion to
Withdraw the Indictment, 18 March 1999, an ICTR Trial Chamber noted the diVerences
in Rule 11 with respect to the two tribunals.
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.
S O U R C E S O F L AW 85
the International Military Tribunal at Nuremberg made rules of procedure
and evidence, but these were very summary in contrast with the elaborate and
sophisticated body of legal norms generated by the ad hoc tribunals.
74
The
Statute of the International Criminal Court reserves the rule-making power to
the Assembly of States Parties, and only allows the judges to make provisional
rules in urgent cases where the existing RPE do not deal with a specific
problem.
75
The first President of the ICTY, Antonio Cassese, told the United
Nations General Assembly in 1996 that it was ‘essential, in the interests of
justice, to amend the Rules in light of new problems . . . or unanticipated
situations’.
76
The rules of the ad hoc tribunals specify that they are to be
adopted and amended by the plenary of judges.
77
The rule-making power of the judges does not sit well with everyone, and
potentially confuses the legislative and judicial functions. Where there is no rule
to govern a situation, judges will sometimes innovate, rather than demand that
the plenary adopt a provision to govern the situation.
78
They also criticise and
even depart from specific Rules, although no subsequent amendment seems to
reflect this development.
79
Prosecutor Louise Arbour expressed her ‘concern’
about the rule-making power of the judges, noting a lack of consultation in
their adoption, especially as concerns the defence bar.
80
Some critics have
argued that allowing judges to make and to amend the Rules violates the
maxim nullum crimen sine lege, and the principle of legality.
81
But this is
not a very strong critique, because the judges cannot legislate new crimes.
According to the Appeals Chamber, the rule-making power given to judges
74
Diane Marie Amann, ‘Harmonic Convergence? Constitutional Criminal Procedure in an
International Context’, (2000) 75 Indiana Law Journal 809, at pp. 818–820.
75
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 51(3).
76
Cited in Virginia Morris and Michael P. Scharf, An Insider’s Guide to the International
Criminal for the Former Yugoslavia, vol. II, Irvington-on-Hudson, NY: Transnational
Publishers, 1995, p. 423.
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 fixed 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.
86 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
‘does not permit rules to be adopted which constitute new oVences, but it
does permit the judges to adopt rules of procedure and evidence for the
conduct of matters falling within the inherent jurisdiction of the Tribunal
as well as matters within its statutory jurisdiction’.
82
In her dissent in Jelisic ´,
Judge Wald later said: ‘Needless to say, the Rules cannot confer power on
the Chambers greater than that provided by the Statute, unless it is power
recognised universally as essential to the functioning of a court of law.’
83
The Appeals Chamber has also ruled that the Statute gives the judges no
power to adopt rules which constitute new defences.
84
In other words, the
judges can only apply defences, excuses and justifications that already exist
in international law; they are not, in this sense, legislators who can devise
‘new’ defences without some pre-existing authority. Defences need not be
spelled out within the statutes, however, to the extent that they are 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
conflict between the two instruments, the Statute must clearly prevail over the
RPE.
86
The relationship of the RPE to the Statute has been explained by an
ICTY Trial Chamber:
The Rules and all other applicable instruments, including the Directive
[on Assignment of Defence Counsel] and the ICTY Code [of Conduct for
Defence Counsel], are to be read and applied subject to the Statute. That is
the natural relationship between an enabling instrument and any other
instrument, including Rules, made thereunder – a point not specifically
covered in the Statute of the ICTY, but expressly set out in the ICC
Statute.
87
There have been challenges to the legality of specific rules, but no cases of any
conflict appear to have been found.
88
The subordinate position of the RPE, as
82
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
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 51(5).
86
Tadic ´ (IT-94-1-A), Decision on Appellant’s Motion for the Extension of the Time-Limit
and Admission of Additional Evidence, 15 October 1998, para. 36; Tadic ´ (IT -94-1-A-
AR77), Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan
Vujin, 27 February 2001; Brðanin (IT-99-36-PT), Decision on Motion to Dismiss
Indictment, 5 October 1999, para. 12.
87
Milos ˇevic ´ (IT-02-54-T), Decision on Assigned Counsel’s 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
S O U R C E S O F L AW 87
delegated legislation, is confirmed by decisions in which the judges hold that
Rules must be interpreted in conformity with the Statute.
89
The judges have taken a fairly liberal approach to interpretation of the RPE.
According to the Appeals Chamber, ‘[t]he purpose of the Rules is to promote
a fair and expeditious trial, and Trial Chambers must have the flexibility to
achieve this goal’.
90
Accordingly, ‘it is plain from the successive amendments
of the Rules that the Rules have been refined over the years through the
practice of the Chambers in applying them’, subject to the requirement that
any new practice ‘serves the mandate of the Tribunal and conforms to 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 fulfilling the mandate of the Tribunal’.
91
According to
one judgment,
The statutory instrument for the Tribunal, the Statute, delegates the power
of regulating matters to the Judges in plenary . . . [T]he Rules represent, as
it were, an interpretation of the provisions of the Statute. If there is no
outright conflict of terms between the two documents, the Judges are
presumed to have the liberty to amend and improve on the Rules in
consideration of any unusual problems which arise in practice but are
not covered by the existing Rules. While the Judges may have that liberty,
certain general principles of law, recognised by all major legal systems but
not explicitly provided for by the Statute, would always, we submit,
assume precedence over the need to incorporate in the Rules a new
practice that may appear to the Judges to be useful. This is the case with
the principle of recusal in the interests of fair trials, which though not
articulated in the Statute, finds expression in Rule 15.
92
the Suspect, 17 November 1998, p. 6; Simic ´ et al. (IT-95-9-PT), Decisions on Simo Zaric´’s
and Miroslav Tadic´’s Applications for Provisional Release, 4 April 2000; Brðanin et al. (IT-
99-36-T), Decision on ‘Motion to Declare Rule 90(H)(ii) Void to the Extent it is in
Violation of Article 21 of the Statute of the International Tribunal’ by the Accused
Brðanin and on ‘Rule 90(H)(ii) Submissions’ by the Accused Momir Talic´, 22 March
2002. See, however: Bagosora et al. (ICTR 98-37-A), Decision on the Admissibility of the
Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment
against The´oneste Bagosora and 28 Others, 8 June 1998, para. 39.
89
Tadic ´ (IT-94-1-A-AR77), Appeal Judgment on Allegations of Contempt Against Prior
Counsel, Milan Vujin, 27 February 2001; Milos ˇevic ´ (IT-99-37-PT, IT-01-50-PT and
IT-01-51-PT), Decision on Prosecutor’s Motion for Joinder, 13 December 2001.
90
Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s 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
Kanyabashi (ICTR-96-15-A), Joint Separate and Concurring Opinion of Judge Wang
and Judge Nieto-Navia, 3 June 1999, para. 20; Nsengiyumva (ICTR-96-12-A), Joint
Separate and Concurring Opinion of Judge Wang and Judge Nieto-Navia, 3 June 1999.
88 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
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 ˇkic ´, the ICTY Appeals Chamber endorsed the
pronouncement in Barayagwiza that Rule 120 was only ‘directory’.
94
It seems
preferable that they should be altered by all permanent judges of the court,
sitting in plenary, and not on an ad hoc basis by a single chamber, even when it
is the Appeals Chamber. Judges of the Appeals Chamber have no special status
when it comes to adoption and amendment of the Rules.
On occasion, faced with lacunae in the statutes and the RPE, judges have
devised a solution and then ordered that it be complied with in the future,
thereby, in eVect, legislating additional rules, but by judicial fiat. In one case,
after noting that there was no mandatory requirement in the Statute or the
RPE for the Prosecutor to give the defence an inventory of personal items
seized from an accused at the time of arrest, and after indicating that this
might well be implied by ‘the spirit of Rule 5, which requires the parties to
comply with general principles of fairness’, an ICTR Trial Chamber ‘Direct[ed]
the Prosecutor that, in future, under the spirit of rule 5 of the Rules [she]
should see to it that she prepares an inventory of properties seized during
investigation which shall be signed by the suspect’.
95
But the ICTR Appeals
Chamber has described as ‘unhelpful’ a suggestion by the Prosecutor that the
tribunals may recognise procedures that are not specifically prevented by the
RPE. ‘Clearly, the ICTR may apply what is not specifically prohibited by
the Rules only where this would be consistent with the object and purposes
of the Statute’, said the Appeals Chamber.
96
Other subordinate legislation
In addition to the Rules of Procedure and Evidence, there are other forms of
subordinate or delegated legislation within the applicable law of the tribunals.
93
Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Recon-
sideration), 31 March 2000, para. 65.
94
Kupres ˇkic ´ 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 et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal
from the Decision of a Confirming Judge Dismissing an Indictment against The´oneste
Bagosora and Twenty-eight Others, 8 June 1998, paras. 44–45. For an even more extreme
view, holding that what is not allowed must be prohibited, see: Aleksovski (IT-95-14/
1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 February 1999, para. 22.
S O U R C E S O F L AW 89
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. 98–116. For the ICTR: ‘Rules Covering the Detention of
Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the
Authority of the Tribunal’. For the SCSL: ‘Rules Governing the Detention of Persons
Awaiting Trial or Appeal before the Special Court for Sierra Leone or Otherwise
Detained on the Authority of the Special Court for Sierra Leone’, adopted 7 March 2003.
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
First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex, para. 134.
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.
90 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
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 confirmed
in a holding of the ICTY Appeals Chamber that although the Directive on the
Assignment of Defence Counsel did not provide for recourse to the Appeals
Chamber against a decision not to assign counsel, this was required by article 20
(4) of the ICTR Statute.
106
Treaty law
Treaties are one of the three primary sources of public international law set
out authoritatively in article 38(1)(a) of the Statute of the International
Court of Justice. Many treaties have been referred to in the jurisprudence of
the international tribunals. In some cases this is because of explicit or
implicit reference to the treaties themselves within the statutes of the 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
Seventh Annual Report of the ICTY, UN Doc. A/55/273-S/2000/777, annex, para. 308.
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 TRC’s 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. 2–3.
107
On treaties as evidence of customary international law, see below, at pp. 98–100.
S O U R C E S O F L AW 91
ICTY Appeals Chamber, the Tribunal is authorised to apply ‘any treaty
which: (i) was unquestionably binding on the parties at the time of the
alleged oVence; and (ii) was not in conflict with or derogating from 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
organisation’s principal organs. Interestingly, the ICTY has seemed quite alive
to the issue of applicable law in ruling on this point, noting that although it
has no specific authorisation to consider the law by which it was created, this
is ‘a necessary component in the exercise of the judicial function’ that is
‘incidental or inherent’ to its jurisdiction.
111
Chapter VII of the Charter is
the basis of the obligation of States to comply with the orders of the ICTYand
ICTR.
112
The Charter is also justification for the establishment of the SCSL.
The SCSL Appeals Chamber found the authority of the Security Council to
mandate the establishment of a tribunal in article 1(1) of the Charter of the
United Nations, namely, ‘eVective collective measures . . . for removal of
threats to the peace’.
113
In addition, there are references to other provisions of the Charter of the
United Nations in the jurisprudence of the tribunals. For example, in Fur-
undzˇija, a Trial Chamber referred to the Charter’s recognition that concern for
the achievement of equality for women was ‘one of the principles reflected in
108
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 143.
109
Ibid., paras. 7, 21–23; Tadic ´ (IT-94-1-T), Decision on the Prosecutor’s 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 ˇkic ´ (IT-95-14-T),
Judgment, 3 March 2000, para. 1; Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November
2001, para. 769; Milos ˇevic ´ (IT-02-54-PT), Decision on Preliminary Motions, 8 Novem-
ber 2001, paras. 5–7; Hadzˇihasanovic ´ et al. (IT-01-47-PT), Decision on Joint Challenge
to Jurisdiction, 12 November 2002, paras. 97, 101, 173.
110
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 19.
111
Ibid., para. 19.
112
Blas ˇkic ´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras. 13,
32, 33.
113
Fofana (SCSL-04-14-AR72(E)), Decision on Preliminary Motion on Lack of Jurisdiction
materiae : Illegal Delegation of Powers by the United Nations, 25 May 2004, para. 21.
92 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
the United Nations Charter’.
114
In the Blas ˇkic ´ subpoena decision, the ICTY
Appeals Chamber made reference to article 2(7) of the Charter, which is
usually invoked in the name of State sovereignty. The Appeals Chamber noted
that although article 2(7) ‘provides for a significant exception to the 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 conflict between a State’s obligations to NATO and
SFOR on the one hand, and their obligations under the Charter on the other,
their obligations under the latter prevail’.
116
All three statutes refer to the Geneva Conventions of 12 August 1949,
117
dealing with protection of the victims of armed conflict, including wounded
combatants, prisoners of war and, arguably the most important category,
civilians.
118
Article 2 of the ICTY Statute cites the grave breaches provisions
of the Conventions. In applying the concept of grave breaches, the ICTY has
been required to consult other provisions of the conventions, such as those
defining ‘protected persons’.
119
Article 4 of the ICTR Statute and article 3 of
the SCSL Statute cite common article 3 of the Conventions. The latter 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
Furundzˇija (IT-95-17/1-A), Judgment, 21 July 2000, para. 202.
115
Blas ˇkic ´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 64.
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
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 89; Delalic ´ et al. (IT-96-21-A), Judgment, 20 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. 68–171; Aleksovski (IT-95-14/1-A),
Judgment, 24 March 2000, paras. 147–152; Delalic ´ et al. (IT-96-21-A), Judgment, 20
February 2001, paras. 56–84.
120
Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of
Victims of Non-International Armed Conflicts, (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
S O U R C E S O F L AW 93
Other important treaties of international humanitarian law are also
referred to implicitly. Here, article 3 of the ICTY Statute is particularly
germane. It states that ‘[t]he International Tribunal shall have the power to
prosecute persons violating the laws or customs of war. Such violations shall
include, but not be limited to . . .’ A short list of examples drawn from early
treaty provisions is then set out. But from the outset, the Appeals Chamber
held that article 3 was an ‘umbrella’ provision encompassing all serious
violations of international humanitarian law entailing individual criminal
responsibility, as these are defined in either customary or conventional
law.
122
This has been a broad invitation to consult a range of treaty sources.
The Appeals Chamber, in Tadic ´, explained:
Before both the Trial Chamber and the Appeals Chamber, Defence and
Prosecution have argued the application of certain agreements entered
into by the conflicting parties. It is therefore fitting for this Chamber to
pronounce on this. It should be emphasised again that the only reason
behind the stated purpose of the drafters that the International Tribunal
should apply customary international law was to avoid violating the
principle of nullum crimen sine lege in the event that a party to the
conflict did not adhere to a specific treaty. (Report of the 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 conflict with or derogating from
peremptory norms of international law, as are most customary rules of
international humanitarian law. This analysis of the jurisdiction of the
International Tribunal is borne out by the statements made in the Security
Council at the time the Statute was adopted. As already mentioned above
(paras. 75 and 88), representatives of the United States, the United 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
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 94.
123
Ibid., para. 143.
124
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. 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. 23–24; Milos ˇevic ´ (IT-02-54-T), Decision on Motion
for Judgment of Acquittal, 16 June 2004, para. 49.
94 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
the Regulations annexed to the fourth Hague Convention of 1907.
125
The
1977 Additional Protocols to the Geneva Conventions have also been deemed
incorporated, at least to a significant extent, within article 3 of the ICTY
Statute. According to a Trial Chamber, the application of the Protocols within
the context of article 3 resulted from their ratification, by the former Socialist
Federal Republic of Yugoslavia, and whether they also reflected customary law
at the relevant time was ‘beside the point’.
126
Along the same lines, given some
uncertainty as to whether article 4 of the ICTR Statute was consistent with
customary international law, Trial Chambers have confirmed the application
of common article 3 and Additional Protocol II within Rwanda as a matter of
treaty law.
127
The genocide provision in the ICTY and ICTR statutes is essentially 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 pre´paratoires of the Convention have been deemed of considerable
relevance in interpreting the genocide provisions of the statutes themselves.
129
The definition of crimes against humanity is also drawn from treaty law.
Article 5 of the ICTY Statute, and the equivalent (but slightly diVerent)
provisions in the other two statutes, is based on article VI(c) of the 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; Hadzˇihasanovic ´ 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. 156–158;
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 90;
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 242.
128
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
UNTS 277.
129
Krstic ´ (IT-98-33-A), Judgment, 19 April 2004, para. 25, fn. 39, para. 142.
130
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 289.
131
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171. See: Limaj
et al. (IT-03-66-AR65.3), Decision on Isak Musliu’s Request for Provisional Release, 31
October 2003, paras. 8–9; Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge
Pocar, 26 May 2003.
132
Convention for the Protection of Human Rights and Fundamental Freedoms (‘Eur-
opean Convention on Human Rights’), (1955) 213 UNTS 221. See: Hadz ˇihasanovic ´ et al.
S O U R C E S O F L AW 95
and Other Cruel, Inhuman and Degrading Treatment or Punishment,
133
the
International Convention on the Suppression and Punishment of the Crime of
Apartheid,
134
the Convention on the Rights of the Child;
135
humanitarian law
treaties, such as the 1954 Convention for the Protection of Cultural Property in
the Event of Armed Conflict;
136
and international criminal law treaties, such
as the International Convention for the Suppression of Terrorist 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.
991–999.
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. 14–16.
136
Convention for the Protection of Cultural Property in the Event of Armed Conflict,
(1956) 249 UNTS 240. See: Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 98; Strugar (IT-01-42-T),
Judgment, 31 January 2005, para. 229; Kordic ´ et al. (IT-95-14/2-A), Judgment, 17
December 2004, paras. 91–92.
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’.
96 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
Customary international law
Customary law is defined by article 38(b) of the Statute of the International
Court of Justice as ‘international custom, as evidence of a general practice
accepted as law’.
143
One of the great contributions of the tribunals to the
progressive development of international law is in their frequent and 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 specific privilege granted by the Rules
and the Statute, the judicial inquiry should extend to customary international
law.
145
Similarly, despite the silence of the RPE on an application by way of
habeas corpus, this is a customary legal right available to an accused.
146
The
existence of the procedure is a fundamental right, set out in various 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. 40–42 (also paras.
74, 76, 80).
145
Simic ´ et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a
Ruling Concerning the Testimony of a Witness, 27 July 1999. Similarly, in Kajelijeli
(ICTR-98-44A-A), Judgment, 23 May 2005, para. 209, the ICTY Appeals Chamber
identified three sources of law, the Statute, the RPE and customary international law.
146
Milos ˇevic ´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 38;
Simic ´ et al. (IT-95-9-PT), Separate Opinion of Judge Robinson, 18 October 2000, para. 2;
Barayagwiza (ICTR -97-19-AR72), Decision, 3 November 1999, para. 88. Contra:
Brðanin (IT-99-36-PT), Decision on Petition for a Writ of Habeas Corpus on
Behalf of Radoslav Brðanin, 8 December 1999.
147
Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, art. 8;
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 9(4).
Convention for the Protection of Human Rights and Fundamental Freedoms (‘Eur-
opean Convention on Human Rights’), (1955) 213 UNTS 221, art. 5(4).
148
Blas ˇkic ´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 64.
S O U R C E S O F L AW 97
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 ICTY’s operations,
judges have invoked customary law to justify giving article 3 a broad scope. It
has been described as a ‘residual clause’
151
or ‘umbrella rule’
152
encompassing
any serious violation of a rule of customary international humanitarian law
entailing individual criminal responsibility of the perpetrator. One of the
paradoxes of international criminal law, international humanitarian law and
international human rights law is that the search for evidence of customary
law seems to lead, inexorably, to treaties. This is something of a tautology,
except that treaties, even if not ratified by the State in question, often provide
the best manifestation of the widespread acceptance of the norm in question.
An example of this thinking is the discussion of torture by an ICTY
Trial Chamber, in Furundzˇija. It cited the Lieber Code, the Hague 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 Prosecutor’s Motion, 27 July 1999, para. 20: ‘It may be accepted that the Tribunal is
bound by customary international law, as is the United Nations itself.’
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. 73–81.
150
France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, at p. 219.
151
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 91; Kunarac et al. (IT-96-23/1-A), Judgment, 12 June
2002, para. 68; Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 218.
152
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 133.
153
Ibid., para. 137.
98 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
ICTY Trial Chamber indicated its inclusion in several instruments, including
article IV of the Genocide Convention and article 27 of the Rome Statute of
the International Criminal Court.
154
There is substantial authority for the
view that ‘the most important provisions’ of the four Geneva Conventions, as
well as the two Additional Protocols, constitute a codification of customary
international law.
155
Consequently, by and large the tribunals have associated customary inter-
national law with codified 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 confirmed by its inclusion in Additional
Protocol II.
160
In Erdemovic ´, the ICTY Appeals Chamber referred to the
Nuremberg Charter as evidence that a crime of conspiracy was part of
customary international law, noting that the Charter ‘subsequently obtained
recognition as custom’.
161
In Tadic ´, it observed that article VI(c) of the
Nuremberg Charter did not make discriminatory intent an element of all
forms of crimes against humanity, concluding that this was therefore not a
154
Milos ˇevic ´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 30.
See also: Hadz ˇihasanovic ´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdic-
tion, 12 November 2002, paras. 68–84.
155
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 137.
156
Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 209.
157
Furundzˇija (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 ˇevic ´ (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 ˇkic ´ (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.
S O U R C E S O F L AW 99
requirement under customary international law.
162
Elsewhere, it bolstered its
conclusion that duress was not a defence at customary international law by
noting that ‘it is not contained in any international treaty or instrument
subsequently recognised to have passed into custom’.
163
But treaties do not always codify customary international law, even in the
spheres of international humanitarian law and international criminal law.
They are the fruit of diplomatic compromise, and may sometimes exceed
and often fall short of customary law. For example, the Rome Statute of the
International Criminal Court appears to deviate from custom in a number of
areas, including its inadequate codification of prohibited 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 ratified the Rome Statute, it appended a declaration stating that it
considered that article 31(1)(c) could only be applied and interpreted ‘having
regard to the rules of international humanitarian law which may not be
derogated from’.
Referring to the definition of crimes against humanity in the Nuremberg
Charter, the 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 find
this to be the case. Where customary crimes are not codified in treaties
judges have tended to take this as evidence that they are not, in fact, criminal
under customary law. In Krnojelac, for example, a Trial Chamber said torture
intended to ‘humiliate’ the victim was not within the Tribunal’s 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
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 289.
163
Erdemovic ´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah,
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 conflits arme´s, 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
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 108.
168
Ibid., para. 353.
100 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
The statutes themselves provide evidence of custom. In one case, an ICTY
Trial Chamber said that the inclusion of superior responsibility liability in
article 7(3) of the Statute ‘should be read as a reflection of the reasonable and
well-supported views of the Security Council and the Secretary-General that
this norm formed part of customary international law at the time covered by
the mandate of the International Tribunal’.
169
But although there is a 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 conflict’ and the
requirement in article 4 of the ICTR Statute that crimes against humanity
be perpetrated ‘on national, political, ethnic, racial or religious grounds’ are
both inconsistent with contemporary interpretations.
171
Peremptory or jus cogens norms are rules of customary international law
from which no derogation by treaty is permitted. Article 53 of the Vienna
Convention on the Law of Treaties declares that a treaty is void if, at the time
of its conclusion, it conflicts with a peremptory norm of general international
law. It continues: ‘For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.’
172
Defendants have repeatedly argued that various provisions of the statutes
of the ad hoc tribunals breach jus cogens norms, specifically the fair trial
rights that are codified by instruments like the International Covenant on
Civil and Political Rights. As a rule, judges have given such claims short
shrift.
173
Judgments of the tribunals have occasionally referred to specific
norms as being jus cogens, such as the prohibitions of genocide
174
or
169
Hadzˇihasanovic ´ et al. (IT-01-47-PT), Decision on Joint Challenge to Jurisdiction, 12
November 2002, para. 171.
170
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 296.
171
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 141; Tadic ´ (IT-94-1-A), Judgment, 15 July 1999,
para. 305.
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
S O U R C E S O F L AW 101
torture.
175
In C
ˇ
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 finding that a norm was jus cogens had a practical
consequence was in a ruling acknowledging a right to appeal a contempt
conviction made by the Appeals Chamber itself, despite the silence of
the Statute and the RPE on this point. The Appeals Chamber noted
that there was a right to appeal in article 14(5) of the International Covenant
on Civil and Political Rights, which it said was ‘an imperative norm of
international law’.
178
General principles of law
The third principal source of public international law listed in article 38(1) of
the Statute of the International Court of Justice is ‘general principles of law
recognised by civilised nations’. The language is archaic, and a more acceptable
and contemporary formulation of essentially the same concept appears in
article 21(1)(c) of the Rome Statute: ‘general principles of law derived by the
Court from national laws of legal systems of the world’. Although
often confused with customary international law,
179
evidence of general 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; Brðanin
(IT-99-36-T), Judgment, 1 September 2004, para. 680.
