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0521846579 - The UN International Criminal Tribunals - The Former Yugoslavia, Rwanda and Sierra Leone - by William A. Schabas
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 affirming 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 isthe 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 these unmanageable conflicts in the Balkans’, wrote Louise Arbour, who served as the Tribunal's Prosecutor from 1996 to 1999.5 The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY) was formally established by Resolution 827 of the Security Council, adopted without a vote by general agreement of the fifteen members on 25 May 1993. The Statute of the International Criminal Tribunal for the former Yugoslavia is annexed to Security Council Resolution 827.
Little over a year later, the genocidal massacre of hundreds of thousands of Rwandan Tutsis, witnessed at close hand by a peacekeeping mission mandated by the Security Council only months earlier, prompted the Security Council to establish a second international tribunal, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (ICTR). Based largely on the model of the ICTY, and initially sharing with it both the Prosecutor and the Appeals Chamber,6 the International Criminal Tribunal for Rwanda was created by Resolution 955 of the Security Council, adopted 8 November 1994; its Statute was annexed to the resolution. Rwanda, which by chance was serving a two-year term as one of the Council's ten elected members, voted against the resolution in order to express its discontent with certain provisions of the Statute.7
Following the creation of the ICTY and the ICTR, there were many calls for the establishment of other ad hoc tribunals by the Security Council. For example, in 1999 a group of three experts appointed by the Secretary-General of the United Nations proposed that the Council create an international tribunal to deal with crimes committed by the Khmer Rouge in Cambodia between 1975 and 1979.8 An International Commission of Inquiry on East Timor, established by the United Nations Commission on Human Rights, found ‘patterns of gross violations of human rights and breaches of humanitarian law’ and concluded that an ‘international human rights tribunal . . . to try and sentence those accused’ should be established.9 In June 2000, the Government of Sierra Leone requested that the United Nations participate in the establishment of an international tribunal to deal with the civil war in that country.10 In August 2000, warring parties in Burundi reached a peace agreement that called upon the government to request that the Security Council establish an international criminal tribunal.11 In March 2005, the United States of America presented a draft resolution to the Security Council calling for the establishment of an international criminal tribunal for Sudan.12
But aside from the Yugoslavia and Rwanda tribunals, the Security Council has balked at using its Chapter VII powers to establish additional ad hoc judicial institutions. Acting more cautiously, on 14 August 2000, the Council requested the Secretary-General to proceed with the negotiation of an agreement with the Government of Sierra Leone to establish an ‘independent special court’. Unlike the ICTY and the ICTR, the body was not to be created by resolution of the Council acting under Chapter VII, but pursuant to a bilateral treaty. Nevertheless, the Council asked the Secretary-General to consider whether the special court might also use the Appeals Chamber of the two existing ad hoc tribunals, a proposal that was rejected after stern protests from the presidents of those bodies. On 16 January 2002, an agreement was signed between the Government of Sierra Leone and the United Nations giving birth to the Special Court for Sierra Leone (SCSL).
These three ad hoc international tribunals, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone, created by the United Nations either through resolution of the Security Council or by treaty, are the subject matter of this book. Other United Nations initiatives, sometimes described as ‘hybrid courts’, have brought an international component to what remain essentially national prosecutions.13 In 1999, in both Kosovo and East Timor, so-called ‘executive missions’ established by the United Nations in order to exercise the basic attributes of government led to prosecution of international crimes – genocide, crimes against humanity and war crimes – in proceedings involving non-national personnel, including expatriate judges, sometimes serving alongside their national counterparts in mixed panels.14 Yet another dimension of this internationalisation of post-conflict15 criminal justice was reached when the United Nations negotiated an accord with the Government of Cambodia providing for ‘mixed tribunals’, composed of judges and prosecutors appointed by either the government or the United Nations.16 But these other ventures would seem to be significantly different from those of the former Yugoslavia, Rwanda and Sierra Leone in that they are not genuinely international bodies, although they have certainly been enriched by international law and by the active involvement of the United Nations. The Special Court for Sierra Leone is a close relative of the ‘hybrid tribunals’, but it is more accurately classified with the ad hoc tribunals because it is a creature of international law, not domestic law.
Neither the scale that the tribunals have reached, nor the time frame during which they have operated, could ever have been imagined when the first Security Council Resolution was adopted in 1993. By 2004, the United Nations ad hoc criminal tribunals consumed more than $250 million per annum, roughly 15 per cent of the total UN general budget. They have nearly 2,000 employees.17 This explains the relatively modest scale of the third institution, the Special Court for Sierra Leone, whose budget is a fraction of that of the other two institutions, and whose work is planned for completion within four or five years. Disturbed by the high cost and the size of the institutions, the Security Council has insisted on a ‘completion strategy’ to ensure that the ICTY and ICTR wrap up their work by 2010. But that is more than fifteen years since the ICTY was created, and compares rather strikingly with the historical model of the Nuremberg Tribunal, whose activities had been completed within fifteen months of its creation. To be fair to the new generation of international tribunals, their proceedings are necessarily more complex and lengthy because of the important due process guarantees imposed by modern international human rights law.