175
Delalic ´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 225; Furundzˇija
(IT-95-17/1-T), Judgment, 10 December 1998, paras. 155–157; Prosecutor v. Kunarac
et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 466.
176
Delalic ´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 172, fn. 225.
177
Kupres ˇkic ´ (IT-95-16-T), Judgment, 14 January 2000, para. 530.
178
Tadic ´ (IT-94-1-A-AR77), Appeal Judgment on Allegations of Contempt Against Prior
Counsel, Milan Vujin, 27 February 2001. The expression ‘imperative norm’ is a bit of a
Gallicism. The French term norme imperative is used in article 53 of the Vienna
Convention on the Law of Treaties. The English equivalent is ‘peremptory norm’, i.e.,
a norm of jus cogens.
179
Delalic ´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 321; Hadz ˇihasanovic ´
et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in
Relation to Command Responsibility, 16 July 2003, para. 93.
102 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
judicata,
180
the doctrine of estoppel,
181
the rule of good faith and equity,
182
and the obligation to make reparation for breach of an engagement.
183
As one
ICTY Trial Chamber explained,
[t]he value of these sources is that they may disclose ‘general concepts and
legal institutions’ which, if common to a broad spectrum of national legal
systems, disclose an international approach to a legal question which may
be considered as an appropriate indicator of the international law on the
subject. In considering these national legal systems the Trial Chamber does
not conduct a survey of the major legal systems of the world in order to
identify a specific legal provision which is adopted by a majority of legal
systems but to consider, from an examination of national systems 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 finding in the
private law institutions indications of legal policy and principles appropriate
to the solution of the international problem at hand.’
185
Occasionally, the tribunals have referred to ‘general principles of criminal
law’ or ‘general principles of international criminal law’. For example,
General principles of international criminal law, whenever they may be
distilled by dint of construction, generalisation or logical inference, may
also be relied upon. In addition, it is now clear that to fill possible gaps in
international customary and treaty law, international and national 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 fill any lacunae in
the Statute of the International Tribunal and in customary law. However, it
will always be necessary to bear in mind the dangers of wholesale 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. 129–148.
182
Diversion of Water from the Meuse Case (Netherlands v. Belgium), [1937] PCIJ Reports,
Series A/B, No. 70, pp. 76–77.
183
Chorzo´w 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
Kupres ˇkic ´ (IT-95-16-T), Judgment, 14 January 2000, para. 677.
187
ICTY Statute, art. 28; ICTR Statute, art. 27.
S O U R C E S O F L AW 103
principles’ are mentioned in the RPE’s residual evidentiary clause: ‘In cases
not otherwise provided for in this Section, a Chamber shall apply rules of
evidence which will best favour a fair determination of the matter before it
and are consonant with the spirit of the Statute and the general principles of
law.’
188
The Secretary-General’s report to the Security Council on the draft
ICTY Statute expressly acknowledged the role of general principles: ‘The
International Tribunal itself will have to decide on various personal defences
which may relieve a person of individual criminal responsibility, such as
minimum age or mental incapacity, drawing upon general principles of law
recognised by all nations.’
189
Judges McDonald and Vohrah of the Appeals Chamber in Erdemovic ´
discussed the identification of general principles in some detail:
[A]lthough general principles of law are to be derived from existing legal
systems, in particular, national systems of law, it is generally accepted
that the distillation of a ‘general principle of law recognised by civilised
nations’ does not require the comprehensive survey of all legal systems of
the world as this would involve a practical impossibility and has never
been the practice of the International Court of Justice or other 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 specific rules. As stated
by the Italian–Venezuelan Mixed Claims Commission in the Gentini case:
A rule . . . is essentially practical and, moreover, binding; there
are rules of art as there are rules of government, while a 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 specific rules of each of the world’s 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
Erdemovic ´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah,
7 October 1997, para. 57 (references omitted).
104 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
Judge Cassese, in his separate and dissenting opinion, agreed that ‘no
universal acceptance of a particular principle by every nation within the main
systems of law is necessary’ before a general principle is admitted.
191
He cited
the post-Second World War Hostages case, where it was held that if a principle
‘is found to have been accepted generally as a fundamental rule of justice by
most nations in their municipal law, its declaration as a rule of international
law would seem to be fully justified’.
192
Judges McDonald, Vohrah and Cassese were in general agreement about the
methodology, but they reached quite diVerent conclusions about the content of
general principles of law concerning the defence of duress. While Judges
McDonald and Vohrah concluded it was not available to a charge of crimes
against humanity, Judge Cassese reached the opposite conclusion. In another
case, an ICTY Trial Chamber referred to a post-Second World War case in
ruling that ‘under general principles of law, an accused does not exculpate
himself from a crime by showing that another has committed a similar crime,
either before or after the commission of the crime by the accused’.
193
In the area of criminal law, ‘general principles’ have even been invoked with
respect to the crimes themselves. Thus, the ICTY Appeals Chamber in the
C
ˇ
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 confirmed in article 15(2) of the International
Covenant on Civil and Political Rights, which excepts from the nullum crimen
rule ‘punishment of any person for any act or omission which, at the time
when it was committed, was criminal according to the general principles of
law recognized by the community of nations’.
195
In defining the crime of rape,
Trial Chambers have looked to general principles, although, again, they have
not always come to the same conclusion.
196
Often, recourse to general principles focuses on procedural and evidentiary
matters. The concept of res judicata was recognised as a general principle of
191
Erdemovic ´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
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 ˇkic ´ (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
Delalic ´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 180.
195
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 15(2).
Also: Convention for the Protection of Human Rights and Fundamental Freedoms
(‘European Convention on Human Rights’), (1955) 213 UNTS 221, art. 7(2). No such
exception exists in the American Convention on Human Rights, (1978) 1144 UNTS 123.
196
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 177; Kunarac et al.
(IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 439.
S O U R C E S O F L AW 105
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 fitness to stand
trial, an ICTY Trial Chamber found ‘material assistance’ in a number of the
procedural rights provisions of the Statute, as well as in the reference to
‘general principles of law’ in the Report of the Secretary-General that 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 identified.
204
Certainly, it is not always a simple matter to
extract general principles from criminal justice systems, with their widely
diVering approaches, particularly in the field of procedure.
205
Faced with
disagreement among his colleagues on whether general principles supported
197
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-
cutor’s Motion for Judicial Notice of Adjudicated Facts, 22 November 2001, para. 42;
Prosecutor v. Nyiramasuhuko (ICTR-98-42-T), Decision on the Prosecutor’s Motion for
Judicial Notice and Admission of Evidence, 15 May 2002, para. 23.
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 ˇihasanovic ´ 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 Landzˇo, for
Permission to Obtain and Adduce Further Evidence on Appeal, 7 December 1999.
201
Tadic ´ (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 January 2000.
202
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s 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 Prosecutor’s
Motion, 27 July 1999, para. 24.
106 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
the admissibility of a defence of duress, Judge Li said that ‘[n]ational laws
and practices of various States on this question are also divergent, so that
no general principle of law recognised by civilised nations can be deduced
from them’.
206
Subsidiary sources: judicial decisions and academic writing
Judicial decisions and ‘the teachings of the most highly qualified publicists
of the various nations’ are the two subsidiary means for the determination of
rules of public international law set out in article 38(1)(d) of the Statute of
the International Court of Justice.
207
Here the tribunals depart from this
general statement of the sources of public international law because they
treat the rulings of their own Appeals Chambers as authoritative, and not
merely ‘subsidiary’. The statutes do not provide an indication of the role of
precedent in the workings of the tribunals, although this might be 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
Kupres ˇkic ´ (IT-95-16-T), Judgment, 14 January 2000, para. 540.
208
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 99–100. Also Aleksovski
(IT-95-14/1-A), Declaration of Judge David Hunt, 24 March 2000.
209
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 112–113; 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;
Brðanin et al. (IT-99-36-PT), Decision on Application by Momir Talic´ for the Disqua-
lification 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 Conflict 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. 41–45; Tadic ´ (IT-94-1-A),
Judgment, 15 July 1999, paras. 255–270; Milos ˇevic ´ (IT-02-54-PT), Decision on Preli-
minary Motions, 8 November 2001, paras. 32–33.
S O U R C E S O F L AW 107
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 ˇevic ´ (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 ˇka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of
the Indictment, 12 April 1999, para. 32.
214
Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 719.
215
SCSL Statute, art. 20(3).
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. 104–110.
218
Ibid.
108 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
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 financial and
administrative constraints of a formal institutional link.
This explains why the Secretary-General proposed that the SCSL Appeals
Chamber would be ‘guided’ by the decisions of the ICTY and ICTR Appeals
Chambers.
220
An example of the synergy between the diVerent tribunals can be seen in
their eVorts to define the crime of rape. In the first conviction for rape by
either tribunal, the ICTR proposed a definition
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 confirmed by the ICTY Appeals Chamber.
225
As a
result, ICTR Trial Chambers abandoned their earlier case law and followed the
approach of the ICTY Appeals Chamber, describing the latter as being ‘of
persuasive authority’.
226
Development of the joint criminal enterprise doctrine
of criminal participation provides another example. This was first set out in
detail by the ICTYAppeals Chamber, which found it to be implied within the
219
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915, paras. 42–46.
220
Ibid., para. 41.
221
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 597–598.
222
Delalic ´ et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 477–479.
223
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 226.
224
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 181, 185; Kunarac et al.
(IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 412.
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.
345–346. However, in a judgment issued after the ICTYAppeals Chamber had, in eVect,
rejected the Akayesu definition, an ICTR Trial Chamber that included Judge Pillay, who
had been a member of the Akayesu bench, ignored Kunarac and simply reaYrmed the
Akayesu definition: Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003,
para. 456.
S O U R C E S O F L AW 109
terms of article 7(1) of the Statute.
227
For several years, the ICTR Trial
Chambers did not rely upon the doctrine, although article 6(1) of the ICTR
Statute has essentially identical terms. Finally, the ICTR Appeals Chamber
ruled: ‘Given the fact that both the ICTY and the ICTR have mirror articles
identifying the modes of liability by which an individual can incur criminal
responsibility, the Appeals Chamber is satisfied that the jurisprudence of the
ICTY should be applied to the interpretation of Article 6(1) of the ICTR
Statute.’
228
The tribunals have also drawn on a broad range of other judicial 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 world’s major constitutional courts,
including the House of Lords, the Supreme Courts of Canada and the United
States and the French Conseil constitutionnel. Here they are more comfortably
within the parameters of article 38(1)(d) of the Statute of the International
Court of Justice, using the decisions not as binding precedent but as 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 specifically,
precedents may constitute evidence of a customary rule in that they are
227
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 193.
228
Ibid., para. 468.
229
Semanza (ICTR-97-20-A), Separate Opinion of Judge Shahabuddeen, 31 May 2000,
para. 25.
230
Delalic ´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 24.
110 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
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 organisation’s ‘principal judicial organ’.
233
It has been argued that
there is an implied hierarchy, and that as ad hoc United Nations tribunals the
ICTY, ICTR and SCSL are bound to comply with legal determinations of the
International Court of Justice. Early on, however, the ICTYopenly departed from
an important ICJ precedent.
234
It rejected the idea of a hierarchical relationship
with the ICJ.
235
There is also the potential for conflicting rulings between the ICJ
and the ICTY not only on matters of law but on factual issues. For example, the
ICTY Appeals Chamber has determined that genocide was committed in the
former Yugoslavia,
236
while the same question is pending, but not yet adjudi-
cated, before the ICJ in two cases, filed by Bosnia and Herzegovina
237
and by
231
Kupres ˇkic ´ (IT-95-16-T), Judgment, 14 January 2000, para. 540.
232
Ibid., para. 542.
233
Charter of the United Nations, art. 92.
234
See below at pp. 243–245.
235
Delalic ´ et al. (IT-96-21-A), Judgment, 20 February 2001, para. 24. See: Theodor Meron,
‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout’, (1998)
92 American Journal of International Law 236; Mark A. Drumbl, ‘Looking Up, Down
and Across: The ICTY’s Place in the International Legal Order’, (2003) 37 New England
Law Review 1037; The´odore Christakis, ‘Les relations entre la CIJ et le Tribunal pe´nal
international pour l’ex-Yougoslavie: les premie`res fissures a` l’unite´ du droit?’, (1996) 1
L’observateur des Nations Unies 45.
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
S O U R C E S O F L AW 111
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
qualified publicists of the various nations’, rather like the International Court
of Justice the tribunals do not cite academic writing very frequently, although
this is more common in individual or dissenting opinions. For example, in
2004, the ICTY and ICTR Appeals Chambers issued six major and lengthy
judgments on appeal from convictions, consisting of somewhat more than
1,000 pages in total. Only sixteen diVerent academic authorities are cited in
this corpus of jurisprudence.
240
Sometimes a list of academic writing 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 qualified 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, ‘L’aVaire relative a` l’application de la Convention pour la pre ´vention et la
re´pression du crime de ge´nocide (Bosnie-Herze´govine c. Yougoslavie), Arreˆt du 11 juillet
1996, exceptions pre´liminaires’, (1996) 42 Annuaire franc ¸ais de droit international 357.
238
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Yugoslavia), Application, 2 July 1999.
239
Kvoc ˇka 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 ˇkic ´ (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: five references.
112 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
procedure in the event of silence in the written rules, so as to assure the
exercise of such jurisdiction as it has, and to fulfil itself, properly and 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 benefit 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
Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999,
p. 17; Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge Shahabuddeen, 3
June 1999.
242
Blas ˇkic ´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 33.
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
Miscellaneous – Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga
Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002.
But see: Miscellaneous – Kabuga Family-01-A, Declaration of Judge Shahabuddeen, 22
November 2002.
S O U R C E S O F L AW 113
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 ˇkic ´ (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
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, paras. 318–326.
249
Delalic ´ et al. (IT-96-21-A), Decision of the President on the Prosecutor’s Motion for
the Production of Notes Exchanged between Zejnil Delalic´ and Zdravko Mucic´, 11
November 1996, paras. 26–28; Blas ˇkic ´ (IT-95-14-AR108bis), Judgment on the Request of
the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997,
29 October 1997, para. 59; Tadic ´ (IT-94-1-AR77), Judgment on Allegations of Contempt
Against Prior Counsel, Milan Vujin, 31 January 2000, para. 26; Aleksovski, (IT-95-14/
1-AR77), Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May
2001, para. 30; Simic ´ et al. (IT-95-9-PT), Judgment on Allegations of Contempt against
an Accused and his Counsel, 30 June 2000; Brðanin (IT-99-36-R77), Concerning
Allegations Against Milka Maglov, Decision on Motion for Acquittal Pursuant to Rule
98bis, 19 March 2004, para. 15.
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 pe´nal 267, at pp. 276–277; Andre´
Klip, ‘Tadic ´, Decisions Relating to the False Testimony of Opacic’, in Andre´ Klip and
Go¨ran Sluiter, eds., Annotated Leading Cases of International Tribunals, vol. I, Antwerp:
Intersentia, 1999, pp. 214–216, at p. 214; William A. Schabas, ‘Le Re`glement de preuve et
de proce´dure du Tribunal international charge´ de poursuivre les personnes pre´sume´es
responsables de violations graves du droit international humanitaire commises sur le
territoire de l’ex-Yougoslavie depuis 1991’, (1993–1994) 8 Revue que´be´coise de droit
international 112.
252
ICTY RPE, Rule 77(E); ICTR RPE, Rule 77(A); SCSL RPE, Rule 77(A).
114 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
The Tribunal does, however, possess an inherent jurisdiction, deriving
from its judicial function, to ensure that its exercise of the jurisdiction
which is expressly given to it by that Statute is not frustrated and that its
basic judicial functions are safeguarded. As an international criminal
court, the Tribunal must therefore possess the inherent power to deal with
conduct which interferes with its administration of justice. The content of
that inherent power may be discerned by reference to the usual sources of
international law.
253
The ICTY Appeals Chamber has ruled that the Tribunal does not have the
inherent power to take enforcement measures against States.
254
However, the
Tribunal ‘is endowed with the inherent power to make a judicial finding
concerning a State’s failure to observe the provisions of the Statute or the
Rules. It also has the power to report this judicial finding to the Security
Council.’
255
Inherent powers have been invoked as justification for a departure from the
RPE. For example, an ICTY Trial Chamber considered it could make an
exception to the rule that the only persons who may appear before it are
those who meet the requirements that must ordinarily be fulfilled in order to
be admitted as counsel before the Tribunal.
256
Similarly, another Trial Cham-
ber said its inherent power to control proceedings was adequate foundation to
refuse audience to counsel, despite the fact he was qualified under Rule 44(A)
of the RPE, because he was ‘for other reasons not a fit and proper person to
appear before the Tribunal’.
257
However, according to the ICTY Appeals
Chamber, ‘[t]he only inherent power that a Trial Chamber has is to ensure
that the trial of an accused is fair; it cannot appropriate for itself a power
which is conferred elsewhere’.
258
The Appeals Chamber was considering the
powers of the Trial Chamber to review a decision by the Registrar refusing to
withdraw counsel who had been assigned to the accused. The Appeals Cham-
ber took the view that unless the application, which was normally within the
253
Tadic ´ (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 January 2000, para. 13 (references omitted).
254
Blas ˇkic ´ (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 25.
255
Ibid., para. 33.
256
Kupres ˇkic ´ 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.
S O U R C E S O F L AW 115
competence of the Registrar, raised issues of fairness of the trial, the Trial
Chamber should not determine the matter.
259
The Appeals Chamber has confirmed that Trial Chambers have the 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 Tribunal’s own detention unit
is such a substantial proportion of the final sentence imposed that it is fair and
just to release the prisoner immediately. Were the prisoner to be transferred to
a national prison, he or she would be subject to immediate release. In such
cases, the President of the ICTY has relied on inherent powers and authorised
early release.
261
Human rights law
Contemporary human rights law is derived from all of the sources of public
international law, and principally from treaty law and custom. Although dealt
with under those headings previously in this chapter, certain special remarks
are in order. The statutes refer to international human rights law when they
require that judges be selected for their experience in ‘international law,
including international humanitarian law and human rights law’.
262
The
tribunals are often thought of within the rubric of ‘international humanitarian
law’, in part because of the reference to this concept in the statutes themselves.
But it is also reasonable to view them as being bodies for the enforcement of
international human rights law. Although the war crimes provisions clearly
belong to international humanitarian law, this is not nearly as evident with
respect to genocide and crimes against humanity, especially once it is
acknowledged that the latter two crimes can be committed in peacetime.
The etymology of crimes against humanity associates it with human rights
law. As for genocide, it is a concept intended to develop an early generation of
259
Milos ˇevic ´ (IT-02-54-T), Decision on Assigned Counsel’s Motion for Withdrawal, 7
December 2004, para. 10.
260
Tadic ´ (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000.
261
For the early release of Blasˇkic´, whose sentence was reduced from forty-five years to nine
years, of which he had served eight, see: Eleventh Annual Report of the ICTY, UN Doc.
A/59/215-S/2004/627, annex, para. 230. Also: Sikirica et al. (IT-95-8-S), Order of the
President on the Early Release of Dragan Kolundzija, 5 December 2001.
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.
116 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
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 defined in article 7, paragraph 3, age, race, colour, language,
religion or belief, political or other opinion, national, ethnic or social origin,
wealth, birth or other status.’
264
Nevertheless, there is perhaps an inevitable
tension between the human rights law dimension of the tribunals and their
inherently repressive nature. Traditionally, human rights law has been 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 first
motions to be adjudicated by the ICTY, a defence lawyer contested the
Prosecutor’s 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 Pocar’s
dissenting opinion in Rutaganda. Judge Pocar is himself a man of impeccable
human rights credentials, having been elected to the ICTY after serving for
more than a decade on the United Nations Human Rights Committee, a body
that he also chaired. Judge Pocar argued that the ICTY Statute should be
interpreted in accordance with general international human rights law, and
more specifically the International Covenant on Civil and Political Rights.
Article 14(5) of the Covenant, which was not reproduced in the ICTY Statute,
recognises the right to have a conviction and sentence reviewed by a higher
tribunal. Judge Pocar was concerned that this would be denied if the Appeals
Chamber reversed an acquittal, rather than refer the case back to a Trial
Chamber for a new determination. He wrote:
Furthermore, the ICCPR [International Covenant on Civil and Political
Rights] is not only a treaty between States which have ratified it, but, like
263
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, paras. 555–556.
264
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 21(3).
265
ICTY Statute, art. 21; ICTR Statute, art. 20; SCSL Statute, art. 17.
266
Tadic ´ (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures
for Victims and Witnesses, 10 August 1995, para. 28.
S O U R C E S O F L AW 117
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 ratified 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 justified if international rules make
explicit reference to national law or if such reference is necessarily implied
by the very content and nature of the concept’.
270
National criminal law is
invoked very much in the sense of comparative criminal law, and in this
respect the ad hoc tribunals are not very diVerent from those national courts
267
Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003.
268
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 195.
269
Erdemovic ´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
1997, para. 45 (emphasis in the original).
270
Ibid. See also: Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 178.
118 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
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
ˇ
erkez, an ICTY Trial Chamber considered the various
domestic law equivalents of the motion to dismiss that is traditionally filed
at the conclusion of the case for the prosecution, in interpreting the scope of
Rule 98 bis of the RPE. Noting that Rule 98bis proceedings bear a close
resemblance to applications for no case to answer in common law jurisdic-
tions, the Trial Chamber said its determination might ‘be influenced by
features of the regime in domestic jurisdictions with similar proceedings,
but will not be controlled by it; and therefore a proper construction of the
Rule may show a modification of some of those features in the transition
from its domestic berth’.
273
National law, including the case law of national
criminal courts, is also evidence of State practice, and may consequently be
relevant to the identification of customary legal norms.
The SCSL Statute incorporates some provisions of Sierra Leonean criminal
law concerning sexual oVences against children,
274
and directs the judges to
provisions of the country’s law of criminal procedure as a secondary source of
legal rules.
275
The Statute specifies that in the interpretation and application
of the laws of Sierra Leone, the judges of the Appeals Chamber ‘shall be guided
by the decisions of the Supreme Court of Sierra Leone’.
276
The penalty provisions of the statutes also invite recourse to national law.
The ICTYand ICTR are specifically instructed to ‘have recourse to the general
practice regarding prison sentences’ applicable to the relevant national courts
in the territory where the crime was committed at the time of the oVence.
277
In a slight variant on this provision, the SCSL is directed to ‘have recourse to
the practice regarding prison sentences in the International Criminal Tribunal
for Rwanda and the national courts of Sierra Leone’.
278
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
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 225.
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
SCSL Statute, art. 5.
275
Ibid., art. 14(2).
276
Ibid., art. 20(3).
277
ICTY Statute, art. 24(1); ICTR Statute, art. 23(1).
278
SCSL Statute, art. 19(1).
S O U R C E S O F L AW 119
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 specifically 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 specific reference to ‘public policy’ is
rare, many rulings take the concept into account. For example, when Judge
Robertson of the SCSL determined that a detained witness could testify before
the Truth and Reconciliation Commission in a closed hearing, he was 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., Man’s Inhumanity to Man, The
Hague: Kluwer Law International, 2003, pp. 889–898.
280
Erdemovic ´ (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah,
7 October 1997, para. 78.
281
Erdemovic ´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, para. 8.
282
Erdemovic ´ (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
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
TRC’s Request to Hold a Public Hearing With Chief Samuel Hinga Norman JP, 28
November 2003.
120 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
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 compe´tence, and this is of course
also an English word, but with a somewhat diVerent meaning. Jurisdiction is
the better word. The three provisions state: ‘The [tribunal] shall have the
power . . .’ What follows is a provision outlining the territorial and temporal
jurisdiction of the tribunal, and then a series of articles defining the crimes
over which the tribunals have jurisdiction. Jurisdiction has been defined as
‘the power of a court to decide a matter in controversy and presupposes the
existence of a duly constituted court with control over the subject matter and
the parties’.
1
The three tribunals cannot prosecute cases involving individuals,
territories and crimes that are not either explicitly or implicitly within their
powers, that is, their jurisdiction.
Primacy
Before addressing the specific issues concerning territorial, personal and
temporal jurisdiction, some attention must be paid to potential conflicts of
jurisdiction and the correct approach to their resolution. All three statutes
declare, in provisions entitled ‘concurrent jurisdiction’, that they ‘shall have
primacy’ over national courts.
2
The ICTY and ICTR statutes refer to 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
Black’s Law Dictionary, 6th edn, St Paul, MN, 1990, p. 853, cited by Judge Shahabuddeen
in Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June
1999, p. 3.
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. Dusˇko Tadic´ had been
arrested in Munich, and prosecution had been initiated before German
courts. The ICTY Prosecutor invoked ‘primacy’ and demanded that the
national prosecution be stayed in favour of the International Tribunal. 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´ d’aVaires a.i. of the Permanent Mission
of Zaire to the United Nations addressed to the President of the Security Council’, UN
Doc. S/1994/1267.
4
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 56 (citing article 2(7) of the Charter of the United
Nations).
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 conflicts with national justice systems, as
in the Karamira case, the primacy of jurisdiction has also worked in a
cooperative manner. Explaining the relationship between the ICTY Prosecutor
and the German authorities in the case of Novislav Djajic´ and Nikola Jorgic´,
the Prosecutor said:
The Djajic and Jorgic cases were initiated and investigated by the German
authorities, who consulted with the OYce of the Prosecutor of the 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 justified 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-conflict Agenda: The
International Community in Rwanda after the Genocide’, (2001) 22 Third World Quarterly
177; Peter Uvin and Charles Mironko, ‘Western and Local Approaches to Justice in
Rwanda’, (2003) 9 Global Governance 219; Michael P. Scharf, ‘Justice in Practice-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 ge´nocide 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 Arbour’s Statement Regarding War Crimes Related Trials Currently Under-
way in Germany, ICTY Doc. CC/PIO/171-E, 19 March 1997).
9
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 58.
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 Tribunal’s
activities, he was desperate for a case to prosecute. Were Tadic´ to have been
arrested ten years later, when the Tribunal was suVering under a crushing
caseload as well as intense pressure from the Security Council to conclude its
operations, it is highly unlikely that the Prosecutor would have meddled with
German attempts to bring him to justice. As the tribunals entered their late
middle age, in 2003 and 2004, they were looking to refer cases to national
jurisdictions, and not to intervene under the principle of primacy. Growing
confidence in the ability of the national courts of States of the former
Yugoslavia to administer justice is also a factor in this development.
Because jurisdiction is territorially limited, there is no question of the
ad hoc tribunals exercising universal jurisdiction. Even though universal
jurisdiction may be permitted by public international law,
10
its use must be
authorised in the enabling legislation of the court in question, and this is not
the case with respect to the ad hoc tribunals. The ICTY made a gesture of
support for the concept of universal jurisdiction when its RPE were amended
in order to authorise referral of cases from the Tribunal. Rule 11 bis, as
amended on 10 June 2004, allows the judges of the ICTY to refer a case
pending before the Tribunal to any State ‘having jurisdiction and being willing
and adequately prepared to accept such a case’.
11
The corresponding rule at
the ICTR authorises referral to ‘any State that is willing to prosecute the
accused in its own courts’.
12
But as the Appeals Chamber implied in Tadic ´, the rule of primacy was really
devised in order to resolve conflicts with the national jurisdictions that might
shelter an oVender from genuine prosecution. A rule of primacy has had the
advantage of vacating any serious debate concerning such conflicts of 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 flawed precisely because of this distinction with the
ad hoc tribunals. As long as States that would normally exercise jurisdiction
over oVences could argue that they were proceeding with an investigation, the
ICC would be barred from intervening, and this might take many years to
resolve, said Louise Arbour.
14
10
See the discussion below at pp. 157–158.
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
126 J U R I S D I C T I O N
Related to the issue of primacy is the question of multiple prosecutions, or
double jeopardy, often known by the Latin expression non bis in idem or ne bis
in idem. While the rule of primacy resolves conflicts between competing
courts at the beginning of prosecution, it is also necessary to provide a norm
to settle issues when one of the courts has completed its work. The general
principle that a person should not be tried twice for the same oVence receives
limited recognition in international human rights law. Article 14(7) of the
International Covenant on Civil and Political Rights states: ‘No one shall be
liable to be tried or punished again for an oVence for which he has already
been finally convicted or acquitted in accordance with the law and penal
procedure of each country.’ However, this has been interpreted to apply only
within a State, and not to address the exercise of jurisdiction by the courts of
one State when someone has been prosecuted within another State.
15
The non bis in idem provisions in the three statutes are largely similar.
16
Basically, they provide that no person may be tried by a national court for acts
that constitute serious violations of international humanitarian law if he or
she has already been tried by the relevant international tribunal. In the case of
the SCSL, the provision is rather more restricted, referring not to any ‘national
court’ but to ‘a national court of Sierra Leone’. For the ICTY and ICTR, this
constitutes an encroachment on national sovereignty, as it purports to prevent
a national court from exercising the jurisdiction for which it would normally
be empowered.
The statutes also address the possibility that national courts may already
have adjudicated a case.
17
In such circumstances, the international tribunal
may nevertheless intervene and proceed when the act in question was 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 flawed. 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
ICTY Statute, art. 10; ICTR Statute, art. 9; SCSL Statute, art. 9.
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.
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 127
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 finds no reflection in the
principal human rights instruments,
18
although it is certainly engaged by
the general right of an accused to a fair trial.
19
In Tadic ´, the principle was invoked as part of the preliminary challenge to
jurisdiction. The accused had been arrested in Germany and proceedings had
been initiated before the application from the ICTY Prosecutor for transfer of
the case to The Hague. The Appeals Chamber said: ‘As a matter of fact and of
law the principle advocated by the Appellant aims at one very specific goal: to
avoid the creation of special or extraordinary courts designed to try political
oVences in times of social unrest without guarantees of a fair trial.’ It insisted
that there was no violation of the principle by the transfer of jurisdiction to an
international tribunal created by the Security Council acting on behalf of the
community of nations. The 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 finally 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
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 61.
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. 30–32.
128 J U R I S D I C T I O N
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 defines 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 Bosnia–Herzegovina’, (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. 75–76; Fifth Annual Report of the ICTY, UN
Doc. A/53/219-S/1998/737, annex, paras. 128–129; Sixth Annual Report of the ICTY,
UN Doc. A/54/187-S/1999/846, annex, paras. 135–137; Seventh Annual Report of the
ICTY, UN Doc. A/55/273-S/2000/777, annex, paras. 187–189; Eighth Annual Report of
the ICTY, UN Doc. A/56/352-S/2001/865, annex, paras. 201–204; Ninth Annual Report
of the ICTY, UN Doc. A/57/379-S/2002/985, annex, paras. 233–235; Tenth Annual
Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, paras. 252–253; Eleventh
Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, paras. 286–290.
25
Eleventh Annual Report of the ICTY, UN Doc. A/59/215-S/2004/627, annex, para. 288.
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 129
Article 1 of the ICTY Statute establishes jurisdiction for the Tribunal over
violations committed ‘in the territory of the former Yugoslavia’. When the
Tribunal was established, in May 1993, the disintegration of Yugoslavia was
almost complete. What had once been a large federal State, created from the
remnants of the Austro-Hungarian Empire in 1919, had been fractured into
five component units: Slovenia, Croatia, Bosnia and Herzegovina, Macedonia,
and Serbia and Montenegro. The Statute applies to the territory known as
Yugoslavia (more completely, the Socialist Federal Republic of Yugoslavia) as
it existed on 1 January 1991.
26
Article 1 of the ICTR Statute gives the Tribunal
jurisdiction over crimes committed ‘in the territory of Rwanda’. Article 1 of
the SCSL Statute gives the Court jurisdiction over crimes committed ‘in the
territory of Sierra Leone’.
The ICTR Statute also authorises the ICTR to prosecute crimes ‘committed
in the territory of neighbouring States’ to the extent that they are committed
by ‘Rwandan citizens responsible for such violations’. This aspect of the
Tribunal’s territorial jurisdiction has not yet proved relevant in any 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 Rwanda’s 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 Rwanda’s borders.
28
During the drafting of the ICTR Statute, Uganda expressed concern that ‘its
judicial system has primary and supreme jurisdiction and competence over
any crimes committed on Ugandan territory by its citizens or non-citizens, at
any particular time’. Uganda said it would accept language in the draft statute
limiting the jurisdiction and competence of the proposed tribunal to Rwandan
territory ‘and the territory of those member States which expressly declare
acceptance of such jurisdiction’.
29
Zaire also had objections on this point, but
26
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´ d’aVaires a.i. of the Permanent Mission
of Uganda to the United Nations addressed to the President of the Security Council’, UN
Doc. S/1994/1230.
130 J U R I S D I C T I O N
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 inflicted 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
firearm in one country, where the bullet crosses an international border
and kills or wounds somebody in a neighbouring country. In this scenario, a
crime occurred in both countries, even though no material act was actually
perpetrated by the oVender within the country where the victim was situated.
The issue of ‘eVects’ jurisdiction might arise if ever the investigation
concerning NATO military activity during the 1999 war were to be pursued.
Acts and omissions were committed, decisions taken and orders issued in
neighbouring Italy, from where bombing missions were deployed, and also
even further afield, at NATO headquarters in Belgium and, undoubtedly, at
military command locations in the United Kingdom and the United States.
Were an order to be given (or even, pursuant to the principle of superior
responsibility, were an order not to be given) in Washington to commit a war
crime in Belgrade, the ICTY is authorised by article 1 of its Statute to exercise
jurisdiction because such an act (or omission) would produce eVects on the
territory of the former Yugoslavia.
32
30
‘Letter dated 7 November 1994 from the Charge´ d’aVaires a.i. of the Permanent Mission
of Zaire to the United Nations addressed to the President of the Security Council’, UN
Doc. S/1994/1267.
31
ICTY Statute, art. 8; ICTR Statute, art. 7.
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.
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 131
The ICTY and ICTR have found an implied exception to the territorial
jurisdictional limitations in their statutes in the case of crimes committed
against the tribunals themselves. For example, an oVence of contempt of
court or of perjury might be committed at the seat of the Tribunal, in the
Netherlands, or for that matter in any other State. There have been several
prosecutions for such oVences committed elsewhere than on the territory of
the former Yugoslavia, of Rwanda or of its neighbouring States. There do not
appear to have been any objections to what seems rather clearly to breach the
text of article 1 of the ICTY and ICTR statutes. This problem does not
present itself with respect to the SCSL, because the seat of the Court is at
Freetown, the capital of Sierra Leone.
Although they have not led to any significant litigation, the territorial
limitations in the statutes of the ad hoc tribunals help to highlight some of
the lingering tensions in international criminal justice. The issue of territorial
jurisdiction was somewhat contentious during the drafting of the Rome
Statute of the International Criminal Court. Although the United States never
raised the matter in the Security Council or elsewhere when the statutes of the
ad hoc tribunals were being prepared, it has frequently argued that there are
legal impediments to an international criminal tribunal exercising territorial
jurisdiction over nationals of non-Party States.
33
The problem does not arise
directly with respect to the ICTY and ICTR, because they are not created by
treaty.
Many States have enacted implementing legislation in order to ensure
compliance with orders from the tribunals and to establish the principle of
primacy over national courts. For example, section 14 of the Sierra Leone
implementing act says: ‘Where, pursuant to Article 8 of the Statute of the
Special Court, the Attorney-General receives any request for deferral or 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 (Ratification) Act 2002, Supplement to the Sierra Leone
Gazette, vol. CXXX, No. II, 7 March 2002.
132 J U R I S D I C T I O N
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 fix a date for the end of the ICTY’s temporal jurisdiction.
38
It seems
quite possible that the Security Council will close down the ICTY without ever
setting the end-date of its temporal jurisdiction.
Ethnic conflict had erupted in the Krajina, between ethnic Serbs and
Croats, even before Slovenia and Croatia indicated their intent to secede from
the Federation on 25 June 1991. The first ‘war’, in Slovenia in July 1991, was
little more than a skirmish, and there have been no related prosecutions at the
ICTY, nor even serious allegations of atrocities. Fighting in Croatia later that
year took on brutal proportions, as Yugoslav Federal military units moved to
occupy parts of Croatian territory. They undertook a vicious siege of Vukovar,
a town which bordered on Serbian territory.
39
In November 1991, Serb forces
allegedly summarily executed 250 wounded patients, hospital staV, soldiers
who had been defending the city of Vukovar, Croatian political activists and
other civilians.
40
The following month, Yugoslav military units bombarded
the historic Croatian city of Dubrovnik.
41
The conflict between Serbia and
Croatia ended in January 1992, and the latter soon received general 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 flawed 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 ceasefire was dismissed: Boskoski et al. (IT-04–82–PT), Decision on
Johan Tarculovski’s 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
Milosˇevic´ has been charged with atrocities beginning 1 August 1991. See Milos ˇevic ´ 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.
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 133
It might be argued that the Security Council should not have given the
Tribunal jurisdiction over oVences predating its own recognition that there
was a threat to the peace. The first Security Council Resolution to invoke
Chapter VII of the Charter was adopted on 25 September 1991. It imposed an
embargo on deliveries of weapons and military equipment.
42
When the
ICTY was being created, France took the position that the Tribunal should
not be given jurisdiction over ‘crimes predating the dissolution of the former
Yugoslavia and the outbreak of the current conflicts’ because Chapter VII of
the Charter only authorised the establishment of a body for the purpose of
maintaining or restoring peace, ‘not in order to punish earlier crimes’.
43
The ICTR is the only one of the three tribunals where the Statute defines
the end of its temporal jurisdiction. Article 7 states: ‘The temporal 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 Statute’s adoption, there was some disagreement about the scope of
temporal jurisdiction, focusing on the starting date, not the ending date. The
Rwandan government considered the time frame to be too narrow, arguing
that jurisdiction begin on 1 October 1990, the date when the civil war broke
out following the invasion of northern Rwanda by the Rwandese Patriotic
Army. According to Rwanda, ‘the genocide the world witnessed in April
1994 was the result of a long period of planning during which pilot projects
for extermination were successfully tested’. It said that an international
tribunal ‘which refuses to consider the causes of the genocide in Rwanda
and its planning . . . cannot be of any use . . . because it will not contribute to
eradicating the culture of impunity or creating a climate conducive to
national reconciliation’.
44
Kenyan President Daniel Arap Moi also issued a
statement urging that the terms of reference of the tribunal be widened to
include investigations into responsibility for the downing of the aircraft in
April, and into responsibility ‘for the invasion of Rwanda prior to the
assassination of the two presidents’. Moi said that if these aspects were not
addressed, he could not see ‘how Rwandese who feel aggrieved by the
invasion of their own country could possibly trust the Tribunal’.
45
Most of
the Security Council members were of the view that jurisdiction of
the Tribunal would only be justified from 8 April 1994, when the plane
crash that killed President Habyarimana brought an end to what was really a
42
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.
134 J U R I S D I C T I O N
fragile ceasefire. A compromise was reached, whereby the Tribunal had
jurisdiction from 1 January 1994, ‘in order to capture the planning stage
of the crimes’.
46
Like the Rwandan civil war, the conflict in Sierra Leone started with a rebel
incursion on the frontier, and it would have seemed logical for the jurisdiction
of the Tribunal to begin on that date, 23 March 1991. Over the objections of
the Government of Sierra Leone, which considered 1991 to be the appropriate
starting point for the Court’s jurisdiction,
47
the Secretary-General proposed
that the jurisdiction begin on 30 November 1996, the date of an unsuccessful
peace known as the Abidjan Agreement. In his report on the draft statute, the
Secretary-General explained that this was the better option, so as not to
impose a ‘heavy burden’ on the Court.
48
The explanation given by the United
Nations for limiting the jurisdiction is not very convincing. Moreover, the
practice of the Tribunal shows that whatever the temporal jurisdiction, it
seems necessary to consider evidence about the background of the conflict
and the events prior to 30 November 1996 in order to provide context for the
specific charges in the various indictments. Perhaps the real explanation for
the strange position taken by the Secretary-General is the discomfort of his
own lawyers with their possible involvement in pre-Abidjan prosecutions
because they did not object to the amnesty provisions included in that peace
agreement, in contrast with the position taken two and a half years later at
Lome´.
49
All three tribunals have heard extensive evidence about acts committed
prior to the starting point of their temporal jurisdiction. It seems impossible
for either prosecution or defence to make a proper case, given the nature of
the charges and the significance of context and historical background, without
addressing events that took place prior to the relevant date. Some indictments
have referred to alleged crimes committed by an accused person prior to the
starting point of the tribunal’s jurisdiction. Defence lawyers have contested
46
‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolu-
tion 955 (1994)’, UN Doc. S/1995/134, para. 14. These words were referred to by two
judges of the Appeals Chamber as justification for considering pre-1994 events in certain
cases. See: Ngeze et al. (ICTR-96-11-AR72), Joint Separate Opinion of Judge Lal Chand
Vohrah and Judge Rafael Nieto-Navia, 5 September 2000, para. 14. Also: Nahimana et al.
(ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 102.
47
‘Eleventh Report of the Secretary-General on the United Nations Mission in Sierra
Leone’, UN Doc. S/2001/857, para. 48.
48
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915, para. 26.
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-General’s
special envoy, Berhanu Dinka, had signed the Abidjan Agreement of 30 November 1996,
without comment or objection to article 14, which granted an amnesty to combatants.
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 135
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 accused’s alleged conduct in relation to the Rwandan
genocide of 1994’ and that there ‘may be subsidiary or interrelated allegations
to the principal allegation in issue and thus may have probative or evidentiary
value’.
51
Judge Shahabuddeen, in a separate opinion, said evidence of events
prior to the starting point of the Tribunal’s temporal jurisdiction could also
provide a basis from which to draw inferences concerning intent, and to
establish a ‘pattern, design or systematic course of conduct by the accused’.
52
It was in this sense that the Nuremberg Tribunal considered pre-war 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 conflict because of the definitions of these crimes. But as other
judges have cautioned: ‘The essential point to be noted is that this Tribunal
has a restricted and clearly defined temporal jurisdiction. This applies without
exception to all crimes charged including inchoate or continuing crimes.’
53
The admissibility of evidence of facts that occurred prior to the start of the
temporal jurisdiction of the tribunals is really nothing more than a specific
manifestation of a general rule by which evidence of matters not charged in
the indictment, including ‘background issues’, can be used to prove an issue
relevant to the charges such as motive, opportunity, intent, preparation, plan
or knowledge.
54
50
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 Prosecutor’s Request for Leave to Amend
the Indictment, 5 November 1999, para. 3, and Nahimana (ICTR-96-11-T), Decision on
the Prosecutor’s Request for Leave to File an Amended Indictment, 5 November 1999,
para. 28).
52
Ngeze et al. (ICTR-96-11-AR72), Separate Opinion of Judge Shahabuddeen, 5 Septem-
ber 2000, para. 20. Judge Shahabuddeen’s views are cited by an ICTY Trial Chamber:
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 101.
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 ˇkic ´ et al.
(IT-95-16-A), Appeal Judgment, 23 October 2001, para. 321; Strugar (IT-01-42-T),
Decision on the Defence Objection to the Prosecution’s Opening Statement Concerning
Admissibility of Evidence, 22 January 2004.
136 J U R I S D I C T I O N
DiYculties present themselves with respect to what are sometimes called
‘continuing crimes’. An example would be the crime of conspiracy to commit
genocide, which is an inchoate crime, and can be committed even if genocide
itself does not result. The mere agreement of two or more people to commit
genocide is a punishable act under the statutes of the ICTY and ICTR.
55
As
long as indications exist that an agreement reached prior to the starting date
of the Tribunal’s jurisdiction continued after that date, it can be argued that
the crime was committed within the temporal jurisdiction. Obviously, 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 Prosecutor’s 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 ICTR’s 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, 27–28; Prosecutor v. Kabiligi et al. (ICTR-96-34-I),
Decision on the Defence Motions Objecting to a Lack of Jurisdiction and Seeking to
Declare the Indictment Void ab initio, 13 April 2000, paras. 33, 38–39.
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. 27–28.
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. 7–9.
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 137
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 fled 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 flagrant violations of
international humanitarian law’, and the same idea was expressed in the
long name of the institution: ‘the International Criminal Tribunal for the
Prosecution of Persons Responsible for Genocide and Other Serious 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
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 103.
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 Mugesera’s 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’.
138 J U R I S D I C T I O N
January 1994 and 31 December 1994’. The Statute of the Special Court for Sierra
Leone somewhat refined this concept, establishing jurisdiction over ‘those
who bear the greatest responsibility’ for serious violations of international
humanitarian law.
Corporate bodies
The reference to ‘persons’ reappears in the introductory paragraph or chapeau
of each provision defining a crime within the jurisdiction of the three tribu-
nals. Moreover, the general provision defining the forms of criminal partici-
pation speaks of ‘[a] person who planned, instigated, ordered, committed or
otherwise aided and abetted’.
63
Of more significance is a provision entitled
‘Personal Jurisdiction’ that appears in the 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 reflects a specific interest in
corporate liability within the Sierra Leone conflict
65
or, alternatively, a more
general growing concern with financial actors in armed conflicts.
66
Absent the
specific reference to ‘natural persons’, it seems reasonable to presume that the
SCSL could in fact prosecute corporate entities, such as a transnational
corporation. Despite this possibility, SCSL prosecutions have been confined
to natural persons. Corporate bodies and legal persons were excluded from
the Rome Statute, essentially for practical reasons, because some domestic
justice systems do not provided for criminal prosecution of corporate bodies
or legal persons. This would have created an asymmetric situation, where the
principle of complementarity would only apply to prosecutions in States with
criminal jurisdiction over corporations.
67
63
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. 3–4.
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:
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 139
Juvenile oVenders
Neither the ICTY nor the ICTR statutes contain any provision concerning a
minimum age for prosecution before the tribunals. Most of the indictees
before the two tribunals have been middle-aged men, and there do not appear
to have been any prosecutions of individuals who were even near the age of
eighteen at the time of the commission of the oVence.
68
On this point, article
7 of the SCSL Statute declares that the Special Court shall have no jurisdiction
over any person who was under the age of fifteen at the time of the alleged
commission of the crime. In fact, there have been no attempts at prosecution
before the three tribunals of any person under the age of eighteen.
The International Criminal Court sets eighteen as the cut-oV.
69
This was
not because of any agreement that persons younger than that age were not
capable of committing heinous crimes. All national legal systems are required
to set a minimum age for criminal responsibility, in accordance with article
40(3)(a) of the Convention on the Rights of the Child, but this varies con-
siderably from one jurisdiction to another, and the vast majority would set it
lower than eighteen. The ICC’s solution was, once again, driven largely by
practical concerns, including the requirement that if prosecution of juvenile
oVenders were to be considered, an elaborate juvenile justice system with
many specific features would need to be developed.
Similar concerns are reflected in article 6 of the SCSL Statute. It says that
persons between fifteen and eighteen years of age at the time of the alleged
commission of the crime ‘shall be treated with dignity and a sense of worth,
taking into account his or her young age and the desirability of promoting his
or her rehabilitation, reintegration into and assumption of a constructive role
in society, and in accordance with international human rights standards, in
particular the rights of the child’. Furthermore, ‘[i]n the disposition of a case
against a juvenile oVender, the Special Court shall order any of the following:
care guidance and supervision orders, community service orders, counselling,
foster care, correctional, educational and vocational training programmes,
approved schools and, as appropriate, any programmes of disarmament,
demobilization and reintegration or programmes of child protection agencies’.
Kluwer Law International, 1999, pp. 189–216, at p. 199; Kai Ambos, ‘General Principles
of Criminal Law in the Rome Statute’, (1999) 10 Criminal Law Forum 1, at p. 7; Andrew
Clapham, ‘The Question of Jurisdiction Under International Criminal Law Over Legal
Persons: Lessons from the Rome Conference on an International Criminal Court’, in:
M. Kamminga and S. Zia-Ziarifi, eds., Liability of Multinational Corporations under
International Law, Leiden: Martinus NijhoV Publishers, 2001, pp. 139–195.
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
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 26.
140 J U R I S D I C T I O N
The possibility of prosecuting juvenile oVenders was the subject of some
controversy during the drafting of the SCSL Statute.
70
One of the appalling
features of the Sierra Leone conflict was the participation of so-called ‘child
soldiers’.
71
The Secretary-General’s report said prosecution of children pre-
sented ‘a diYcult moral dilemma’. Noting the reports of widespread participa-
tion of child combatants in the conflict, he said: ‘Though feared by many for
their brutality, most if not all of these children have been subjected to a
process of psychological and physical abuse and duress which has transformed
them from victims into perpetrators.’
72
It appears that it was the Government
of Sierra Leone that pushed for jurisdiction over juvenile oVenders (‘It was
said that the people of Sierra Leone would not look kindly upon a court which
failed to bring to justice children who committed crimes of that nature and
spared them the judicial process of accountability’
73
), and that representatives
of the various international human rights non-governmental organisations
were very much opposed to this.
With its common-law-based legal system, Sierra Leone sets the age of
criminal responsibility at seven. Although still applicable even in many devel-
oped countries, such as the United Kingdom and Ireland, the Secretary-
General proposed a compromise of fifteen years, accompanied by language
drawn from the relevant human rights instruments. The Secretary-General
had initially contemplated a rather elaborate system of juvenile justice, 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-General’s proposals do not seem designed
to be very eVective. During the discussions, the Security Council attempted to
discourage prosecution of juvenile oVenders by the Special Court: ‘[T]he
Truth and Reconciliation Commission will have a major role to play in the
case of juvenile oVenders, and the members of the Security Council encourage
the Government of Sierra Leone and the United Nations to develop suitable
institutions, including specific provisions relating to children, to this end.’
75
70
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
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915 (4 October 2000), para. 32.
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.
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 141
In its final version, much of this was eliminated.