The three ad hoc tribunals fit within a constantly expanding universe of international criminal justice institutions, of which the centrepiece is the International Criminal Court (ICC). The Rome Statute of the International Criminal Court came into force on 1 July 2002, subsequent to the creation of the ad hoc tribunals. When the draft statute of the ICC was submitted to the United Nations General Assembly by the International Law Commission in 1994, the concept was very much that of a permanent counterpart to the ICTY, to act more or less on stand-by waiting for specific assignments from the Security Council. In the course of four years of negotiations, the architecture of the Court evolved somewhat. In its final form, the relationship with the Security Council is far less significant than had originally been proposed.18 It remains possible, however, for the Security Council to refer situations to the Court, pursuant to article 13(b) of the Rome Statute. On 31 March 2005, the Security Council referred the situation in Darfur, Sudan, to the International Criminal Court,19 in a sense opting for the ICC as an alternative to the establishment of yet another ad hoc body, and this despite the fact that three of the Council's permanent members have not ratified or acceded to the Rome Statute.
The ancestor of these developments, the International Military Tribunal at Nuremberg, stood somewhat halfway between national and international law. According to B. V. A. Röling, a distinguished Dutch jurist and judge of the Tokyo Tribunal, the Nuremberg and Tokyo tribunals were ‘multinational tribunals’ and not ‘international tribunals in the strict sense’.20 At Nuremberg, the victorious Allies had ‘done together what any one of them might have done singly’.21 But in 1993 it was the United Nations Security Council, acting in a sense as a world government, intervening in what had begun as an internal conflict within a sovereign State, although the declaration of independence by various constituents of Yugoslavia gave it an international flavour, to ensure that atrocities of which the principal victims were innocent civilians did not go unpunished. Professor Theodor <--
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 offenders to justice, and alluded to the 1943 Moscow Declaration that pledged to follow perpetrators of war crimes to the ends of the world.23 There was never any question at the time of using the institutions to help promote peace and end the conflict, for Germany (and soon Japan) already lay in ruins. Criminal prosecution was an accompaniment to military victory. And the word ‘reconciliation’, so fashionable today, never figured in this first experiment with international justice. The contrast with the ad hoc tribunals is most striking. The Security Council Resolution establishing the ICTY spoke of the continuing threat to international peace and security, noting that ‘as an ad hoc measure by the Council’ the establishment of a tribunal to prosecute persons responsible for serious violations of international humanitarian law ‘would contribute to the restoration and maintenance of peace’.24 The Resolution establishing the Rwanda Tribunal, adopted a year later, added that prosecutions would also ‘contribute to the process of national reconciliation’.25 The Statute of the Special Court for Sierra Leone took this a step further by specifically providing that the Court is to have jurisdiction over ‘leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’.26
The link with promotion of peace and security associates such judicial initiatives with the principles and purposes of the United Nations, and justifies the engagement of the institution as a whole and more specifically that of the Security Council. Evolving concepts in international human rights law have also played a role in the creation of the ad hoc tribunals, although the language in the constitutive documents is less explicit in this respect. The Vienna Declaration and Plan of Action, adopted in June 1993, that is, a month after the establishment of the ICTY, expressed its ‘concern [with] the issue of impunity of perpetrators of human rights violations’.27 The link between human rights norms and criminal prosecution is made through the duty to protect persons from violations of their fundamental rights.28 This has been transformed into a full-blown duty to prosecute, although the concept is only stated explicitly in one human rights instrument, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.29 Broad concepts of rule of law and transitional justice have been propelled to the centre of the United Nations agenda.30
Beginnings of international prosecution
As the law of armed conflict developed in the mid-nineteenth century, the idea that an international tribunal be established to prosecute breaches of humanitarian law first emerged.31 In 1913, a commission of inquiry sent by the Carnegie Foundation to investigate atrocities committed during the Balkan Wars used the Regulations annexed to the 1907 fourth Hague Convention as a basis for its description of war crimes.32 Following the First World War, the Commission on Responsibilities of the Authors of War and on Enforcement of Penalties established to examine allegations of war crimes committed by the Central Powers did the same.33 The Versailles Treaty actually provided for the establishment of an international tribunal to judge the German emperor, Wilhelm II, ‘for a supreme offence 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 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 Sèvres of 1920, which governed the peace with Turkey, also provided for war crimes trials.37 But the Treaty of Sèvres was rejected by Turkey, and was subsequently replaced by the Treaty of Lausanne of 1923, which contained a ‘Declaration of Amnesty’ for all offences committed between 1 August 1914 and 20 November 1922.38
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Table of ContentsPreface; Table of cases; Table of legislative provisions; List of abbreviations; Part I. Establishment of the Tribunals: 1. Creation of the tribunals; 2. The legitimacy and legality of the tribunals; 3. Sources of law; Part II. Jurisdiction: 4. Territorial, personal and temporal jurisdiction; 5. Subject-matter jurisdiction generally; 6. Genocide; 7. Crimes against humanity; 8. War crimes; Part III. Substantive and Procedural Aspects of Prosecution: 9. General principles of law; 10. Investigation and pre-trial procedure; 11. Trial and post-trial procedure; 12. Evidence; 13. Rights of the accused; 14. Punishment; Part IV. Organisation of the Tribunals: 15. Structure and administration of the tribunals; Bibliography; Index.