76
But the SCSL Statute
requires that at least some of the judges have experience in juvenile justice,
77
and that ‘[i]n the prosecution of juvenile oVenders, the Prosecutor shall
ensure that the child-rehabilitation programme is not placed at risk and that,
where appropriate, resort should be had to alternative truth and reconciliation
mechanisms, to the extent of their availability’.
78
In reality, this debate was of
no real significance. The Security Council predicted it would be ‘extremely
unlikely juvenile oVenders will in fact come before the Special Court’
79
and,
indeed, shortly after his appointment, the SCSL Prosecutor declared publicly
that he would not be investigating or prosecuting juveniles.
Nationality
In addition to its territorial jurisdiction over Rwanda, the ICTR also has
jurisdiction over oVences committed in the ‘territory of neighbouring States’,
but only to the extent that these were committed by ‘Rwandan citizens’. This
ancillary jurisdiction has never formed the basis of any prosecution, and issues
relating to interpretation of the provision have therefore not arisen before the
Tribunal. Rwandan citizenship is determined by the Code of Rwandan
Nationality, adopted 28 September 1963 and subsequently amended. Many
of the participants in the conflict in 1994 may not have been citizens of
Rwanda, given that they were born and raised abroad, as refugees, and may
in some cases have taken another nationality.
80
The other two statutes make no reference to nationality as a basis of
jurisdiction. When in 1999 the Prosecutor indicated her intent to investigate
NATO military personnel with respect to alleged war crimes committed
during the bombing of Yugoslavia, some American legislators expressed
surprise, and indeed challenged the idea that the Tribunal might be in a
position to prosecute nationals of the United States.
81
However, there is no
such restriction on the jurisdiction of the ICTY, if the alleged oVence has a
territorial nexus with the former Yugoslavia.
82
76
‘Letter dated 31 January 2001 from the President of the Security Council addressed to
the Secretary-General’, UN Doc. S/2001/95, paras. 7–9.
77
SCSL Statute, art. 13(2). See also, art. 15(4), with respect to appointment of prosecution
staV.
78
SCSL Statute, art. 15(5).
79
‘Letter dated 31 January 2001 from the President of the Security Council addressed to
the Secretary-General’, UN Doc. S/2001/95, p. 1.
80
Mariann Meier Wang, ‘The International Tribunal for Rwanda: Opportunities for
Clarification, Opportunities for Impact’, (1995) 27 Columbia Human Rights Law Review
177, at p. 196.
81
Richard J. Goldstone, ‘International Jurisdiction and Prosecutorial Crimes’, (1999) 47
Cleveland State Law Review 473, at pp. 479–480.
82
Colangelo, ‘Manipulating International Criminal Procedure’.
142 J U R I S D I C T I O N
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 conflict 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 first response to the Secretary-
General’s draft, the Security Council said it was ‘the responsibility of Member
States who have sent peacekeepers to Sierra Leone to investigate and prosecute
any crimes they may have allegedly committed. Given the circumstances of the
situation in Sierra Leone, the Special Court would have jurisdiction over those
crimes only if the Security Council considers that the Member State is not
discharging that responsibility.’
84
In subsequent correspondence with the
Security Council in early 2001, the Secretary-General noted that the limitation
of the jurisdiction of the Court to ‘those who bear the greatest responsibility’
would have to be ‘reconciled with an eventual prosecution of juveniles and
members of a peacekeeping operation, even if such prosecutions are unlikely’,
and proposed a revised text of article 1.
85
This included the following: ‘In the
83
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915 (4 October 2000).
84
‘Letter dated 22 December 2000 from the President of the Security Council addressed to
the Secretary-General’, UN Doc. S/2000/1234, p. 1.
85
‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of
the Security Council’, UN Doc. S/2001/40, para. 2.
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 143
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 confirmed its agreement that it
was ‘appropriate . . . for the President of the Special Court to be empowered in
the manner suggested in the proposed reformulation of article 1(c) of the
draft Statute of the Court’.
87
But this proposal does not appear in the final
version of the Statute, and there is no explanation in the public record for its
omission.
The eventual solution to the issue requires the approval of the Security
Council before prosecution of a peacekeeper can be undertaken. The language
is familiar, and echoes the so-called complementarity provision found in
article 17 of the Rome Statute of the International Criminal Court. Never-
theless, unlike the situation that prevails at the ICC, it is not for the Court to
determine whether the sending State is deficient in bringing perpetrators to
justice; this determination resides solely with the Security Council itself. It
constitutes the only formal recognition of a role for the Security Council in
the activities of the Special Court. It might be argued that this provision is
unnecessary, and that the Council has such powers even absent recognition in
the Statute. When he proposed the text of paragraphs 2 and 3, the 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 reflects the influ-
ence of the United States, which has been especially concerned with this.
86
Ibid., para. 5.
87
‘Letter dated 31 January 2001 from the President of the Security Council addressed to
the Secretary-General’, UN Doc. S/2001/95.
88
‘Letter dated 12 January 2001 from the Secretary-General addressed to the President of
the Security Council’, UN Doc. S/2001/40, para. 4.
89
UN Doc. S/RES/1422 (2002), UN Doc. S/RES/1487 (2003), UN Doc. S/RES/1497
(2003).
144 J U R I S D I C T I O N
Seniority
The Charter of the Nuremberg Tribunal defined personal jurisdiction over
‘major war criminals of the European Axis’,
90
and it has long been debated
whether all of the accused actually fulfilled this criterion. No such limitation
appeared in the statutes of the ICTY and ICTR, the matter of the importance
of oVenders being initially left entirely to the discretion of the Prosecutor. The
first trials at the ICTY were confined to relatively insignificant personalities,
and this raised concerns in the international community that such extensive
resources were being devoted to trials that were not in reality of great
importance, at least in terms of the persons who were tried. It was no doubt
in an attempt to alter this situation that a jurisdictional limitation was
introduced into the SCSL Statute. The Court is empowered to prosecute
‘persons who bear the greatest responsibility for serious violations of 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
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, annex, art. 1.
91
SCSL Statute, art. 1.
92
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915, paras. 29–30.
93
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
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 Secretary-General’, UN Doc. S/2000/1234, p. 1.
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 145
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 satisfied that there is ‘suYcient information to provide reasonable
grounds for believing that the Accused is a person who bears the greatest
responsibility’.
96
The Trial Chamber referred to the drafting history of the
Statute, and appeared to rely on the views of the Security Council to the eVect
that the leadership role, rather than the severity of the crime or its massive
scale, should determine jurisdiction.
97
The Trial Chamber noted that while
this issue could be raised at the preliminary stage, in terms of the suYciency of
the allegations in the indictment, whether or not an accused person actually
fulfilled the criterion of article 1 was an evidentiary matter to be determined
during the trial.
98
This leaves open the very real possibility that at the con-
clusion of the prosecution case, the accused will file motions arguing that a
prima facie case was not made out because it had not been demonstrated that
the accused was ‘a person who bears the greatest responsibility’. The 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
reflected in NGO materials as well as United Nations reports. Obviously, it
would be improper for the United Nations to establish a tribunal that identi-
fied the political aYliation of those targeted for prosecution, especially in a
civil war,
99
and the Report of the Secretary-General did not even respond to
this suggestion from the Government of Sierra Leone. The Prosecutor has
indicted participants from all of the major parties to the conflict, including
those associated with the President himself.
100
95
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 Leone’s Truth and Reconciliation Commission concluded that all factions in the
conflict, including those aligned with the Government, committed attacks directed
146 J U R I S D I C T I O N
Although the ICTR has no express jurisdictional limitation with respect to
the level of responsibility of oVenders it may prosecute, it can be argued that
there is a definite signal within the Statute and the travaux pre´paratoires that it
should focus on acts of genocide, and this is in fact what it has done. The
Commission of Inquiry’s proposal was that the Tribunal be aimed primarily at
prosecuting those responsible for genocide, but the draft resolution submitted
by the United States referred to prosecution of ‘all persons’ who have violated
‘international humanitarian law’. Even at the time, it was clear that the
broader language would also authorise prosecution of members of the 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 Zealand’s representative, Colin Keating, noted that ‘the focus of the
jurisdiction of the Tribunal is not on war crimes, but on genocide, as Rwanda
had requested’.
102
In December 1995, Prosecutor Goldstone indicated that the
‘essential objective’ of his oYce was ‘to bring to justice those most responsible
both at the national and local level for the mass killings that took place in
Rwanda in 1994’.
103
That the Prosecutor has chosen to address acts of 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 conflicts in the region. It was established to deal
with the most significant act of genocide of the second half of the twentieth
century, and it is entirely appropriate that the Prosecutor has oriented 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 ICTY’s 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
Raymond Bonner, ‘UN Commission Recommends Rwanda “Genocide” Tribunal’, New
York Times, 29 September 1994, p. 13.
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
UN Doc. S/RES/1329 (2000), preamble.
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 147
international public order’.
105
This was an odd formulation, because it
applies to all of the crimes within the subject matter of the Tribunal.
A subsequent version of the Strategy referred to ‘trying the most senior
oVenders of crimes which most seriously violate international public
order’.
106
The Security Council confirmed its agreement with the Strategy,
107
insisting that both tribunals, ‘in reviewing and confirming any new 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
filter all proposed indictments from the Prosecutor in order to ensure that
they concern ‘one or more of the most senior leaders suspected of being
most responsible for crimes within the jurisdiction of the Tribunal’.
109
Moreover, another amendment authorises the President to appoint a
‘Referral Bench’ of three judges with the mandate to refer a case to national
courts, taking into account ‘the gravity of the crimes charged and the level of
responsibility of the accused’.
110
Jurisdiction over property
The statutes do not give the tribunals any jurisdiction with respect to 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
Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 4.
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.
148 J U R I S D I C T I O N
provision, an order was issued freezing the assets of Slobodan Milosˇevic´.
112
There is nothing in the public record to indicate whether any action was taken
as a result. Presumably the Tribunal would have boasted of its success in the
Annual Report if the freezing order was responsible for any practical con-
sequences. Moreover, Milosˇevic´ and his family would surely have undertaken
litigation before national courts to challenge this exercise of jurisdiction over
property. There is at the very least an arguable case that such action by the
Tribunal goes well beyond its authority under the Statute.
The RPE allow the Prosecutor, in case of urgency, to request a State ‘to seise
physical evidence’ and ‘to take all necessary measures to prevent the escape of a
suspect or an accused, injury to or intimidation of a victim or witness, or the
destruction of evidence’. Invoking this provision, the ICTR Prosecutor
requested French justice authorities to freeze bank accounts of Fe´licien Kabuga
and his family, and to seize a number of related documents. The French
authorities complied. When more than a year later the Kabuga family took
proceedings before the ICTR President to lift the measures, they were told they
had no locus standi before the Tribunal. The Appeals Chamber reversed the
President’s decision, holding ‘that a decision of a non-judicial body which
aVects the liberty of individuals or their property should be subject to judicial
review’. The matter was remitted to a Trial Chamber for further action.
113
In rendering a guilty verdict, Trial Chambers are authorised by the RPE to
order restitution of property that was taken unlawfully in association with the
crime in question, as well as proceeds of the property.
114
The SCSL RPE call
this ‘forfeiture’, and specify that a judgment may order ‘forfeiture of the
property, proceeds and any assets it finds has been acquired unlawfully or
by criminal conduct’.
115
In Musema, an ICTR Trial Chamber said that it could
only make a restitution order if the indictment contained a charge of unlawful
taking of property.
116
There is no trace of these provisions actually being
applied.
117
Were this to occur, challenges based on jurisdiction would be likely.
After all, these are criminal courts, not civil tribunals. They have neither the
time, the resources nor the expertise to deal properly with property matters.
112
Milos ˇevic ´ 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
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.
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. 10–11.
117
E.g., Bagosora et al. (ICTR-98-41-T), Decision on Amicus Curiae Request by the
Rwandan Government, 13 October 2004.
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 149
Furthermore, with rare exceptions, the defendants are declared indigent and
benefit from funded counsel.
The RPE contain a provision entitled ‘Compensation to Victims’ that
requires the Registrar to transmit a judgment finding an accused guilty of a
crime that has caused injury to a victim to ‘the competent authorities of the
States concerned’. Moreover, ‘[p]ursuant to the relevant national legislation, a
victim or persons claiming through the victim may bring an action in a
national court or other competent body to obtain compensation’. The RPE
also state that for the purposes of such a claim, ‘the judgment of the Tribunal
shall be final and binding as to the criminal responsibility of the convicted
person for such injury’.
118
It does not appear that any claims by victims have
in fact been made based upon this provision.
119
In 2000, the ICTY judges
themselves considered the eVectiveness of the Rule, saying it appeared ‘unli-
kely to produce substantial results in the near future’.
120
The issue of compensation for victims was apparently first raised by the
ICTR Prosecutor. The ICTR Registrar had also taken some concrete initiatives
at the time with respect to victims in Taba township, where Jean-Paul Akayesu
had been the bourgmestre. These measures included some form of monetary
assistance for victims, but the Tribunal quickly realised that this went beyond
its authority and that an amendment to the Statute was required if a role in
compensation was to be developed.
121
The ICTY Registry’s legal service was
asked to prepare a detailed study of the issue. The report concluded that
victims of crimes under the jurisdiction of the tribunals were entitled to claim
compensation for their pain and suVering. The judges endorsed this 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’.
150 J U R I S D I C T I O N
5
Subject-matter jurisdiction generally
The subject-matter jurisdiction (or jurisdiction ratione materiae) consists of
the crimes that the tribunals are authorised to prosecute. The ICTY has four
such provisions, entitled: Grave breaches of the Geneva Conventions of 1949
(art. 2), Violations of the laws or customs of war (art. 3), Genocide (art. 4)
and Crimes against humanity (art. 5). The ICTR has three provisions, entitled:
Genocide (art. 2), Crimes against humanity (art. 3) and Violations of article 3
common to the Geneva Conventions and of Additional Protocol II (art. 4).
The SCSL has four provisions, entitled: Crimes against humanity (art. 2),
Violations of article 3 common to the Geneva Conventions and of Additional
Protocol II (art. 3), Other serious violations of international humanitarian law
(art. 4) and Crimes under Sierra Leonean law (art. 5).
Two categories of crimes are common to the three statutes, crimes against
humanity and ‘war crimes’. While each of the statutes has a provision entitled
‘crimes against humanity’, the actual definition diVers from one instrument to
the other. Each also contains provisions that fit broadly within the generic
category of war crimes, although they are titled and defined somewhat
diVerently in the three statutes. The ICTY and ICTR statutes contain a
provision concerning genocide, but this category of crime is omitted in the
Statute of the SCSL. Judges at the ad hoc tribunals have sometimes described
the subject-matter jurisdiction of the courts as encompassing ‘universally
condemned oVences’.
1
Indeed, the judges have capitalised the three words,
suggesting that they may be attempting to coin a new term subsuming
genocide, crimes against humanity and war crimes. Citing Judge Rosalyn
Higgins of the International Court of Justice, the Appeals Chamber has said
that ‘Universally Condemned OVences are a matter of concern to the 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 Tribunal’s 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
SCSL Statute, art. 5.
4
ICTY RPE, Rule 77; ICTR RPE, Rule 77; SCSL RPE, Rule 77.
5
ICTY RPE, Rule 91; ICTR RPE, Rule 91; SCSL RPE, Rule 91.
6
Tadic ´ (IT-94-1-AR77), Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 January 2000, para. 13.
7
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, paras. 140–141.
152 J U R I S D I C T I O N
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 conflict to encompass serious crimes under international law
aimed at the protection of fundamental human rights. Yet it is of interest that
the only reference to international humanitarian law in the Rome Statute is in
a provision dealing with qualifications of judges.
8
Certainly it seems clear
enough that the Security Council intended the ICTR to have jurisdiction over
periods in 1994 when there was clearly no armed conflict. As for the SCSL, it is
specifically mandated to prosecute individuals who may ‘have threatened the
establishment of and implementation of the peace process in Sierra Leone’,
9
which also implies crimes that are not committed in time of armed conflict.
On other occasions, the tribunals have noted that subject-matter 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 conflict’.
9
SCSL Statute, art. 1(1).
10
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 57.
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 defining ‘international
crimes’. The first of these included piracy, traYcking in persons (once called
‘white slavery’), and trade in drugs and obscene materials. The consequence of
their recognition as international crimes was an acknowledgement of 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
pirate’s operations is the high seas, which is not the right or duty of any nation
to police, he is denied the protection of the flag which he may carry, and is
treated as an outlaw, as the enemy of all mankind – hostis humani generis –
whom any nation may in the interest of all capture and punish.’
13
If there is a
common denominator, it resides more in the international nature of the
crime. Such oVences were often committed on the high seas, on territory
belonging to no State in particular. Defining them as ‘international crimes’
helped to justify States exercising jurisdiction when they would not normally
do so, and also to promote international cooperation in the repression of such
oVences.
The drive to recognise that genocide, crimes against humanity and war
crimes were also international crimes had a somewhat diVerent basis, however,
and this was far less easy to achieve. The original draft resolution on
genocide in the United Nations General Assembly, proposed in 1946, said:
‘Whereas the punishment of the very serious crime of genocide when
committed in time of peace lies within the exclusive territorial jurisdiction
of the judiciary of every State concerned, while crimes of a relatively lesser
importance such as piracy, trade in women, children, drugs, obscene pub-
lications are declared as international crimes and have been made matters
of international concern’.
14
But this clause was dropped in the final draft,
15
12
A.-G. Israel v. Eichmann, (1968) 36 ILR 277 (Supreme Court of Israel), pp. 291–293
(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).
154 J U R I S D I C T I O N
and the principle of universal jurisdiction over genocide was not admitted
in the subsequent Convention of 1948.
Since then, the idea that crimes are international because of their intrinsic
horror, rather than because their repression requires an international eVort,
has become more prominent. This approach is reflected in an important
American case: ‘The ‘‘universality principle’’ is based on the assumption that
some crimes are so universally condemned that the perpetrators are the
enemies of all people. Therefore, any nation which has custody of the perpe-
trators may punish them according to its law applicable to such oVences.’
16
But this explanation has its flaws. Crimes such as murder, rape and sexual
abuse of children are also ‘universally condemned’, yet there is no drive for
their elevation to the status of international crimes. The common 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. 60–67.
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.
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 155
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 significant for two reasons. First, most of the crimes within
the jurisdiction of the tribunals had not previously been incorporated into
national law. Rwanda, for example, while it had ratified the Genocide 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-first century, when large numbers of States
incorporated the international crimes of genocide, crimes against humanity
and war crimes into their national judicial systems in order to comply with
the provisions of the Rome Statute of the International Criminal Court, the
domestic recognition of international crimes was a very incomplete 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 State’s
territory or because it had significant eVects on that territory. More excep-
tionally, international law has also allowed States to exercise jurisdiction over
19
France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, at p. 217.
20
Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, art. 11(2).
156 J U R I S D I C T I O N
acts committed by their nationals, and over acts of which their own nationals
are victims,
21
even outside their own territory.
Defining an oVence as an ‘international crime’ authorises some form of
international jurisdiction. This may take the form either of an international
tribunal as such, or of prosecution by courts of a State that has no significant
connection with the oVence, something which is known as ‘universal 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 first 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. 353–358.
24
UN Doc. A/BUR/50.
25
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
UNTS 277.
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 157
not resolve diYculties with respect to the ad hoc tribunals because none of
them properly ‘accepted’ the jurisdiction of these institutions.
26
The third significant result of the recognition of an oVence as an 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 find any real
evidence in the practice of States to suggest that they consider themselves to
be under such obligations.
The final significant result of the classification of an act as an international
crime is a relaxation of the rules on immunities. The Charter of the 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 Court’s 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).
158 J U R I S D I C T I O N
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
Court’s Statute that takes away sovereign immunity can only be applicable to
the head of State of Sierra Leone. If, on the other hand, the Special Court for
Sierra Leone is viewed as a genuinely international tribunal similar in nature
to the other ad hoc tribunals, then it may exercise jurisdiction over ‘foreign’
heads of State without obstacle. This question was debated vigorously before
the Special Court for Sierra Leone.
29
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
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14
February 2002, para. 61. This largely overturned a somewhat more liberal ruling by the
United Kingdom’s House of Lords in the celebrated Pinochet case. In R v. Bartle and the
Commissioner of Police for the Metropolis and others, ex parte Pinochet Ugarte, [1999] 2 All
ER 97 (HL), a majority of the House of Lords said ‘[s]uch immunity is only in respect of
‘‘oYcial’’ acts performed in the exercise of his functions’. There is a gap between the two
tests, as dissenting Judge Van den Wyngaert observed: Arrest Warrant of 11 April 2000
(Democratic Republic of Congo v. Belgium), Dissenting Opinion of Judge Van den
Wyngaert, 14 February 2002, para. 36.
32
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14
February 2002, para. 61.
33
Milos ˇevic ´ (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras.
26–34; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998.
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 confirming the absence of entitlement of any person to claim of
immunity’. Consequently, ‘there is no reason to conclude that the Special
Court should be treated as anything other than an international tribunal or
court, with all that implies for the question of immunity for a serving Head of
State’.
34
The SCSL therefore rejected a challenge to jurisdiction by Charles
G. Taylor, who had been the president of neighbouring Liberia when the
indictment was issued.
34
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 41.
160 J U R I S D I C T I O N
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 conflict 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 significant manifestation of genocide since the destruction of
the European Jews during the 1940s was well underway. By the time the ICTR
was created, in November 1994, the term ‘genocide’ had been used by the
Special Rapporteur of the Commission on Human Rights,
5
the Commission
of Experts,
6
and even the Security Council itself (for the first time in its
history).
7
When the Security Council created the ICTR, in somewhat marked
1
‘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 confirmed his findings of
genocide on subsequent visits to Rwanda later the same year: UN Doc. E/CN.4/1995/12,
UN Doc. E/CN.4/1995/70.
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 flagrant violations of international humanitarian
law have been committed in Rwanda’,
8
and said the Tribunal was established
‘for the sole purpose of prosecuting persons responsible for genocide and
other serious violations of international humanitarian law’.
9
The Council
listed genocide first in its enumeration of punishable crimes in the ICTR
Statute, whereas it had placed genocide third in the ICTY Statute, after grave
breaches and violations of the laws or customs of war.
Although the SCSL Statute is modelled on that of the ICTR, the 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 identified national, ethnic,
racial or religious group with an intent to annihilate the group as such, the
Security Council did not include the crime of genocide in its 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
‘Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone’, UN Doc. S/2000/915, para. 13. Perhaps it is also of some significance that
Sierra Leone has never ratified the Convention for the Prevention and Punishment of
the Crime of Genocide.
11
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutor’s Motion to Withdraw the
Indictment, 18 March 1999.
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
162 J U R I S D I C T I O N
before the ICTY included charges of genocide. At one point, the judges
expressed their frustration, and urged the Prosecutor to include the charge
within a specific indictment.
13
The first case to come to trial led to acquittal on
charges of genocide.
14
Only in August 2001, in a case dealing with one of the
commanders involved in the 1995 Srebrenica massacre, did the Tribunal finally
convict a person of genocide.
15
It was upheld on appeal,
16
but there have been
no further convictions, and three acquittals.
17
All of these cases, some of them
adjudicated by the Appeals Chamber, have led to the first substantial body of
case law interpreting and applying the legal concept of genocide.
Raphael Lemkin coined the word ‘genocide’ in his book on Nazi 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 defines the crime of genocide and lists forms of
participation in genocide as well as inchoate or incomplete versions of the
crime, namely attempt, conspiracy and incitement.
20
These provisions have
been incorporated, with only slight technical modifications, into the statutes
of the ICTY and ICTR:
1. The International Tribunal shall have the power to prosecute persons
committing genocide as defined in paragraph 2 of this article or of
committing any of the other acts 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 ˇkic ´ (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; Brðanin (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
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
UNTS 277. On the drafting of the Genocide Convention, and its subsequent 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 inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
d. imposing measures intended to prevent births within the group;
e. forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
a. genocide;
b. conspiracy to commit genocide;
c. direct and public incitement to commit genocide;
d. attempt to commit genocide;
e. complicity in genocide.
The definition really begins with the introductory paragraph or chapeau
of paragraph 2. There are several important components of this introductory
paragraph, which is then followed by an exhaustive list of punishable acts.
One important element that appears in the 1948 Convention is not reflected
in the provisions within the Tribunal. Article 1 of the Convention says that
genocide ‘whether committed in time of peace or in time of war, is a crime
under international law’. Because the crime of genocide can be committed in
peacetime, it is not, strictly speaking, a ‘serious violation of international
humanitarian law’, despite the claim to the contrary in the preamble of the
ICTY Statute. Certainly, there are periods within the temporal jurisdictions of
both tribunals where it is doubtful that armed conflict was underway. In such
cases, the war crimes provisions would be inapplicable, but the Tribunal
would still, presumably, retain jurisdiction over the crime of genocide. There
have been no cases where this issue has arisen.
Elements of the crime of genocide
Intentional homicide can be prosecuted by the ICTY and the ICTR as a war
crime (‘wilful killing’), a crime against humanity (‘murder’) and as genocide
(‘killing’). But intentional homicide as genocide must be committed with the
specific intent to destroy in whole or in part a national, ethnical, racial or
religious group as such. The tribunals have called this genocide’s ‘special
intent’
21
or dolus specialis,
22
terms familiar to jurists in common law and
21
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, 140–143; Jelisic ´
(IT-95-10-T), Judgment, 14 December 1999, para. 86; Ntakirutimana et al. (ICTR-96-10-A
and ICTR-96-17-A), Judgment, 13 December 2004, paras. 364, 365, 495.
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:
164 J U R I S D I C T I O N
continental criminal justice systems, respectively. According to one ICTY Trial
Chamber, ‘special intent’ and dolus specialis can be used interchangeably.
23
In its commentary on the 1996 Code of Crimes against the Peace and
Security of Mankind, the International Law Commission qualified geno-
cide’s specific intent as ‘the distinguishing characteristic of this particular
crime under international law’.
24
The Sikirica Trial Chamber accused the
ICTY’s Prosecutor of unnecessarily complicating matters by introducing a
debate about theories of intent, noting that the matter should be resolved
with reference to the text of the provision:
The first rule of interpretation is to give words their ordinary meaning
where the text is clear. Here, the meaning of intent is made plain in the
chapeau to Article 4(2). Beyond saying that the very specific intent
required must be established, particularly in the light of the potential
for confusion between genocide and persecution, the Chamber does not
consider it necessary to indulge in the exercise of choosing one of the
three standards identified by the Prosecution. In the light, therefore, of
the explanation that the provision itself gives as to the specific meaning
of intent, it is unnecessary to have recourse to theories of intent.
25
Proof of intent may be inferred from the facts, the concrete circumstances,
or a pattern of purposeful action.
26
But, ‘[w]here an inference needs to be
drawn, it has to be the only reasonable inference available on the evidence’.
27
The intent of the perpetrator must be to ‘destroy’ the group. In Krstic ´, a
Trial Chamber said that ‘customary international law limits the definition of
genocide to those acts seeking the physical or biological destruction of all
or part of the group. Hence, an enterprise attacking only the cultural or
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 ˇevic ´ (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, 42–45, 50–51; 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
May–26 July 1996’, UN Doc. A/51/10, pp. 87–88. Also: ‘Report of the International Law
Commission on the Work of its Forty-seventh Session, 2 May–21 July 1995’, UN Doc. A/
50/10, p. 43, para. 79.
25
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 60.
26
Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 704. Also: Stakic ´ (IT-97-24-T),
Judgment, 31 July 2003, para. 526; Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1
June 2001, para. 159. See also Krstic ´ (IT-98-33-A), Judgment, 19 April 2004, paras. 33–34.
27
Brðanin (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 definition of genocide.’
28
In Rwanda,
there has been ample evidence that it was physical destruction of the Tutsi that
was contemplated. In the wars on the territory of the former Yugoslavia, many
of the acts that were colloquially referred to as ‘ethnic cleansing’ suggested
cultural genocide rather than physical genocide. Various judgments have
wrestled with the distinction between ethnic cleansing and genocide. In his
partially dissenting opinion in Krstic ´, Judge Shahabuddeen distinguished
between the punishable acts of genocide, which are physical and biological
in nature, and the reference to intent in the chapeau, which does not rule out
the destruction which is other than physical and biological.
29
His views were
endorsed in Blagojevic ´, where an ICTY Trial Chamber said the term ‘destroy’
in the definition of genocide could encompass the forcible transfer of a
population:
The Trial Chamber finds in this respect that the physical or biological
destruction of a group is not necessarily the death of the group members.
While killing large numbers of a group may be the most direct means of
destroying a group, other acts or series of acts, can also lead to the
destruction of the group. A group is comprised of its individuals, but also
of its history, traditions, the relationship between its members, the rela-
tionship with other groups, the relationship with the land. The Trial
Chamber finds that the physical or biological destruction of the group is
the likely outcome of a forcible transfer of the population when this
transfer is conducted in such a way that the group can no longer recon-
stitute itself – particularly when it involves the separation of its members.
In such cases the Trial Chamber finds 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 deficient, 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; Brðanin (IT-99-36-T), Judgment, 1 September 2004,
para. 694; Semanza (ICTR- 97-20-T), Judgment and Sentence, 15 May 2003, para. 315;
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 808.
29
Krstic ´ (IT-98-33-A), Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004,
paras. 45–54.
30
Blagojevic ´ (IT-02-60-T), Judgment, 17 January 2005, para. 666.
166 J U R I S D I C T I O N
the material destruction of the group. In fact, many things could lead to the
disappearance of a group. That is not the issue. Article 4 asks the tribunal to
determine whether the accused intended to destroy the group and whether this
might result from his or her acts or omissions. When the question is presented
in this manner, it should be clear that the real debate is about whether the
forced deportation of civilians leads to the conclusion that the perpetrators
intended the material destruction of the group. Absent other indications, it is
surely too much to presume this; precisely the opposite conclusion is just as
plausible, the deportation providing evidence that the perpetrator intended to
ensure the survival of the group rather than its disappearance.
In a judgment issued a few months after Krstic ´ and a few months before
Blagojevic ´, the accused was acquitted of genocide after an ICTY Trial Chamber
found there was insuYcient evidence of genocidal intent. It warned of the
danger of conflating the intent of forcible displacement with that of physical
destruction.
31
The decisions in Blagojevic ´ and Brðanin reflect the two extre-
mes on the issue in the aftermath of the Appeals Chamber ruling in Krstic ´.
The Prosecutor did not appeal the portions of the Brðanin judgment dealing
with genocide, perhaps out of fear that the Appeals Chamber might narrow the
precedent established in Krstic ´. The fact remains that on the diYcult
issue of distinguishing between forcible displacement (‘ethnic cleansing’) and
genocide, the case law remains inconsistent.
32
The Rome Statute’s detailed provision on the mental element of crimes,
including genocide, states that ‘a person shall be criminally responsible and
liable for punishment for a crime within the jurisdiction of the Court only if
the material elements are committed with intent and knowledge’. If the
punishable act involves ‘conduct’, the oVender must ‘mean . . . to engage in
the conduct’; if it involves a ‘consequence’, the oVender must either ‘mean . . .
to cause that consequence’ or be ‘aware that it will occur in the ordinary
course of events’. ‘Knowledge’, on the other hand, ‘means awareness that a
circumstance exists or a consequence will occur in the ordinary course of
events’.
33
Because the definition of genocide refers to the specific intent, the
issue of ‘knowledge’ has not attracted much judicial attention, although there
is surely an implied finding in all of the ICTR convictions for genocide that
the oVender knew the destruction of the group would occur in the ordinary
31
Brðanin (IT-99-36-T), Judgment, 1 September 2004, paras. 969–991.
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
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 30.
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 significance, 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 flawed.
35
The intent must be to destroy ‘a national, ethnical, racial or religious
group’. The overarching theme of the wars in Rwanda and the former
Yugoslavia was ethnic conflict, but both tribunals have been vexed somewhat
by categorising the victims. In its early judgments, the ICTR seemed to have
diYculty describing Rwanda’s Tutsi minority as a national, ethnical, racial
or religious group, and attempted to resolve the problem with an expansive
interpretation of the expression. It said that genocide could be committed
against any ‘stable and permanent group’, although it ultimately accepted
the qualification of the Tutsi as an ‘ethnic group’.
36
Although much heralded
in 1998 for enlarging the narrow bounds of the definition in the 1948 Con-
vention, the Akayesu Trial Chamber’s conclusion that all ‘permanent and
stable’ groups was never followed by other Trial Chambers of either of the
tribunals.
37
ICTR Trial Chambers now generally satisfy themselves by taking
judicial notice of the fact that in Rwanda in 1994 the Tutsi were recognised as
an ethnic group.
38
In Krstic ´, the Trial Chamber concluded that the victims
were members of the ‘national group’ of Bosnian Muslims.
39
The ICTY has
noted that the crime of genocide in many respects fits within the international
legal protection of national minorities, and that the concept of ‘national,
ethnic, racial or religious’ groups should be interpreted in this context.
40
This
approach indicates a quite diVerent view of the philosophical basis for the
crime of genocide than the ‘stable and permanent’ groups theory of the ICTR.
Persecution and destruction of a broader spectrum of groups, such as
34
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
Gue´nae¨l Mettraux, International Crimes and the Ad Hoc Tribunals, Oxford: Oxford
University Press, 2005, pp. 212–215.
36
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 428–429.
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
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 817.
39
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 559.
40
Ibid., paras. 555–556. Also: Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 682.
168 J U R I S D I C T I O N
political and social groups, is adequately addressed within the parameters of
crimes against humanity.
The tribunals have moved towards a subjective approach in determining
the existence and identity of the group. If the perpetrator, or the victim,
considers that the group exists, these are very compelling indicators for the
application of the crime of genocide.
41
The analysis involves a combination
of both subjective and objective factors, on a case-by-case basis. ‘This is so’,
wrote an ICTY Trial Chamber, ‘because subjective criteria alone may not be
suYcient to determine the group targeted for destruction and protected by
the Genocide Convention, for the reason that the acts identified in 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 ‘significant’, which
suggests a qualitative dimension. The ICTR, in Kayishema and Ruzindana,
said that ‘in part’ requires ‘the intention to destroy a considerable number of
individuals’.
43
An ICTY Trial Chamber said that genocide must involve the
intent to destroy a ‘substantial’ part, although not necessarily a ‘very 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 finite number of
members of a protected group might not thus qualify as genocide, despite
the high total number of casualties, because it would not show an intent
by the perpetrators to target the very existence of the group as such.
46
41
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
Brðanin (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. 56–59.
45
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 65.
46
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 590.
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 ‘significant’
part of the group, such as its religious or political elite. This rather novel
approach originated in the Commission of Experts,
47
and was adopted by the
ICTY Prosecutor in several indictments.
48
It was subsequently endorsed by
a Trial Chamber in Jelisic ´, which held that it might be possible to infer the
requisite genocidal intent from the ‘desired destruction of a more limited
number of persons selected for the impact that their disappearance would
have upon the survival of the group as such’.
49
The same scenario, involving
relatively small numbers of killings in concentration camps, returned in
Sikirica, but as in Jelisic ´, the judges could not discern any pattern in the camp
killings that suggested the intent to destroy a ‘significant part of the local
Muslim community so as to threaten its survival’. The victims were taxi
drivers, schoolteachers, lawyers, pilots, butchers and cafe´ owners but not,
apparently, community leaders. The Trial Chamber observed that ‘they do
not appear to have been persons with any special significance to their 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 ‘significant part’ of the Muslim community. This is not the same
as the ‘leadership’, although the reasoning is similar, as is the ‘decisive eVect
on the group’s survival’ criterion. The Krstic ´ judgment explains:
47
‘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
Karadzˇic ´ 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
Jelisic ´ (IT-95-10-T), Judgment, 14 December 1999, para. 82.
50
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 80.
170 J U R I S D I C T I O N
Granted, only the men of military age were systematically massacred, but
it is significant that these massacres occurred at a time when the forcible
transfer of the rest of the Bosnian Muslim population was well under way.
The Bosnian Serb forces could not have failed to know, by the time they
decided to kill all the men, that this selective destruction of the group
would have a lasting impact upon the entire group. Their death precluded
any eVective attempt by the Bosnian Muslims to recapture the territory.
Furthermore, the Bosnian Serb forces had to be aware of the catastrophic
impact that the disappearance of two or three generations of men would
have on the survival of a traditionally patriarchal society, an impact the
Chamber has previously described in detail. The Bosnian Serb forces
knew, by the time they decided to kill all of the military aged men, that
the combination of those killings with the forcible transfer of the women,
children and elderly would inevitably result in the physical disappearance
of the Bosnian Muslim population at Srebrenica.
51
The recent authorities that develop the ‘significant part’ interpretation use
the phenomenon of selective killing of certain segments of a group as evidence
of intent to destroy the group as a whole, assuming it is predicated on a
calculation that destruction of the ‘significant’ members of the group will
irrevocably compromise the existence of what remains. The same reasoning
does not apply to destruction of a ‘substantial part’, because it accepts the
possibility that the perpetrators may only intend to destroy a part of the
group. Of course, there is no reason why destruction of the leadership, that
is, of a ‘significant’ part, could not provide proof of intent to destroy a
‘substantial’ part of a particular group.
The Appeals Chamber has held that there is no need to establish a ‘plan’ to
commit genocide. This means that it is possible to establish genocide without
any evidence of State involvement, or of that of an organised State-like entity.
In Jelisic ´, the 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 specific intent, the existence of
a plan or policy may become an important factor in most cases. The evidence
may be consistent with the existence of a plan or policy, or may even show
such existence, and the existence of a plan or policy may facilitate proof of
the crime.’
53
In another case, the Appeals Chamber referred to this paragraph
in support of its conclusion not to require proof of a ‘plan or policy’ with
respect to crimes against humanity.
54
This broadening of the scope of both
51
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 595.
52
Jelisic ´ (IT-95-10-T), Judgment, 14 December 1999, para. 100.
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 specific 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 specific 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 five punishable acts of genocide. Each
one of these acts has its own mental and physical elements, which must be
proven in addition to the elements in the introductory paragraph or chapeau
for there to be a conviction. The list is an exhaustive one, and does not permit
other acts that might result in the destruction of a protected group.
Killing
In the first major genocide case before the ICTR, a Trial Chamber said the
act of killing consisted of two material elements: the victim is dead and
the death resulted from an unlawful act or omission of the accused or a
subordinate.
58
The oVender must intend this result or recklessly disregard
the likelihood death will result from such acts or omissions. In Akayesu, an
55
The International Criminal Court’s ‘Elements of Crimes’, ICC-ASP/1/3, p. 113, require
that genocide be committed ‘in the context of a manifest pattern of similar conduct’.
This text was adopted in the wake of the Jelisic ´ Trial Chamber decision and was probably
a reaction to it.
56
Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 53. Citing: William
A. Schabas, Genozid im Vo¨lkerrecht, Hamburg: Hamburger Institute, 2003, pp. 340–
341; Schabas, Genocide in International Law, pp. 254–255.
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. 101–104, another Trial
Chamber purported to discuss the actus reus of ‘killing’, but in fact addressed only the
diYculties in defining the mental element.
172 J U R I S D I C T I O N
ICTR Trial Chamber said the English term ‘killing’ was ‘too general’, and that
the ‘more precise’ French term meurtre should be applied. This reasoning was
supported with reference to the Rwandan Penal Code, as well as the canon
of interpretation by which the accused should benefit from the more 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 inflict serious bodily injury in reckless disregard
of human life’.
65
While there must be proof that a person is dead, this can be
59
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 500–501. Also: Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 50; Musema (ICTR-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
Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 151.
62
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323–324; Kordic ´ et al. (IT-95-
14/2-T), Judgment, 26 February 2001, paras. 229, 236; Blas ˇkic ´ (IT-95-14-T), Judgment, 3
March 2000, para. 153.
63
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323–324; Kordic ´ et al. (IT-95-
14/2-T), Judgment, 26 February 2001, paras. 236, 229; Blas ˇkic ´ (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
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 229.
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 defined this as ‘harm that seriously injures the health, causes
disfigurement or causes any serious injury to the external, internal organs or
senses’.
68
The Trial Chamber of the ICTY has likewise considered torture and
inhuman or degrading treatment to fall within the provision’s scope.
69
It has
been held that ‘inhuman treatment . . . and deportation are among the acts
which may cause serious bodily or mental injury’.
70
According to an ICTR Trial Chamber in Akayesu, rape and sexual violence
may constitute genocide on both a physical and a mental level.
71
In Akayesu,
the Trial Chamber aYrmed that rape and other crimes of sexual violence may
fall within the ambit of paragraph (b) of article 2(1) of the ICTR Statute:
[T]he Chamber wishes to underscore the fact that in its opinion, they
constitute genocide in the same way as any other act as long as they were
committed with the specific intent to destroy, in whole or in part, a
February 2001, paras. 229, 236; Delalic ´ et al. (IT-96-21-T), Judgment, 16 November 1998.
The same principles are aYrmed in case law concerning the crime against humanity of
murder: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 589; Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 80–81; Musema (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. 136–140; Bagilishema (ICTR-95-
1A-T), Judgment, 7 June 2001, para. 84; Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14
January 2000, para. 560; Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 485; Blas ˇkic ´
(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
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 504.
68
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 109.
69
Karadzˇic ´ et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to
Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 93.
70
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 513.
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.
174 J U R I S D I C T I O N
particular group, targeted as such. Indeed, rape and sexual violence
certainly constitute infliction of serious bodily and mental harm on the
victims and are even, according to the Chamber, one of the worst ways of
inflict[ing] harm on the victim as he or she suVers both bodily and mental
harm. In light of all the evidence before it, the Chamber is satisfied that the
acts of rape and sexual violence described above, were committed solely
against Tutsi women, many of whom were subjected to the worst public
humiliation, mutilated, and raped several times, often in public, in the
Bureau Communal premises or in other public places, and often by more
than one assailant. These rapes resulted in physical and psychological
destruction of Tutsi women, their families and their communities. Sexual
violence was an integral part of the process of destruction, specifically
targeting Tutsi women and specifically contributing to their destruction
and to the destruction of the Tutsi group as a whole. The rape of Tutsi
women was systematic and was perpetrated against all Tutsi women and
solely against them. ATutsi woman, married to a Hutu, testified before the
Chamber that she was not raped because her ethnic background was
unknown. As part of the propaganda campaign geared to mobilizing the
Hutu against the Tutsi, the Tutsi women were presented as sexual objects.
Indeed, the Chamber was told, for an example, that before being raped
and killed, Alexia, who was the wife of the Professor, Ntereye, and her two
nieces, were forced by the Interahamwe to undress and ordered to run and
do exercises ‘in order to display the thighs of Tutsi women’. The 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: ‘don’t 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 finds that in most cases, the rapes of Tutsi women
in Taba were accompanied with the intent to kill those women. Many
rapes were perpetrated near mass graves where the women were taken to
be killed. A victim testified that Tutsi women caught could be taken away
by peasants and men with the promise that they would be collected later to
be executed.
72
Causing serious bodily or mental harm to members of the group does not
necessarily mean that the harm is permanent and irremediable, but it needs to
be serious.
73
In Krstic ´, the ICTY considered the ordeal inflicted on the few who
72
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 731–733.
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 inflicting bodily or
mental harm, the Trial Chamber in eVect considered the result as a kind of
‘lesser and included’ oVence, noting this ‘was a natural and foreseeable 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 finds that the men suVered mental harm having their identifica-
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
fields covered of bodies of the Bosnian Muslim men brought to the
execution site before them and murdered. After having witnessed the
executions of relatives and friends, and in some cases suVering from
injuries themselves, they suVered the further mental anguish of lying still,
in fear, under the bodies – sometimes of relative or friends – for long
hours, listening to the sounds of the executions, of the moans of those
suVering in pain, and then of the machines as mass graves were dug.
75
The same Trial Chamber also spoke of the serious mental harm that was
done to the victims themselves, prior to their execution. Finally, it said that
‘the forced displacement of women, children, and elderly people was itself a
traumatic experience, which, in the circumstances of this case, reaches the
requisite level of causing serious mental harm under Article 4(2)(b) of the
Statute’.
76
Deliberately inflicting conditions of life calculated to destroy the group
This act of genocide corresponds closely to the crime against humanity of
extermination, where similar language has been used in the judgments.
77
It
para. 51; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 156;
Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 59; Stakic ´ (IT-97-24-T),
Judgment, 31 July 2003, para. 516; Brðanin (IT-99-36-T), Judgment, 1 September 2004,
para. 690. See also: B. Bryant and R. Jones, ‘Codification of Customary International
Law in the Genocide Convention’, (1975) 16 Harvard International Law Journal 686, at
pp. 694–695.
74
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 635.
75
Blagojevic ´ (IT-02-60-T), Judgment, 17 January 2005, para. 647.
76
Ibid., paras. 648–649.
77
See below at pp. 199–201.
176 J U R I S D I C T I O N
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 definition 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. 505–506.
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. 115–116.
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. 156–157.
81
Kovac ˇevic ´ et al. (IT-97-24-I), Indictment, 13 March 1997, paras. 12–16; Kovac ˇevic ´ et al.
(IT-97-24-I), Amended Indictment, 23 June 1998, paras. 28, 32. Also: Karadz ˇic ´ 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
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 42.
83
Karadzˇic ´ et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to
Rule 61 of the Rules of Procedure and Evidence, 11 July 1996.
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 mother’s group. Furthermore, the Chamber notes that measures
intended to prevent births within the group may be physical, but can also
be mental. For instance, rape can be a measure intended to prevent births
when the person raped refuses subsequently to procreate, in the same way
that members of a group can be led, through threats or trauma, not to
procreate.
85
This interpretation, which was inspired by the Report of the Commission
of Experts, has always seemed a little far-fetched, especially considering that
the crime of rape is more than adequately addressed under paragraph (b) as
‘causing serious bodily or mental harm’.
Forcibly transferring children
The fifth and final act of genocide listed in the relevant provisions of the
statutes, forcibly transferring children of the group to another group, has had
no application in the context of the conflicts in the former Yugoslavia and
Rwanda.
Complicity and inchoate forms of the oVence
Paragraph 3 of the genocide provision in the ICTY and ICTR statutes 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. 507–508. Also: Kayishema
et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 117; Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 53; Musema (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. 296–314.
178 J U R I S D I C T I O N
With respect to genocide, there are legal diYculties that arise in reconciling
the general provision on complicity in the statutes with the specific one
applicable to genocide only. As a Trial Chamber explained in Krstic ´,
Article 4(3) [of the ICTY Statute] provides for a broad range of heads of
criminal responsibility, including heads which are not included in Article
7(1), such as ‘conspiracy to commit genocide’ and ‘attempt to commit
genocide’. By incorporating Article 4(3) in the Statute, the drafters of the
Statute ensured that the Tribunal has jurisdiction over all forms of 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 significance of the term ‘conspiracy’ varies depending upon whether
it is being used in the common law or continental systems. Although not
apparent from the text of the provision in the statutes, or for that matter in
the Genocide Convention itself, the drafting history of the Convention is quite
clear that what is intended is conspiracy as it is meant in the common law
system.
89
This means that the Prosecutor must establish that two or more
persons agreed upon a common plan to perpetrate genocide, irrespective of
whether the crime was actually committed. Proof of the material element of
the crime will obviously be facilitated by documentary evidence. But where
this is lacking, circumstantial evidence of the common plan or conspiracy will
be suYcient. According to an ICTR Trial Chamber, ‘[t]he agreement in a
conspiracy is one that may be established by the prosecutor in no particular
manner, but the evidence must show that an agreement had indeed been
87
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 640.
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-
flicts, (1979) 1125 UNTS 3 and article 4(1) of Protocol Additional to the 1949 Geneva
Conventions and Relating to the Protection of Victims of Non-International Armed
Conflicts, (1979) 1125 UNTS 609).
89
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 185–191;
Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 423; Nahimana
et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 109.
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 unified
framework. A coalition, even an informal coalition, can constitute such
a framework so long as those acting within the coalition are aware of its
existence, their participation in it, and its role in furtherance of their
common purpose . . . Conspiracy to commit genocide can be comprised
of individuals acting in an institutional capacity as well as or even 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
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 787.
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
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1048.
94
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 937–941.
Another acquittal for conspiracy has been recorded, but because of insuYcient evidence:
Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003,
para. 801. In yet another case, charges were dismissed because the elements alleged in the
180 J U R I S D I C T I O N
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 finds its way into paragraph 3 of article 4 of
the ICTY Statute and article 2 of the ICTR Statute.
The SCSL does not have jurisdiction over the crime of genocide. There
have been no prosecutions for direct and public incitement by the ICTY, and
it does not seem that hate propaganda, at least in its crudest manifestations,
was a significant feature of the conflicts in the former Yugoslavia. The same
cannot be said for Rwanda, where grotesque caricatures in racist newspapers
and broadcast appeals to participate in killings marked the 1994 genocide.
98
According to a Trial Chamber, in Akayesu,
[t]he public element of incitement to commit genocide may be better
appreciated in light of two factors: the place where the incitement
occurred and whether or not assistance was selective or limited . . . The
‘direct’ element of incitement implies that the incitement assume a direct
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
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 793.
97
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1029.
Followed by the Supreme Court of Canada in Mugesera v. Canada (MCI), 2005 SCC 40,
para. 85.
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 specifically 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 Prosecutor’s case when all that had been shown
was that the accused told a municipal leader during an assembly at a stadium
in Gisenyi that he should reinforce roadblocks and ‘warn his Muslim friends
not to continue hiding Tutsi in their houses’.
100
Because genocide was actually committed in Rwanda, prosecution for
‘direct and public incitement’ may seem inappropriate. Those who gave
speeches or otherwise urged others to commit genocide, whether in public
or in private, are guilty of complicity, which is covered by articles 2(3)(e) and
6(1) of the ICTR Statute. For this reason, many of the rulings of the ICTR
Trial Chambers appeared to confuse the inchoate form of incitement with
incitement as complicity, and the judgments convict oVenders of ‘direct and
public incitement’ after concluding that genocide was actually committed.
101
In Nahimana, a Trial Chamber said that evidence that genocide actually
occurred would be helpful in confirming that those who incited genocide
actually intended this, and this seems only to further confuse the point.
102
The leading case on the use of hate propaganda to provoke the Rwandan
genocide is that of Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan
Ngeze, who were found guilty of both genocide and direct and public incite-
ment to commit genocide. The three were involved in various media, includ-
ing the radio station Radio-te´le´vision Libre Milles Collines (RTLM)
103
and the
racist newspaper Kangura. An example, broadcast on RTLM on 4 June 1994,
at the height of the killing, and that was cited by the Tribunal, shows how
blatant the appeals actually were:
99
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 556–557. Also Niyitegeka
(ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 431; Nahimana et al.
(ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 978.
100
Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal, 2
February 2005, para. 23.
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
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1029.
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.
182 J U R I S D I C T I O N
They should all stand up so that we kill the Inkotanyi [slang term for Tutsi]
and exterminate them . . . The reason we will exterminate them is that they
belong to one ethnic group. Look at the person’s height and his physical
appearance. Just look at his small nose and then break it.
104
The judgment provides a detailed discussion of issues relating to hate 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 significance 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 conflict between the two principles, the more
specialised provision should take precedence. But the Trial Chamber
also considered an alternative approach to interpretation, by which the two
104
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 959.
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 definition 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
significant, because as a general rule persons found guilty of complicity in
genocide are also convicted as perpetrators of genocide.
113
Because complicity
requires the existence of a principal perpetrator, two decisions focused not on
the acts of the accused so much as on the presence of genocide committed by
others. This inquiry has led to several acquittals. In eVect, the Prosecutor
failed to prove that genocide had been committed within camps in the former
Yugoslavia, with the consequence that the accused could not be convicted for
conspiracy in genocide.
114
Aiding and abetting is discussed in detail in chapter 9.
115
108
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
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 394.
110
Krstic ´ (IT-98-33-A), Judgment, 19 April 2004, para. 139.
111
Milos ˇevic ´ (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. 302–314.
184 J U R I S D I C T I O N
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 oversimplification, that the two
categories of crime are cognates can be seen from the indictment policy of
the Prosecutors and the judgments themselves. There have been no 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
crimes against humanity.
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: Defining 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; Gue´nae¨l Mettraux, International Crimes and the Ad
Hoc Tribunals, Oxford: Oxford University Press, 2005, pp. 147–192.
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 reflects this.
Prosecutions for crimes against humanity have provided the tribunals
with the opportunity to turn ‘a set of abstract concepts into a fully fledged
and well-defined body of law’.
5
Given the generality of the concept of crimes
against humanity, it is striking that the provisions in the three statutes
are all so diVerent from one another. The first of the three to be adopted,
article 5 of the ICTY Statute, is very broadly modelled on article 6(c) of the
Nuremberg Charter, which was the first codification of crimes against
humanity:
6
The International Tribunal [for the former Yugoslavia] shall have the
power to prosecute persons responsible for the following crimes when
committed in armed conflict, whether international or internal in 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
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, 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
Law’, (1994) 88 American Journal of International Law 78, at p. 84.
186 J U R I S D I C T I O N
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 conflict, whether international or internal in
character’.
Article 3 of the ICTR Statute presents an identical list of punishable acts,
but its introductory paragraph diVers slightly from article 5 of the ICTY
Statute. The word ‘directed’ is replaced with ‘as part of a widespread or
systematic attack’. Moreover, the reference to armed conflict is eliminated,
but another requirement is added, namely that the attack be committed on
‘national, political, ethnic, racial or religious grounds’.
Article 2 of the SCSL Statute makes two changes to the list of punishable
acts. To ‘rape’, a list of other gender crimes is added: ‘sexual slavery, enforced
prostitution, forced pregnancy and any other form of sexual violence’. The
paragraph on ‘persecution’ adds the word ‘ethnic’ to the other three grounds,
and replaces ‘and’ with ‘or’. Both of these changes seem inspired by the
language in article 7 of the Rome Statute. The preliminary paragraph in the
SCSL’s crimes against humanity provision is essentially the same as article 3
of the ICTR Statute, except that the reference to ‘national, political, ethnic,
racial or religious grounds’ has been deleted, in keeping with contemporary
case law.
Presence of an armed conflict
Only the ICTY Statute refers to the presence of armed conflict, stating in the
introductory paragraph to article 5 that crimes against humanity are punish-
able ‘when committed in armed conflict, whether international or internal
in character’. Without much doubt, it can be stated that the drafters of the
ICTY Statute believed that such a limitation was imposed by customary
international law, and that to prosecute crimes against humanity in the
absence of armed conflict would violate the maxim nullum crimen sine lege.
9
In Tadic ´, the Appeals Chamber said this requirement of armed conflict was
8
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-General’s report: ‘Crimes against humanity are aimed at any civilian
population and are prohibited regardless of whether they are committed in an armed
conflict, international or internal in character.’ ‘Report of the Secretary-General 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
Tribunal’s Statute and imposing the additional jurisdictional requirement
that crimes against humanity be committed in armed conflict, the Security
Council intended to limit the jurisdiction of the Tribunal to those crimes
which had some connection to armed conflict in the former Yugoslavia’.
12
This is reading a lot into the alleged intent of the Security Council, based on
a rather sparse record. An equally plausible explanation is that the lawyers
in the Secretariat who drafted the Statute believed that the nexus with armed
conflict was still, in 1993, an element of the customary law concept of crimes
against humanity.
The cases have described the presence of an armed conflict in article 5
of the ICTY Statute as a ‘purely jurisdictional requirement’,
13
holding that
there is no requirement of a nexus between the punishable act and an armed
conflict, comparable to the situation with respect to war crimes.
14
Rather, all
that is necessary is proof ‘there was an armed conflict and that objectively
the acts of the accused are linked geographically as well as temporally with
the armed conflict’.
15
In an attempt to clarify this issue, the ICTY Appeals
Chamber stated:
The Appeals Chamber does not accept that the jurisdictional requirement
of Article 5 requires the Prosecution to establish that an armed conflict
existed within the State (or region) of the Former Yugoslavia in which the
charged Article 5 crime is alleged to have been committed. There can be
situations where an armed conflict is ongoing in one state and ethnic
civilians of one of the warring sides, resident in another state, become
victims of a widespread and systematic attack in response to that armed
conflict. All that is required under Article 5 of the Statute is that the
prosecution establish that an armed conflict is suYciently related to the
Article 5 crime with which the accused is charged. While, as previous
10
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 141; Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para.
251; Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 23.
11
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7.
12
S
ˇ
es ˇelj (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: Reflections on
the Drafting’, (2004) 2 Journal of International Criminal Justice 368, at p. 372.
13
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 83.
14
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 33. See: Gue´nae¨l
Mettraux, ‘Crimes Against Humanity in the Jurisprudence of the International Criminal
Tribunals for the Former Yugoslavia and for Rwanda’, (2002) 43 Harvard International
Law Journal 237, at pp. 263–268.
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.
188 J U R I S D I C T I O N
jurisprudence of this Tribunal has held, there is no need for the Prosecution
to establish a material nexus between the acts of the accused and the armed
conflict, the Prosecution must establish a connection between the Article 5
crime itself and the armed conflict. Consistently with the object of the
purpose of the Tribunal’s Statute, the jurisdictional requirement that
Article 5 crimes be committed in armed conflict requires the Prosecution
to establish that a widespread or systematic attack against the civilian
population was carried out while an armed conflict in Croatia and/or
Bosnia and Herzegovina was in progress.
16
Given that virtually all of the indictments by the ICTY have concerned acts
committed during armed conflict, the point has been of little practical
significance.
This issue will present some diYculties, however, with respect to prosecu-
tions for crimes against humanity committed after the Dayton Peace Agree-
ment in late 1995 and prior to the outbreak of armed conflict in Kosovo in
late-March 1999, when the NATO bombing campaign began. If Serbia and
Montenegro was at peace during this period, the ICTY will be without
jurisdiction to prosecute crimes against humanity even if, as a question of
customary international law, they may have been committed. In Limaj, which
concerns alleged atrocities committed by Kosovar secessionists, the indict-
ment states: ‘No later than early 1998, after years of increasing tension and
violence, armed conflict commenced between Serb forces and the KLA in
Kosovo.’ The time frame of the indictment is May to August 1998.
17
At the
conclusion of the Prosecutor’s case in Milos ˇevic ´, the amici curiae argued that
there was no evidence of armed conflict with respect to Kosovo prior to the
NATO bombing, in late March 1999. Referring to testimony showing that
the Kosovo Liberation Army (KLA) was a well-organised fighting force, that
it controlled territory in Kosovo, and that there was armed conflict of
considerable intensity, the Trial Chamber dismissed the motion.
18
Any civilian population
Reflecting the Nuremberg Charter’s definition of crimes against humanity, all
three statutes require that they be directed ‘against any civilian population’.
These words clarify Nuremberg’s great innovation with respect to interna-
tional criminal law, namely, that individuals associated with an oppressive
State apparatus could be prosecuted for crimes committed against their own
16
S
ˇ
es ˇelj (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 ˇevic ´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004,
paras. 14–40.
C R I M E S A G A I N S T H U M A N I T Y 189
citizens, and not only for crimes committed against foreign nationals whose
protection by international law was already relatively well established.
19
According to the ICTY Appeals Chamber,
the expression ‘directed against’ is an expression which ‘specifies that in
the context of crime against humanity the civilian population is the
primary object of the attack’. In order to determine whether the attack
may be said to have been so directed, the Trial Chamber will consider . . .
the means and method used in the course of the attack, the status of the
victims, their number, the discriminatory nature of the attack, the nature
of the crimes committed in its course, the resistance to the assailants at the
time and the extent to which the attacking force may be said to have
complied or attempted to comply with the precautionary requirements of
the laws of war.
20
It has been held that the civilian population must be the ‘primary object of
the attack’.
21
There is no need to show that the entire population of a
geographic entity was targeted by the attack, as long as it is not directed
against ‘a limited and randomly selected number of individuals’.
22
Another
judgment says the ‘civilian population’ requirement is ‘intended to imply
crimes of a collective nature and thus excludes single or isolated acts’.
23
The
population must be ‘predominantly civilian in nature’, although non-civilians
may be present.
24
Antonio Cassese has written that ‘action between soldiers
may not constitute crimes against humanity’.
25
The definition of ‘civilian’ in article 50 of Additional Protocol I has been
used as a reference, as it is said to reflect customary law.
26
In Blas ˇkic ´, a Trial
19
On this point, see Vasiljevic ´ (IT-98-32-T), Judgment, 29 November 2002, para. 33.
20
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 90.
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 ˇkic ´ et al. (IT-95-16-T), Judgment,
14 January 2000, para. 549; Blas ˇkic ´ (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 ˇkic ´ (IT-95-14-A), Judgment, 29 July 2004, para. 110; Kordic ´ et al. (IT-95-14/2-A),
Judgment, 17 December 2004, para. 97.
190 J U R I S D I C T I O N
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 definition ‘includes all persons except those who have the duty to
maintain public order and have the legitimate means to exercise force’.
28
Generally, the concept of ‘civilian population’ should be construed liberally,
in order to promote the principles underlying the prohibition of crimes
against humanity, which are to safeguard human values and protect human
dignity.
29
But although crimes against humanity require that the attack be directed
against any civilian population, this does not mean that victims need be
civilians. It has been held, with reference to French case law, that they may
also include military personnel.
30
Widespread or systematic attack
For a crime against humanity to be committed, the civilian population must
be the object of a ‘widespread or systematic attack’. This requirement is set
out explicitly in the ICTR and SCSL statutes. Although not specified in the
text of its Statute, the ICTY judgments have also imposed this condition.
31
The Secretary-General’s Report to the Security Council on establishment of
the ICTY described crimes against humanity as ‘inhumane acts of a very
serious nature . . . committed as part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or religious
27
Blas ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, para. 214. Also: Jelisic ´ (IT-95-10-T),
Judgment, 14 December 1999, para. 54; Kordic ´ et al. (IT-95-14/2-T), Judgment, 26
February 2001, para. 180; Naletilic ´ et al. (IT-98-34-T), Judgment, 31 March 2003,
para. 235; Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 582;
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 72; Musema
(ICTR- 96-13-T), Judgment and Sentence, 27 January 2000, para. 207; Kayishema et
al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 127–129; Kupres ˇkic ´
et al. (IT-95-16-T), Judgment, 14 January 2000, para. 548. See the discussion in
Chesterman, ‘An Altogether DiVerent Order’, at pp. 322–325.
28
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 127–129.
29
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 547–549; Jelisic ´ (IT-95-
10-T), Judgment, 14 December 1999, para. 54.
30
Kupres ˇkic ´ 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 ˇkic ´ (IT-95-14-A), Judgment, 29 July
2004, para. 98.
C R I M E S A G A I N S T H U M A N I T Y 191
grounds’.
32
The ‘widespread or systematic’ language is also reflected in article
7(1) of the Rome Statute of the International Criminal Court, and forms part
of customary international law.
The ‘widespread’ characteristic refers to the scale of the acts perpetrated
and the number of victims.
33
An ICTR Trial Chamber, in Akayesu, said that
‘[t]he concept of ‘‘widespread’’ may be defined as massive, frequent, large scale
action, carried out collectively with considerable seriousness and directed
against a multiplicity of victims’.
34
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
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
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 ˇkic ´ (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. 578–579; 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 pre´sume´es
responsables des crimes suivants lorsqu’ils ont e´te´ commis dans le cadre d’une attaque
ge´ne´ralise´e et syste´matique.’ See: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998,
para. 579, n. 144. The Arabic text is similar to the French. The Spanish, Russian and
Chinese versions are consistent with the English text.
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. 122–123, 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.
192 J U R I S D I C T I O N
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 significant public or private resources, the participation of high-level
political or military authorities.
40
It is the attack itself that must be widespread
or systematic, and not the specific acts with which the accused is charged.
41
Many of these factors suggest the involvement of a State or, at a minimum,
a State-like entity, such as the Republika Srpska. Indeed, it was in order to
address State-sponsored persecution of its own nationals that had previously
escaped international criminal sanction that the concept of crimes against
humanity was first developed in respect of the Nuremberg prosecutions. The
early decisions at both tribunals were divided as to whether a State or
organisational plan or policy was an element of crimes against humanity. In
Kunarac, the ICTY Appeals Chamber held that the policy component was
not an element of crimes against humanity at all ‘at the time of the alleged
acts’. In support, the Appeals Chamber referred to a number of authorities,
including Eichmann.
42
Of particular interest is the apparent contradiction
between the Appeals Chamber’s view of the requirements of customary inter-
national law and the text of the Rome Statute, which in earlier rulings the
ad hoc tribunals have sometimes cited as an authoritative codification of
customary international law.
43
But article 10 of the Rome Statute states it
shall not ‘be interpreted as limiting or prejudicing in any way existing or
developing rules of international law’, and the judges now seem to be taking its
drafters at their word. It is disappointing that the Appeals Chamber did not
provide more of an explanation for its position, or even attempt to account
for the discrepancy with the plain text of article 7 of the Rome Statute.
44
39
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 ˇkic ´ (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 ˇkic ´ (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 ˇkic ´ (IT-95-14-
A), Judgment, 29 July 2004, para. 120; Kordic ´ et al. (IT-95-14/2-A), Judgment, 17
December 2004, para. 98.
43
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 228.
44
For discussion of this issue, see: Mettraux, ‘Crimes Against Humanity’, at pp. 270–282.
Cherif Bassiouni takes the view that a State plan or policy element is part of the
customary law concept of crimes against humanity: M. Cherif Bassiouni, The Legislative
History of the International Criminal Court: Introduction, Analysis and Integrated Text,
C R I M E S A G A I N S T H U M A N I T Y 193
Although the term ‘attack’ may appear to connote the existence of an
armed conflict, this is not a requirement, and the two concepts are distinct
and independent:
45
‘The attack has been defined as a course of conduct
involving the commission of acts of violence. The attack can precede, outlast,
or continue during the armed conflict, but need not be a part of the conflict
under customary international law.’
46
It is not limited to an armed attack,
and may involve any mistreatment of the civilian population, and even 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 specific acts with which the accused is charged need not
be shown to be widespread and systematic.
49
Under certain circumstances,
even a single act can constitute a crime against humanity when committed
within the appropriate context, but an isolated act cannot.
50
The accused must have some knowledge that the attack is widespread or
systematic, and that there is a nexus between the acts committed and that
context.
51
An accused who lacks such knowledge cannot be found guilty of
crimes against humanity, although he or she may still be liable for prosecution
vol. I, Ardsley, NY: Transnational Publishers, 2005, pp. 151–152; Bassiouni, Crimes
Against Humanity, pp. 243–281.
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
February 2001, para. 33.
49
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 431.
50
Kupres ˇkic ´ 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 ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, paras. 244–247; Jelisic ´
(IT-95-10-T), Judgment, 14 December 1999, para. 56; Kordic ´ et al. (IT-95-14/2-T),
Judgment, 26 February 2001, para. 185; Kayishema et al. (ICTR-95-1-T), Judgment
and Sentence, 21 May 1999, paras. 133–134; Ruggiu (ICTR-97-32-I), Judgment and
Sentence, 1 June 2000, paras. 19–20; Bagilishema (ICTR-95-1A-T), Judgment, 7 June
2001, para. 94; Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para.
442; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 71;
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 206; Kordic ´
et al. (IT-95-14/2-A), Judgment, 17 December 2004, paras. 99–100.
194 J U R I S D I C T I O N
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 ˇkic ´:
It follows that the mens rea specific to a crime against humanity does not
require that the agent be identified with the ideology, policy or plan in
whose name mass crimes were perpetrated nor even that he supported it.
It suYces that he knowingly took the risk of participating in the imple-
mentation of the ideology, policy or plan. This specifically means that it
must, for example, be proved that: [a] the accused willingly agreed to carry
out the functions he was performing; [b] that these functions resulted in
his collaboration with the political, military or civilian authorities defining
the ideology, policy or plan at the root of the crimes; [c] that he received
orders relating to the ideology, policy or plan; and lastly [d] that he
contributed to its commission through intentional acts or by simply
refusing of his own accord to take the measures necessary to prevent their
perpetration.
54
These authorities confirm a controversial finding by the Supreme Court of
Canada in one of the rare national prosecutions for crimes against 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
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, para. 271.
53
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1).
54
Blas ˇkic ´ (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 ˇkic ´ (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
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 185.
58
Blas ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, paras. 258–259.
59
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 122–123, n. 28.
C R I M E S A G A I N S T H U M A N I T Y 195
accused commits punishable acts with knowledge of the context, the motives
should be irrelevant to the question of guilt or innocence.
60
Discriminatory intent
The expression ‘discriminatory intent’ has been used in the case law to refer to
a requirement that crimes against humanity be committed ‘on national,
political, ethnic, racial or religious grounds’. These words appear in the
introductory paragraph of article 3 of the ICTR Statute. Although absent in
the ICTY Statute, the Secretary-General’s Report to the Security Council on
establishment of the ICTY described crimes against humanity as acts 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
Reflecting evolving views on the subject, there is no such
requirement in the SCSL Statute, nor any reference to the issue in the
Secretary-General’s report on the SCSL Statute. The issue also presents itself
with respect to the specific punishable act of persecution, which appears in
paragraph (h) of the relevant provisions (‘persecutions on political, racial
and religious grounds’).
It is probably more accurate to refer to this issue as one of ‘discriminatory
motive ’ so as to distinguish it from criminal intent, which identifies an inten-
tion to engage in specific 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 confirm the likelihood
that an individual committed a crime, as well as a factor to be weighed in
sentencing a convicted person. But there are exceptions, and the imposition of a
motive requirement is one technique to ensure that ordinary oVences are
separated from international crimes.
The diVering provisions on discriminatory intent or motive that are
applicable to the three tribunals reflect an uncertain position in international
60
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. 318–321.
61
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
tion 808 (1993)’, UN Doc. S/25704 (1993), para. 48.
62
UN Doc. S/PV.3217 (25 May 1993).
63
Kvoc ˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 463.
196 J U R I S D I C T I O N
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 specific case of persecution.
64
The ICTR Appeals
Chamber subsequently made the same ruling with respect to the ICTR
Statute, overturning a Trial Chamber that had applied the text of article 3 in
a literal manner.
65
The explanation for the inclusion of this discriminatory
intent element in the chapeau of article 3 of the ICTR Statute is not 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 specifically targeted for national, political,
ethnic, racial or religious reasons’,
66
and for this reason ‘the Security Council
decided to limit the jurisdiction of the Tribunal over crimes against humanity
solely to cases where they were committed on discriminatory grounds’.
67
A more likely, though inconvenient, explanation is that the lawyers drafting
the ICTR Statute thought the discriminatory intent or motive was an element
of crimes against humanity. Only months after the Statute was adopted,
the Secretary-General was boasting that ‘the Security Council has elected
to take a more expansive approach to the choice of the applicable law’ than
the one underlying the ICTY Statute.
68
If that was really the philosophy at
the time, it seems incredible that such a limitation on the scope of crimes
against humanity would be imposed intentionally. According to one of the
United Nations lawyers who was involved in drafting both statutes, the view
taken by the Secretary-General in 1993 was that the discriminatory intent
was an element of crimes against humanity, which explains why this was
included in the Secretary-General’s report, although the language does not
appear in the ICTY Statute. The following year, the drafters of the ICTR
Statute preferred to spell out what they believed had been implicit in the
ICTY Statute. In other words, as Larry Johnson wrote, ‘[i]t is clear, however,
that the less descriptive language used in the Yugoslav Statute is intended
64
Tadic ´ (IT-94-1-A), Judgment, 15 July 1999, paras. 283, 292, 305. Also: Blas ˇkic ´ (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. 447–469. 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
‘Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolu-
tion 955 (1994)’, UN Doc. S/1995/134, para. 12.
C R I M E S A G A I N S T H U M A N I T Y 197
to encompass the description found in the Rwanda Statute’.
69
But this is
decidedly not how the Appeals Chambers have viewed the matter.
Punishable acts
The definition of crimes against humanity in the three statutes consists of an
introductory paragraph (or chapeau), followed by a list of punishable acts.
The list is exhaustive, and does not explicitly invite courts to add new
categories, although this shortcoming is adequately compensated for by the
inclusion, as the final act, of the category ‘other inhumane acts’.
Murder
All three statutes list ‘murder’ as the first punishable act of crimes against
humanity. The terminology is markedly distinct from what is used for war
crimes (‘wilful killing’) and genocide (‘killing’). Some judgments have taken
the view that this distinction suggests that ‘murder’ requires more than mere
intentional homicide, a position enhanced by the French language versions
of the 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 definition 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
Larry D. Johnson, ‘The International Tribunal for Rwanda’, (1996) 67 International
Review of Penal Law 211, at p. 220. Also: Johnson, ‘Ten Years Later’, at p. 372.
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 confirmed 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. 329–330.
71
‘Report of the International Law Commission on the Work of its Forty-eighth Session,
6 May–26 July 1996’, UN Doc. A/51/10, p. 118, art. 18.
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. 84–85; Kayishema et al.
(ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 138–139; Ntakirutimana
et al. (ICTR-96-10 & ICTR-96-17-T), Judgment, 21 February 2003; Semanza (ICTR-97-
20-T), Judgment and Sentence, 15 May 2003, paras. 334–339.
198 J U R I S D I C T I O N
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 ˇkic ´ concluded that
murder (meurtre) and not premeditated murder (assassinat) was the under-
lying oVence of a crime against humanity.
75
Citing Blas ˇkic ´, an ICTY Trial
Chamber in Kordic ´ said ‘it is now settled that premeditation is not required’.
76
But in Kupres ˇkic ´, another Trial Chamber, citing a Rwandan case, seemed to
opt again for the premeditation requirement.
77
The term ‘murder’ in the provisions of the three statutes concerning crimes
against humanity has been held to have an identical meaning to that of the
act of genocide of ‘killing’, the grave breach of ‘wilful killing’, and the war
crime of ‘murder’, and is discussed in greater detail under the heading of the
act of genocide of ‘killing’.
78
Extermination
The second punishable act of crimes against humanity in the three statutes
is ‘extermination’. Extermination refers to ‘acts committed with the intention
of bringing about the death of a large number of victims either directly, such
as by killing the victim with a firearm, or less directly, by creating conditions
provoking the victim’s death’.
79
The crime against humanity of extermination
fills a useful gap in international criminal justice, by providing a mechanism
to prosecute in cases where all of the elements of genocide, notably the
targeting of a national, ethnic, racial or religious group, are not present.
80
In
Ntakirutimana, the ICTR Appeals Chamber said:
Murder as a crime against humanity does not contain a materially distinct
element from extermination as a crime against humanity; each involves
74
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 ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, para. 216. See also: Stakic ´ (IT-97-24-T),
Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para. 24;
Jelisic ´ (IT-95-10-T), Judgment, 14 December 1999, para. 51.
76
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 235–236.
77
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 561.
78
Above at pp. 172–174.
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. 83–84; Musema (ICTR-96-13-T),
Judgment and Sentence, 27 January 2000, para. 218; Ntakirutimana et al. (ICTR-96-10 &
ICTR-96-17-T), Judgment, 21 February 2003, paras. 812–813; Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, para. 144; Niyitegeka (ICTR-96-14-T),
Judgment and Sentence, 16 May 2003, para. 450.
80
Chesterman, ‘An Altogether DiVerent Order’, at pp. 336–337.
C R I M E S A G A I N S T H U M A N I T Y 199
killing within the context of a widespread or systematic attack against the
civilian population, and the only element that distinguishes these oVences
is the requirement of the oVence of extermination that the killings occur
on a mass scale.
81
Accordingly, ‘for the crime of extermination to be established, in addition
to the general requirements for a crime against humanity, there must be
evidence that a particular population was targeted and that its members were
killed or otherwise subjected to conditions of life calculated to bring about the
destruction of a numerically significant part of the population’.
82
‘Calculated’
is a term that seems borrowed from article 4(2)(c) which concerns genocide,
and it is probably too demanding here. In Semanza, an ICTR Trial Chamber
said extermination could be distinguished from murder in that it was directed
against a population rather than individuals.
83
In many ways it resembles
genocide, except that there need be no proof of an intent to destroy the
population being attacked, nor is the description of the population confined
to national, ethnic, racial or religious groups.
84
The Rome Statute provides a
brief definition of the term, which is somewhat inspired by the genocide
provision, declaring that it ‘includes the intentional infliction of conditions
of life, inter alia the deprivation of access to food and medicine, calculated to
bring about the destruction of part of a population’. According to an ICTR
Trial Chamber in Semanza, ‘[t]he scale of the killing required for 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 final
determination from the Appeals Chamber. According to the ICTR Trial
Chambers, extermination may encompass intentional, reckless or grossly
negligent killing.
88
In Krstic ´, an ICTY Trial Chamber said the mental element
81
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004,
para. 542.
82
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 503.
83
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 340.
84
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 500.
85
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 340.
86
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004,
paras. 518, 521.
87
Blagojevic ´ (IT-02-60-T), Judgment, 17 January 2005, para. 573.
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),
Judgment and Sentence, 15 May 2003, para. 341.
200 J U R I S D I C T I O N
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
definitions of the three statutes. Enslavement is also a violation of the laws or
customs of war, where the same principles apply.
94
That slavery and the slave trade are contrary to customary international
law, and subject to individual criminal liability, is axiomatic.
95
Referring to
the 1926 Slavery Convention, the ICTY Appeals Chamber has noted that
article 1(1) defined slavery as ‘the status or condition of a person over whom
any or all of the powers attaching to the right of ownership are exercised’.
96
It said this was preferable to the words used by the Trial Chamber, describing
slavery as ‘the exercise of any or all of the powers attaching to the right of
ownership over a person’.
97
The Rome Statute somewhat develops the defini-
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
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 495.
90
Vasiljevic ´ (IT-98-32-T), Judgment, 29 November 2002, para. 229.
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. 228–229.
93
Brðanin (IT-99-36-T), Judgment, 1 September 2004, para. 394. Also: Blagojevic ´ (IT-02-
60-T), Judgment, 17 January 2005, para. 576.
94
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 108. See below at pp. 281–282.
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
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 118.
97
Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 539.
Also Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 350.
C R I M E S A G A I N S T H U M A N I T Y 201
the exercise of such power in the course of traYcking in persons, in particular
women and children’.
98
The ICC Elements of Crime provide as examples
‘purchasing, selling, lending or bartering such a person or persons, or by
imposing on them a similar deprivation of liberty’.
99
In Kunarac, the ICTY Appeals Chamber confirmed that the traditional
concept of slavery, as defined in the 1926 Slavery Convention and often
referred to as ‘chattel slavery’, has evolved to encompass various contemporary
forms of slavery which are also based on the exercise of any or all of the powers
attaching to the right of ownership. As the Appeals Chamber explained,
[i]n the case of these various contemporary forms of slavery, the victim is
not subject to the exercise of the more extreme rights of ownership
associated with ‘chattel slavery’, but in all cases, as a result of the exercise
of any or all of the powers attaching to the right of ownership, there is
some destruction of the juridical personality; the destruction is greater in
the case of ‘chattel slavery’ but the diVerence is one of degree. The Appeals
Chamber considers that, at the time relevant to the alleged crimes, these
contemporary forms of slavery formed part of enslavement as a crime
against humanity under customary international law.
100
International humanitarian law does not prohibit all labour by protected
persons in armed conflicts. For example, article 51 of the fourth Geneva
Convention seeks to regulate the practice of forced labour, declaring that an
Occupying Power may not compel protected persons to work unless they are
over eighteen years of age, and then only on work which is necessary either
for the needs of the army of occupation, or for public utility services, or for
the feeding, sheltering, clothing, transportation or health of the population
of the occupied country. Article 5 of Additional Protocol II also contemplates
forms of forced labour: ‘In addition to the provisions of Article 4 the follow-
ing provisions shall be respected as a minimum with regard to persons
deprived of their liberty for reasons related to the armed conflict, whether
they are interned or detained . . . (e) they shall, if made to work, have the
benefit of working conditions and safeguards similar to those enjoyed by the
local civilian population.’ In peacetime, however, the prohibition of slavery
or enslavement would appear to be an absolute one, consistent with 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
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 117.
101
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, paras.
542–543.
202 J U R I S D I C T I O N
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 identified, such
as elements of control and ownership, restriction or control of an individual’s
autonomy, freedom of choice or freedom of movement, the accruing of some
gain to the perpetrator, the threat or use of force or other forms of coercion,
the fear of violence, deception or false promises, the abuse of power, the
victim’s position of vulnerability, detention or captivity, and psychological
oppression or socio-economic conditions. Indications of enslavement also
include control of physical environment, psychological control, measures
taken to prevent or deter escape, force, threat of force or coercion, duration,
assertion of exclusivity, subjection to treatment and abuse, and control of
sexuality.
106
Deportation
The crime against humanity of deportation is derived from the Nuremberg
Charter. A more contemporary formulation of this punishable act appears
in article 7(2)(d) of the Rome Statute, which refers to ‘deportation or forcible
transfer of population’.
107
The reason for the addition of ‘forcible transfer’ is
to cover displacements within a State, in which international borders are
not crossed. ‘Unlawful deportation or transfer’ is a grave breach of the Geneva
Conventions, punishable as a war crime under article 2 of the ICTY Statute,
although not, it would seem, under the law of the other two tribunals. There
is nothing about deportation or transfer in either common article 3 or
Additional Protocol II.
102
Ibid., para. 542.
103
Ibid., para. 542.
104
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 120.
105
Ibid., para. 121.
106
Ibid., para. 119.
107
The crime is further defined as ‘forced displacement of the persons concerned by
expulsion or other coercive acts from the area in which they are lawfully present,
without grounds permitted under international law’.
C R I M E S A G A I N S T H U M A N I T Y 203
There have been several prosecutions before the ICTY with respect to the
crime against humanity of deportation, but apparently none before either
the ICTR or the SCSL. This may reflect concerns of their Prosecutors that the
oVence is inapplicable with respect to forced displacement within a country.
Perhaps another explanation is that no clear cases of the crime have presented
themselves.
In Krstic ´, an ICTY Trial Chamber was uncomfortable with the distinction,
and refused to conclude that the crime against humanity of deportation
had taken place with respect to the expulsions of Bosnian Muslims from
Srebrenica but still within the borders of Bosnia and Herzegovina. 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 defines deportation and forcible transfer as
‘forced displacement of the persons concerned by expulsion or other coercive
acts from the area in which they are lawfully present, without grounds
permitted under international law’.
112
One ground permitted by international
law is when ‘the security of the civilians or imperative military reasons so
demand’.
113
According to an ICTY Trial Chamber, ‘[e]vacuation is by defini-
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 ˇkic ´ et al. (IT-95-
16-T), Judgment, 14 January 2000, para. 566; Milos ˇevic ´ (IT-02-54-T), Decision on
Motion for Judgment of Acquittal, 16 June 2004, para. 52.
109
Stakic ´ (IT-97-24-T), Judgment, 31 July 2003, para. 675.
110
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, paras. 222–223. See, particularly,
the detailed discussion of this point in the Separate Opinion of Judge Schomburg. Also:
Simic ´ et al. (IT-95-9-T), Judgment, 17 October 2003, para. 129; Milos ˇevic ´ (IT-02-54-T),
Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 68–69.
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
Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75
UNTS 287, art. 49(2); Protocol Additional to the 1949 Geneva Conventions and Relat-
ing to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125
UNTS 609, art. 17(1).
114
Blagojevic ´ (IT-02-60-T), Judgment, 17 January 2005, para. 597.
204 J U R I S D I C T I O N
noted that international humanitarian law had long recognised not only the
right but also the duty of military commanders to evacuate civilians when
they are in danger as a result of military operations. It concluded that
humanitarian reasons are also a justification for evacuation of a civilian
population.
115
Imprisonment
The crime against humanity of imprisonment consists of an act or omission
that results in arbitrary deprivation of physical liberty, or that is reasonably
likely to eVect that result. Arbitrary deprivation of liberty occurs when there
is no legal justification for the detention.
116
According to the ICTY Appeals
Chamber in Kordic ´ and C
ˇ
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 definition applied at Nuremberg. Torture
is listed as a crime against humanity, but it is also a grave breach of the Geneva
Conventions and a war crime. The tribunals have made no significant 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 defined in the case law of
the tribunals as involving ‘the infliction, by act or omission, of severe pain
or suVering, whether physical or mental’, aimed at ‘obtaining information
or a confession, or at punishing, intimidating or coercing the victim or a
third person, or at discriminating, on any ground, against the victim or a third
person’.
118
This definition is largely derived from international human
rights instruments, specifically the 1975 Declaration on the Protection of All
115
Ibid., paras. 597–600.
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. 302–303.
117
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 302; Kordic ´ et al. (IT-95-
14/2-A), Judgment, 17 December 2004, para. 116.
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; Furundzˇija (IT-95-17/1-A), Judgment,
C R I M E S A G A I N S T H U M A N I T Y 205
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 definition in article 1 of the Torture Convention
to the term ‘torture’ in its own Statute.
122
The international humanitarian law prohibition of torture has evolved
from a variety of sources, including the Lieber Code of 1863 and the Hague
Conventions, especially Hague Convention IV of 1907. Torture was not spe-
cifically mentioned in the Nuremberg Charter, but it was expressly classified as
a crime against humanity in Allied Control Council Law No. 10.
123
As an
ICTY Trial Chamber pointed out in Furundzˇija, ‘no State has ever claimed that
it was authorised to practice torture in time of armed conflict, nor has any
State shown or manifested opposition to the implementation of treaty 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 ˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 159–160, which provides a
detailed justification 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, 50–55, art. 2(a).
124
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 138.
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 ˇka et al. (IT-98-
30/1-T), Judgment, 2 November 2001, para. 153.
206 J U R I S D I C T I O N
purpose for torture under international humanitarian law’.
127
It has been
noted that torture is not a gratuitous act of violence, but seeks to attain a
certain result or purpose. In the absence of such purpose or goal, even very
severe infliction of pain would not qualify as torture.
128
But while there must
be evidence of the prohibited purpose, it need not be the sole or even the
predominant purpose for inflicting the severe pain or suVering.
129
The list of
prohibited purposes in the definition of torture has been held not to be
exhaustive but merely representative. Torture for purely private purposes,
however, would fall outside the scope of the definition.
Some early rulings of the ICTY held that at least one of the perpetrators
of torture must be a public oYcial or, at any rate, someone not acting in a
private capacity; that is, that it be ‘committed by, or at the instigation of, or
with the consent or acquiescence of, an oYcial or other person acting in
an oYcial capacity’.
130
This view was based on the inclusion of this criterion
within the definition of torture of the Convention Against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment. But more
recent decisions have said this is not a requirement of the crime of torture
under customary international law.
131
In Kvoc ˇka, an ICTY Trial Chamber
explained that ‘the state actor requirement imposed by international human
rights law is inconsistent with the application of individual criminal
responsibility for international crimes found in international humanitarian
law and international criminal law’.
132
It is the severity of the pain or suVering inflicted in the case of torture that
sets it apart from similar oVences. In assessing the seriousness of such mis-
treatment, it has been held that the objective severity of the harm inflicted
must first be assessed. Then, the tribunal should consider subjective criteria,
such as the physical or mental eVect of the treatment upon the particular
victim and, in some cases, factors such as the victim’s age, sex or state of
health.
133
According to one ICTY Trial Chamber,
127
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 140.
128
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 180.
129
Kvoc ˇka 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. 494–496. Also: Fur-
undz ˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 162; Furundzˇija (IT-95-17/
1-A), Judgment, 21 July 2000, para. 111; Akayesu (ICTR-96-4-T), Judgment, 2 Septem-
ber 1998, paras. 593–595, 681.
131
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 148; Krnojelac (IT-97-25-
T), Judgment, 15 March 2002, para. 188.
132
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 139. Also: Semanza
(ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 342–343. Also: Kvoc ˇka
et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 280–284.
133
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 142–143.
C R I M E S A G A I N S T H U M A N I T Y 207
[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 infliction of pain, the premeditation and
institutionalisation of the ill-treatment, the physical condition of the
victim, the manner and method used, and the position of inferiority of
the victim. The extent that an individual has been mistreated over a
prolonged period of time will also be relevant.
134
Although torture often causes permanent damage to the health of its victims,
permanent injury is not a requirement for the crime.
135
The mental suVering
of an individual forced to watch severe mistreatment of a relative could reach
the level of gravity required for the crime of torture. In Kvoc ˇka, a Trial
Chamber wrote: ‘[B]eing forced to watch serious sexual attacks inflicted on
a female acquaintance was torture for the forced observer. The presence of
onlookers, particularly family members, also inflicts severe mental harm
amounting to torture on the person being raped.’
136
Perhaps the most striking example of torture in the case law of the ICTY
concerns rape. The tribunals have frequently been praised for their inclusion
of rape within the scope of the crime of torture. In its ruling dealing with the
Foca camp, the ICTY Appeals Chamber stated:
[S]ome acts establish per se the suVering of those upon whom they were
inflicted. Rape is . . . such an act . . . Sexual violence necessarily gives rise to
severe pain or suVering, whether physical or mental, and in this way
justifies its characterisation as an act of torture. Severe pain or suVering,
as required by the definition of the crime of torture, can thus be said to be
established once rape has been proved, since the act of rape necessarily
implies such pain or suVering.
137
The Tribunal has noted that ‘[t]he psychological suVering of persons upon
whom rape is inflicted may be exacerbated by social and cultural conditions
and can be particularly acute and long lasting’.
138
It was in the context of a torture prosecution that an ICTY Trial Chamber
made statements that, while not particularly important in terms of the law
of the tribunals, represent a significant development in public international
law. In Furundzˇija, it was held that the prohibition of torture has
evolved into a peremptory norm or jus cogens, that is, a norm that enjoys
a higher rank in the international hierarchy than treaty law and even
‘ordinary’ customary rules. The most conspicuous consequence of this
134
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 182.
135
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 148.
136
Ibid., para. 149.
137
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 149–151.
138
Delalic ´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 494.
208 J U R I S D I C T I O N
higher rank is that the principle at issue cannot be derogated from by
States through international treaties or local or special customs or even
general customary rules not endowed with the same normative force.
139
Rape
Rape was not listed in the Charter of the Nuremberg Tribunal, although it was
included some months later in the crimes against humanity provision of
Control Council Law No. 10.
140
Aside from the contextual elements, the same
principles apply to rape as a war crime, and they are also considered in this
work under the heading of ‘Violations of the laws and customs of war.’
141
The term ‘rape’ is widely used in national justice systems, but its definition
varies significantly. It has also evolved considerably over the years, reflecting
changing attitudes towards the nature and gravity of sexual violence.
142
In the
first of the cases of the ad hoc tribunals to consider the definition of the term,
an ICTR Trial Chamber provided a very broad definition, and one that
probably goes well beyond that of many national criminal codes: ‘The 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 defines rape as a physical invasion of a sexual
nature, committed on a person under circumstances which are coercive.’
143
Shortly afterwards, this definition was endorsed by a Trial Chamber of the
ICTY.
144
But another ICTY Trial Chamber, clearly concerned about a possible
breach of the nullum crimen sine lege principle, took a more positivistic
approach, holding that rape consisted of ‘the sexual penetration, however
slight: (a) of the vagina or anus of the victim by the penis of the perpetrator
or any other object used by the perpetrator; or (b) of the mouth of the victim
by the penis of the perpetrator; (c) by coercion or force or threat of
force against the victim or a third person’.
145
This latter definition was subse-
quently endorsed in the Elements of Crimes adopted by the Assembly of States
139
Furundzˇija (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, 50–55, 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. 35–36; CR v. United Kingdom, Series A, No.
335-B, paras. 33–34.
143
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 325–326.
144
Delalic ´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 478. Also: Kvoc ˇka et al.
(IT-98-30/1-T), Judgment, 2 November 2001, paras. 175, 180; Musema (ICTR-96-13-T),
Judgment and Sentence, 27 January 2000, paras. 220–221, 226–229.
145
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, para. 185.
C R I M E S A G A I N S T H U M A N I T Y 209
Parties of the International Criminal Court.
146
It has since been confirmed
in a ruling of the ICTY Appeals Chamber.
147
Rape is one of the rare crimes within the jurisdiction of the tribunals for
which special rules of evidence are provided. Rule 96 is entitled ‘Evidence in
Cases of Sexual Assault’ and was adopted at the ICTY Second Plenary Session
on 11 February 1994. It specifies that: no corroboration of the victim’s
testimony shall be required; consent shall not be allowed as a defence if the
victim has been subjected to or threatened with or has had reason to fear
violence, duress, detention or psychological oppression, or reasonably
believed that if she did not submit, another might be so subjected, threatened
or put in fear; prior sexual conduct of the victim shall not be admitted in
evidence. Other evidentiary issues have been addressed in the decision, where
they are presented as debates about the ‘elements’ of the oVence. Thus, it
has been held that ‘resistance’ by the victim need not be established.
148
With
respect to evidence of force or the threat of force, it is said to provide clear
evidence of non-consent, but is not an element per se of rape.
149
Judges have
said that ‘[a] narrow focus on force or threat of force could permit 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 victim’s free will, assessed in the context of the surrounding
circumstances.
151
The history of prosecutions for rape before the tribunals has been marked
by diYculty and controversy.
152
In the Rule 61 hearing against Nikolic´, a Trial
Chamber invited the Prosecutor to amend the indictment so as to charge
sexual assault, as a crime against humanity, a grave breach, or a violation of
the laws or customs of war, after evidence revealed that women and girls
146
‘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 ˇka 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. 344–345; Kamuhanda (ICTR-95-54A-T),
Judgment, 22 January 2004, paras. 707–709.
148
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 127–132.
149
Ibid., paras. 127–132.
150
Ibid., para. 127–132.
151
Ibid., paras. 127–132. For more discussion about Rule 96 of the RPE, see below at
pp. 341–343.
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.
210 J U R I S D I C T I O N
had been subjected to rape and sexual assault in the Susica camp.
153
In the
first important trial before the ICTY, defendant Tadic´ was initially charged
with rape, but some of the charges were withdrawn when a prosecution
witness was too frightened to testify. Another prosecution dealing with a
single case of rape hit a major snag when the defence fought, with consider-
able success, to have access to the victim’s psychological files. At the ICTR,
the Prosecutor agreed to amend the indictment of Jean-Paul Akayesu so as
to include a range of charges relating to sexual violence, including rape.
Akayesu was convicted, and the judgment of the Trial Chamber eloquently
set out many of the applicable principles that would inspire subsequent cases.
Undoubtedly the most important case dealing with rape and sexual violence
concerned the Foca camp, in Bosnia and Herzegovina, for which several
convictions concerning sexual violence were entered and stiV penalties
imposed.
Sexual violence
In addition to rape, the SCSL Statute lists several specific acts that fall within
the generic heading of ‘sexual violence’: ‘sexual slavery, enforced prostitution,
forced pregnancy and any other form of sexual violence’. The language seems
to be inspired by article 7 of the Rome Statute, which refers to ‘sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence of comparable gravity’. There is no explanation for
the omission of ‘enforced sterilization’ in the SCSL Statute provision.
Obviously, international humanitarian law must address other forms of
violence of a sexual nature that do not meet the definition of rape. Such acts
are also prosecuted under the statutes of the three tribunals as serious 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-General’s Report on the ICTY Statute referred
to ‘sexual assault’.
156
Both the ICTYand ICTR have addressed sexual violence
153
Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for
the Former Yugoslavia’, (1999) 93 American Journal of International Law 57, at p. 88. See
the personal account of how this developed by the Prosecutor at the time: Richard
J. Goldstone, ‘Prosecuting Rape as a War Crime’, (2002) 34 Case Western Reserve Journal
of International Law 277, at p. 281.
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
‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
tion 808 (1993)’, UN Doc. S/25704 (1993), paras. 48, 88, 108.
C R I M E S A G A I N S T H U M A N I T Y 211
not meeting the definition of rape as the crime against humanity of ‘other
inhumane acts’.
The term ‘sexual violence’ does not appear in the Statute or in the Rules.
It first appeared in indictments drafted by the Prosecutor as a generic term to
indicate the crimes against humanity of rape and ‘other inhumane acts’, and
the war crime of outrages upon personal dignity. The Prosecutor has also
used the term with respect to the crime against humanity of persecution
and genocide.
157
In Akeyesu, an ICTR Trial Chamber said ‘[s]exual violence
which includes rape, is considered to be any act of a sexual nature which is
committed on a person under circumstances which are coercive’.
158
The
term was also used in judgments of the ICTY in essentially the same con-
text.
159
According to a Trial Chamber, in Kvoc ˇka, ‘sexual violence is broader
than rape and includes such crimes as sexual slavery or molestation’.
160
Some specific acts of sexual violence, drawn from the crimes against
humanity provision in the SCSL Statute, have been defined in the Elements
of Crimes of the International Criminal Court. Probably these materials will
be drawn on by the SCSL judges, to the extent they are satisfied that they
are consistent with customary international law.
Sexual slavery
‘Sexual slavery’ is a crime against humanity listed in the SCSL Statute.
161
It
is almost certainly a crime punishable by the other two tribunals as the crime
against humanity of ‘other inhumane acts’. It could also be prosecuted as the
crime against humanity of ‘enslavement’ and the war crime of ‘slavery’.
Inclusion of ‘sexual slavery’ within the definition of crimes against 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 ˇevic ´ (IT-01-51-I), Indictment, 22 November 2001, paras. 32(c), 35(e).
158
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 326.
159
Delalic ´ et al. (IT-96-21-T), Judgment, 16 November 1998, para. 477.
160
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 175, 180.
161
SCSL Statute, art. 2(g).
162
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 541, fn. 1333.
212 J U R I S D I C T I O N
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 defined in the Supplementary Convention on the Abolition
of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery
of 1956. It is also understood that the conduct described in this element
includes traYcking in persons, in particular women and children.
163
According to the United Nations Special Rapporteur on the Situation of
Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed
Conflict, sexual slavery ‘should be understood to be the status or condition
of a person over whom any or all of the powers attaching to the right of
ownership are exercised, including sexual access through rape or other forms
of sexual violence’.
164
Under the heading of ‘sexual violence’, the Prosecutor of the SCSL has
prepared charges for the crime of ‘forced ‘‘marriages’’ ’. The indictments
explain that women ‘were used as sex slaves and/or forced into ‘‘marriages’’ ’
and that the ‘ ‘‘wives’’ were forced to perform a number of conjugal duties
under coercion by their ‘‘husbands’’ ’.
165
It is not clear from the indictments
whether ‘forced marriage’ is to be prosecuted as ‘sexual violence’ or as ‘other
inhumane acts’, because both are listed. It would appear this may be more
properly charged as ‘sexual slavery’.
Enforced prostitution
‘Enforced prostitution’ is a crime against humanity listed explicitly in the
SCSL and ICTR statutes,
166
and part of the implied content of article 3 of the
ICTY Statute. The United Nations Special Rapporteur on the Situation of
Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed
Conflict has described ‘enforced prostitution’ as referring ‘to conditions of
control over a person who is coerced by another to engage in sexual 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 Do¨rmann, Elements of War Crimes Under the Rome
Statute of the International Criminal Court, Sources and Commentary, Cambridge: Cam-
bridge University Press, 2002, pp. 328–329.
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.
54–60; Brima et al. (SCSL-04-16-PT), Amended Consolidated Indictment, 13 May 2004,
paras. 51–57. On ‘forced marriage’, see: Monika Satya Kalra, ‘Forced Marriage: Rwanda’s
Secret Revealed’, (2001) 7 UC Davis Journal of International Law and Policy 197.
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.
C R I M E S A G A I N S T H U M A N I T Y 213
The perpetrator caused one or more persons to engage in one or more acts
of a sexual nature by force, or by threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or
abuse of power, against such person or persons or another person, or by
taking advantage of a coercive environment or such person’s or persons’
incapacity to give genuine consent.
Moreover, it must also be shown that ‘[t]he perpetrator or another person
obtained or expected to obtain pecuniary or other advantage in exchange
for or in connection with the acts of a sexual nature’.
168
There do not appear to have been any prosecutions at the tribunals for
‘enforced prostitution’.
Forced pregnancy
Another act of sexual violence drawn from the Rome Statute and included
in the SCSL Statute’s list of crimes against humanity is ‘forced pregnancy’.
According to article 7(2)(f) of the Rome Statute, ‘ ‘‘[f]orced pregnancy’’
means the unlawful confinement, of a woman forcibly made pregnant, with
the intent of aVecting the ethnic composition of any population or carrying
out other grave violations of international law’. There have been no 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 flexible provision enabling it to incorporate unco-
dified but clearly recognised punishable acts, such as ‘enforced sterilisation’.
The Court not only will have to comply with the principle of nullum crimen
sine lege, it must also ensure that any punishable acts genuinely fulfil the other
criteria for crimes against humanity.
The comparable provision in the Rome Statute requires that other forms
of sexual violence be ‘of comparable gravity’ to those criminalised explicitly.
In Akayesu, an ICTR Trial Chamber said that crimes against humanity ‘must
be inhumane in nature and character, causing great suVering, or serious
injury to body or to mental or physical health’.
170
Forms of sexual violence
that do not meet this standard should not be prosecuted as crimes against
humanity by the SCSL.
168
‘Elements of Crimes’, ICC-ASP/1/3, p. 108, e.g., arts. 7(1)(g)-3, 8(2)(b)(xxii)-3; Article
8(2)(e)(vi)-3. This is discussed in Do¨rmann, Elements of War Crimes, p. 329.
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.
214 J U R I S D I C T I O N
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 define, as an act of crime against humanity,
‘[p]ersecutions on political, racial and religious grounds’.
172
The language is
taken verbatim from the definition of crimes against humanity in the 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 identifiable group or collectiv-
ity on political, racial, national, ethnic, cultural, religious, gender as defined
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’ definition does not appear to have been influential in the case
law of the three tribunals. Indeed, one ICTY Trial Chamber wrote that
‘although the Statute of the ICC may be indicative of the opinio juris of many
States, Article 7(1)(h) is not consonant with customary international law’,
and rejected in particular the requirement that persecution be connected
with a crime within the jurisdiction of the court or another act of crime
against humanity as too narrow.
176
An ICTY Trial Chamber has described persecutions as ‘the gross or blatant
denial, on discriminatory grounds, of a fundamental right, laid down in
international customary or treaty law, reaching the same level of gravity as
the other acts prohibited in Article 5’.
177
Another has said that persecution
171
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 modification of no legal significance.
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 identified national, ethnic, racial or
religious group’. ‘Report of the Secretary-General on the Establishment of a Special
Court for Sierra Leone’, UN Doc. S/2000/915, para. 13.
175
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7(1)(h).
176
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 579–581.
177
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 621. Also: Krstic ´ (IT-98-
33-T), Judgment, 2 August 2001, para. 534.
C R I M E S A G A I N S T H U M A N I T Y 215
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
ˇ
erkez, the ICTYAppeals Chamber defined
persecutions as ‘an act or omission which: 1. discriminates in fact and which
denies or infringes upon a fundamental right laid down in international
customary or treaty law (the actus reus); and 2. was carried out deliberately
with the intention to discriminate on one of the listed grounds, specifically
race, religion or politics (the mens rea)’.
179
Like genocide, with which it has important similarities, the crime against
humanity of persecution is a crime of ‘specific intent’.
180
The discriminatory
intent can be demonstrated by omission, as well as by act. Thus, ‘an attack
‘‘conducted against only the non-Serb portion of the population because they
were non-Serbs’’ was indicative of the necessary discriminatory intent’.
181
Discriminatory intent can be inferred from knowingly participating in a
system or enterprise that discriminates on political, racial or religious
grounds.
182
But ‘[t]he requirement that an accused consciously intends to
discriminate does not dictate the existence of a discriminatory policy or,
where such a policy is shown to exist, participation by the accused in the
formulation of that discriminatory policy or practice by an authority’.
183
The
law does not require that a discriminatory policy exist, or that there be
proof the accused took part in formulating a discriminatory policy or practice
by an authority.
184
The accused must consciously intend to discriminate,
185
and ‘[w]hile the intent to discriminate need not be the primary intent with
respect to the act, it must be a significant one’.
186
This discriminatory intent
must be established with respect to the specific act that is charged rather than
178
Naletilic ´ et al. (IT-98-34-T), Judgment, 31 March 2003, para. 634.
179
Kordic ´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 101. Also: Blas ˇkic ´ (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
Kvoc ˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 460.
181
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 195.
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 ˇkic ´ 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-
T), Judgment, 15 March 2002, para. 435.
186
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 435.
216 J U R I S D I C T I O N
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-
T), Judgment, 15 March 2002, para. 432.
189
Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June 2000, para. 22; Nahimana et al.
(ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1078.
190
For discussion of the crime of direct and public incitement to commit genocide, see
above at pp. 181–183.
191
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 185; Kupres ˇkic ´ et al.
(IT-95-16-T), Judgment, 14 January 2000, paras. 618–619; Kordic ´ et al. (IT-95-14/2-T),
Judgment, 26 February 2001, paras. 193–195; Kordic ´ et al. (IT-95-14/2-A), Judgment, 17
December 2004, para. 102.
192
Vasiljevic ´ (IT-98-32-T), Judgment, 29 November 2002, para. 247.
193
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 614–615. Also: Kvoc ˇka
et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 185; Krstic ´ (IT-98-33-T),
Judgment, 2 August 2001, para. 535.
C R I M E S A G A I N S T H U M A N I T Y 217
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. Significantly, persecution
has been described as belonging to ‘the same genus as genocide’,
196
in that it
must be committed against persons belonging to a particular group who
are targeted for this reason. According to an ICTY Trial Chamber, ‘from the
viewpoint of mens rea, genocide is an extreme and most inhuman form
of persecution. To put it diVerently, when persecution escalates to the extreme
form of wilful and deliberate acts designed to destroy a group or part of
a group, it can be held that such persecution amounts to genocide.’
197
The
relationship between the two, and the requirement of a discriminatory
motive for persecution, is a good argument favouring the requirement of a
discriminatory motive in the case of genocide.
198
Persecutions may involve the infliction of physical or mental harm, or
infringements upon individual freedom,
199
such as the unlawful detention,
deportation or forcible transfer of civilians.
200
Persecutions can even involve
attacks on political, social and economic rights. An ICTY Trial Chamber has
referred in particular to ‘acts rendered serious not by their apparent cruelty
but by the discrimination they seek to instil within humankind’.
201
Acts of
‘harassment, humiliation and psychological abuse’ may also amount to per-
secutions.
202
Persecutions can include crimes that target property, which
194
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 622; Vasiljevic ´ (IT-98-
32-T), Judgment, 29 November 2002, para. 247.
195
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 624.
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. 47–55.
199
Vasiljevic ´ (IT-98-32-T), Judgment, 29 November 2002, para. 246; Blas ˇkic ´ (IT-95-14-T),
Judgment, 3 March 2000, para. 220.
200
Ibid., para. 234.
201
Blas ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, para. 227.
202
Kvoc ˇka et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 324–325.
218 J U R I S D I C T I O N
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 signifi-
cance. Although national and ethnic groups are not encompassed within
article 3(h), they will generally fit within the parameters of the somewhat
archaic term ‘racial’. The principal victims of persecution in Rwanda, namely
the Tutsi minority, can be adequately described as either an ‘ethnic’ or a
‘racial’ group. No prosecution for persecution before the ICTR should fail
because the Tutsi are not considered a ‘racial’ group, although this is precisely
what occurred in the Semanza case.
207
The bizarre result of that decision is a
conviction for genocide, but an acquittal for the crime against humanity of
persecution. In Semanza, the accused was also acquitted of persecution with
respect to killings of ‘moderate Hutus and others sympathetic to the Tutsi’,
because the Trial Chamber considered that the Prosecutor had failed to
demonstrate they were a ‘political group’ as this is meant by article 3(h).
208
Yet it would seem this is precisely where the attacks on the ‘progressive Hutu’
fit within the scheme of the ICTR Statute. Such acts are probably not 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
Blas ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, para. 233.
204
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 350.
205
This is discussed above under ‘discriminatory intent’, above at pp. 196–198.
206
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1071.
207
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 470–471.
208
Ibid., para. 471.
C R I M E S A G A I N S T H U M A N I T Y 219
activity. In Nahimana, another Trial Chamber did not see any problem fitting
persecution of the progressive Hutu within the scope of the provision,
describing it as ‘persecution on political grounds of an ethnic character’.
209
Some judgments have found an overlap between war crimes and persecu-
tions. In Blas ˇkic ´, a Trial Chamber described an act of persecution which
echoes war crimes prohibitions: ‘In the context of the crime of persecution,
the destruction of property must be construed to mean the destruction of
towns, villages and other public or private property belonging to a given
civilian population or extensive devastation not justified by military necessity
and carried out unlawfully, wantonly and discriminatorily.’
210
In Kordic ´
and C
ˇ
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 findings that war
crimes are also crimes against humanity, as the whole purpose behind the
development of the concept of crimes against humanity was to fill gaps left in
the law concerning war crimes. But in this case, that is exactly what the ICTY
Appeals Chamber was doing. It had earlier reached the conclusion that 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 defined the act of persecution of ‘terrorising the civilian
population’ with reference to the war crime of ‘acts or threats of violence the
primary purpose of which is to spread terror among the civilian population’,
prohibited by article 51(2) of Additional Protocol I and Article 13(2) of
Additional Protocol II to the 1949 Geneva Conventions.
213
It is not always so clear, however, why judgments have concluded that
acts of wilful killing, murder, torture and deportation are also persecutions, in
that these acts are adequately addressed elsewhere in the crimes against
humanity provision.
214
The tribunals have justified this with reference to
the post-Second World War case law, which included the other enumerated
209
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1072.
210
Blas ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, para. 234.
211
Kordic ´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 104. Also: Blas ˇkic ´ (IT-
95-14-A), Judgment, 29 July 2004, paras. 157–159, referring to Kupres ˇkic ´ et al. (IT-95-
16-T), Judgment, 14 January 2000, para. 627; Krnojelac (IT-97-25-T), Judgment, 15
March 2002, para. 434.
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. 280–281.
214
See, for example, Kordic ´ et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 106;
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, paras. 347–350.
220 J U R I S D I C T I O N
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 ˇkic ´, an ICTY Trial Chamber said the destruction of certain types of
property ‘may not have a severe enough impact on the victim as to constitute
a crime against humanity’, citing as an example the burning of an individual’s
215
See Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, paras. 604–605.
216
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 128–172.
217
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 202–207; Kvoc ˇka et al.
(IT-98-30/1-T), Judgment, 2 November 2001, para. 186; Blas ˇkic ´ (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. 119–123;
Blas ˇkic ´ (IT-95-14-A), Judgment, 29 July 2004, paras. 143–159.
218
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 208–210.
219
Blas ˇkic ´ (IT-95-14-A), Judgment, 29 July 2004, para. 139.
220
Blagojevic ´ (IT-02-60-T), Judgment, 17 January 2005, para. 593.
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 ˇkic ´ (IT-95-14-
A), Judgment, 29 July 2004, para. 149.
223
Blas ˇkic ´ (IT-95-14-A), Judgment, 29 July 2004, para. 146, citing with approval Kupres ˇkic ´
et al. (IT-95-16-T), Judgment, 14 January 2000.
C R I M E S A G A I N S T H U M A N I T Y 221
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 justified 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 definition, although some
eVorts at national implementation have omitted it. The rubric of ‘other
inhumane acts’ was ‘deliberately designed as a residual category, as it was felt
undesirable for this category to be exhaustively enumerated. An exhaustive
categorization would merely create opportunities for evasion of the letter of
the prohibition.’
227
In Jelisic ´, an ICTY Trial Chamber described ‘other 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 inflict serious bodily or
mental harm upon the victim.
229
The equivalent provision in the Rome
224
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 631.
225
Ibid., para., 631; Blas ˇkic ´ (IT-95-14-A), Judgment, 29 July 2004, para. 146.
226
Blagojevic ´ (IT-02-60-T), Judgment, 17 January 2005, para. 593.
227
Kupres ˇkic ´ 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.
585; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 77;
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 148–151.
228
Jelisic ´ (IT-95-10-T), Judgment, 14 December 1999, para. 52.
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. 271–272; Vasiljevic ´ (IT-98-32-T),
222 J U R I S D I C T I O N
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 woman’s breast oV and licking it, and
piercing a woman’s sexual organs with a spear are nefarious acts of a
comparable gravity to the other acts listed as crimes against humanity,
which would clearly cause great mental suVering to any members of the
Tutsi community who observed them. Furthermore, given the circum-
stances under which these acts were committed, the Chamber finds that
they were committed in the course of a widespread attack upon the Tutsi
civilian population.
234
As a residual category, other inhumane acts may often overlap with the
crime against humanity of persecution. It has been held that because 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 specific 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
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art.
7(1)(k).
231
Blas ˇkic ´ (IT-95-14-T), Judgment, 3 March 2000, para. 239.
232
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 208.
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. 934–936.
C R I M E S A G A I N S T H U M A N I T Y 223
is persecution.
235
For this reason, other inhumane acts have also been said to
have a ‘subsidiary nature’.
236
A controversial example of a gap within the specific crimes against 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 definition of
deportation, it concluded that forcible displacement within a country’s own
borders amounted to ‘other inhumane acts’.
238
A year later, another Trial
Chamber, in Stakic ´, showed great discomfort with this position. The judgment
notes that the category of other inhumane acts ‘may well be considered to
lack suYcient clarity, precision and definiteness, that is to violate the ‘‘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 Chamber’s finding is only one manifestation of a clear unease
among judges at the tribunals with the imprecise nature of the category of
other inhumane acts.
241
It is interesting that both of the trial chambers in
these contradictory opinions were preoccupied by the nullum crimen issue, yet
they found room within the definition of crimes against humanity – albeit in
diVerent provisions – so as to convict the accused.
235
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 676.
236
Kvoc ˇka et al. (IT-98-30/1-T), Judgment, 2 November 2001.
237
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art.
7(1)(d).
238
Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 523. Also: Kupres ˇkic ´ 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
Stakic ´ (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31
October 2002, para. 131 (emphasis in the original).
240
Ibid.
241
Also: Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 563.
224 J U R I S D I C T I O N
There is also something of an overlap between ‘other inhumane acts’ and
war crimes. In one of the rare ICTY prosecutions for ‘battlefield law’, Bosnian
Serb General Galic´ was convicted of the crime against humanity of ‘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
Kupres ˇkic ´ et al. (IT-95-16-T), Judgment, 14 January 2000, para. 565.
244
Ibid.
C R I M E S A G A I N S T H U M A N I T Y 225
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 identified in literature, like the plays of Shakespeare,
2
and in the historic
works of public international law. Of more recent vintage is the suggestion
that violations of the laws and customs of war were punishable oVences that
engaged the criminal responsibility of individuals.
With little or no hesitation, the Commission on Responsibilities established
at the Paris Peace Conference in 1919 concluded that ‘[a]ll persons belonging
to enemy countries, however high their position may have been, without
distinction of rank, including Chiefs of States, who have been guilty of
oVences agains the laws and customs of war or the laws or humanity, are
liable to criminal prosecution’.
3
The Commission said that ‘[e]very belligerent
has, according to international law, the power and authority to try the
individuals alleged to be guilty’ of war crimes, ‘if such persons have been
taken prisoners or have otherwise fallen into its power’.
4
These statements
1
Hersch Lauterpacht, ‘The Problem of the Revision of the Law of War’, (1952) 29 British
Yearbook of International Law 360, at pp. 381–382.
2
Theodor Meron, Henry’s Wars and Shakespeare’s Law, Perspectives on the Law of War in
the Later Middle Ages, Oxford: Clarendon Press, 1993; Theodor Meron, ‘Crimes and
Accountability in Shakespeare’, in War Crimes Law Comes of Age, Oxford: Clarendon
Press, 1998, pp. 67–121.
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 confirmed when the victorious allies included clauses in the Treaty of
Versailles dealing with post-war prosecutions.
5
Yet they did not finally insist
upon judging German war criminals, and left this to the national courts of
Germany.
6
The first genuinely international prosecutions for war crimes
took place only at Nuremberg, where ‘violations of the laws or customs of
war’ were said to include ‘murder, ill-treatment or deportation to slave
labor or for any other purpose of civilian population of or in occupied
territory, murder or ill-treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private property, wanton destruc-
tion of cities, towns or villages, or devastation not justified by military
necessity’.
7
The judgment of the International Military Tribunal confirmed
that
the crimes defined by Article 6, section (b), of the Charter were already
recognised as war crimes under international law. They were covered by
Articles 46, 50, 52 and 56 of the Hague Convention of 1907, and Articles 2,
3, 4, 46 and 51 of the Geneva Convention of 1929. That violations of these
provisions constituted crimes for which the guilty individuals were 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. 228–230.
6
Gerd Hankel, Die Leipziger Prozesse, Hamburg: Hamburger Edition, 2003.
7
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, annex, art. VI(b).
8
France et al. v. Go¨ring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, at p. 248.
9
Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of
America and Japanese Members of the Commission on Responsibilities, Conference of Paris,
1919, Oxford: Clarendon Press, 1919, (1920) 14 American Journal of International Law
95, at pp. 112, 115, 118, 121.
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
conflict. Moreover, in the case of the ICTY and the ICTR, their legitimacy
derives from Chapter VII of the Charter of the United Nations, which requires
‘the existence of any threat to the peace, breach of the peace, or act of 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 conflict’, essentially introduced by the 1949
Geneva Conventions; and (ii) the correlative notion of ‘international law
of armed conflict’, or the more recent and comprehensive notion of
‘international humanitarian law’, which has emerged as a result of the
influence of human rights doctrines on the law of armed conflict.
16
By the early 1990s, several sources of international law provided a degree of
codification of the law of war crimes, more specifically the war crimes 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 conflicts. One of the great accomplishments of the ad hoc
tribunals has been to extend the reach of international law dealing with war
13
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, annex, art. 6(b).
14
Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of
Victims of International Armed Conflicts, (1979) 1125 UNTS 3, art. 85(5).
15
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, arts. 5(1),
8, 31(1)(c).
16
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 87.
228 J U R I S D I C T I O N
crimes into the field of non-international armed conflicts (or civil wars). This
reflects more general developments in international law, by which human
rights and human security are no longer viewed as matters of purely national
concern, sheltered from international oversight by notions of sovereignty
and non-interference in internal aVairs. To the extent that war crimes take
place within a purely internal conflict, they nevertheless attract international
scrutiny, especially if they are left unpunished by the national justice system
of the State where they have taken place.
The specific categories of war crimes in the three statutes are discussed
under distinct headings. However, several issues concern prosecution of war
crimes generally. First, there must be an armed conflict. Second, a link or
nexus must be established between the impugned act and the conflict. Third,
the accused must be shown to have had knowledge of the armed conflict.
Existence of armed conflict
International humanitarian law applies to armed conflict and, to a limited
extent, in the period following armed conflict. The existence of an armed
conflict is therefore an element of prosecution for war crimes.
17
Atrocities
committed in time of peace may be prosecuted as genocide or crimes against
humanity, but they cannot fall within the scope of war crimes. In its first
significant ruling, the Appeals Chamber of the ICTY declared that
an armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State. Interna-
tional humanitarian law applies from the initiation of such armed con-
flicts and extends beyond the cessation of hostilities until . . . in the case of
internal conflicts, a peaceful settlement is reached.
18
These words have been repeatedly cited in judgments of the international
tribunals,
19
and are really beyond any debate.
The existence of an armed conflict might be viewed as a contextual element
for the prosecution of war crimes. Unlike the case of crimes against humanity
17
Kordic ´ et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 22; Furundzˇija (IT-95-
17/1-T), Judgment, 10 December 1998, para. 258.
18
Tadic ´ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 70. Also: Kunarac et al. (IT-96-23/1-A), Judgment, 12
June 2002, para. 56.
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 ˇkic ´ (IT-95-14-T), Judgment, 3 March
2000, para. 63; Krstic ´ (IT-98-33-T), Judgment, 2 August 2001, para. 481; Milos ˇevic ´
(IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 16.
WA R C R I M E S 229
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 first appear, however, especially
where non-international armed conflicts are concerned. Most States take a
conservative view of this, essentially arguing that what outsiders may view as a
civil war is actually nothing more than mild unrest. The consequence is
important, because once it is determined that there is armed conflict, an
evolving body of international humanitarian law becomes applicable. The
authorities note that the threshold for internal armed conflict and no conflict
at all involves an analysis of the level of intensity of the conflict and the degree
of organisation of the parties to the conflict.
21
Thus, armed conflict ‘suggests
the existence of hostilities between armed forces organized to a greater or
lesser extent’ which necessarily ‘rules out situations of internal disturbances
and tensions’.
22
Furthermore, ‘mere acts of banditry, internal disturbances and
tensions, and unorganised and short-lived insurrections’
23
as well as ‘terrorist
activities’ are ruled out.
24
Whether or not an armed conflict exists is an
evidentiary matter, to be determined at trial and not in preliminary 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 conflict, including
whether the conflict was international or non-international.
27
However, the
Security Council did not pronounce itself on the issue, leaving it for judicial
20
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 8(1).
21
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 619–621, 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. 603–604; 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.
230 J U R I S D I C T I O N
determination. But there has been little doubt that there existed a state of
armed conflict in Croatia in 1991,
28
in Bosnia and Herzegovina from 1992 to
1995,
29
in Rwanda in 1994,
30
and in Sierra Leone from 1996 until 2002.
However, prosecution of Kosovar Albanian nationalists for atrocities com-
mitted during 1998 and early 1999 has provided for considerable dispute. The
Dayton Agreement of November–December 1995 brought peace to the region,
and one that was enforced by a large international military contingent. The
Kosovo conflict began to heat up in 1998 but only became full-blown war
in March 1999, with the launching of NATO’s bombing campaign. The issue
that the ICTY will need to determine is at what point what were clearly
‘troubles and disturbances’ escalated into armed conflict. According to the
indictment in Limaj, ‘[n]o later than early 1998, after years of increasing
tension and violence, armed conflict commenced between Serb forces and
the KLA in Kosovo. This development was consistent with the KLA’s generally
militant approach of active, armed resistance to Serb rule in Kosovo.’
31
The
same issue is also being debated in the Milos ˇevic ´ 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 fighting force, that it controlled territory in Kosovo, and that there
was armed conflict of considerable intensity, the Trial Chamber dismissed a
challenge from the amici curiae who had argued that there was no armed
conflict in Kosovo until March 1999.
32
International or non-international armed conflict
That the laws of war govern internal as well as international wars has long
been recognised. One of the landmarks in the evolving law of armed conflict
is the Lieber Code, which was promulgated by President Lincoln as General
on 24 April 1863 with the intent that it apply to the Union armies during
the Civil War. However, the first international treaties on the subject were
applicable to those States that had ratified them, and their scope was clearly
confined to wars between States parties, that is, to international armed con-
flict.
33
The first humanitarian law treaties to contemplate non-international
28
E.g., Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 217.
29
Furundzˇija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 51–59 (between the
Croatian Defence Council (‘the HVO’) and the Army of Bosnia and Herzegovina (‘the
AbiH’)).
30
Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 561.
31
Limaj et al. (IT-03-66-PT), Second Amended Indictment, 6 November 2003, para. 4.
32
Milos ˇevic ´ (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004,
paras. 14–40.
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
WA R C R I M E S 231
armed conflict were the 1949 Geneva Conventions which, in common article
3, acknowledged the ambit of certain core norms to ‘the case of armed conflict
not of an international character occurring in the territory of one of the
High Contracting Parties’. The modest beginning of common article 3 led to
a more comprehensive treaty intended to apply to non-international armed
conflict, Additional Protocol II to the 1949 Geneva Conventions, which was
adopted in 1977.
When the ICTY Statute was drafted, in 1993, the prevailing view among
specialists was that international law did not contemplate individual liability
for war crimes committed during non-international armed conflict. The
International Committee of the Red Cross, in its contribution to the debate
on establishing the ICTY, wrote that ‘according to humanitarian law as it
stands today, the notion of war crimes is limited to situations of international
armed conflict’.
34
In a comment on the ICTY Statute in the authoritative
American Journal of International Law, Professor Theodor Meron (who was
subsequently elected judge and then President of the ICTY) expressed his
concerns that articles 2