the hague tribunal between law and politics

Transcription

INSTITUTE FOR COMPARATIVE LAW
THE HAGUE TRIBUNAL
BETWEEN LAW
AND POLITICS
Edited by
Jovan Ćirić
Belgrade, 2013.
Institute for comparative law
Belgrade, Terazije 41
www.comparativelaw.info
[email protected]
THE HAGUE TRIBUNAL
BETWEEN LAW
AND POLITICS
Edited by
Jovan Ćirić PhD
Reviewers:
Prof.dr Oliver Antić;
Prof.dr Zoran Stojanović
Prof.dr Stanko Bejatović
500 copies
Printed by: GORAGRAF
Belgrade 2013
3
TABLE OF CONTENTS
EDITOR’S REMARK............................................................................................... 4
Boris Krivokapić
A SOMEWHAT DIFFERENT VIEW OF
INTERNATIONAL CRIMINAL COURTS ............................................................ 7
Milan Škulić
A VIEW OF ICTY AND ITS PLACE IN HISTORY ........................................... 56
Vladimir Čolović
ESTABLISHMENT OF ICTY – AN EXAMPLE OF
DISRESPECT FOR LAW AND ACTUAL FACTS ............................................ 120
Goran Petronijević
LACK OF PRINCIPLES IN THE APPLICATION OF
LEGAL STANDARDS IN ICTY OPERATIONS ............................................... 140
Marko Novaković
INTERNATIONAL CRIMINAL TRIBUNAL FOR
FORMER YUGOSLAVIA – GOTOVINA CASE ............................................... 154
Jovan Ćirić
WOULD THERE BE A TRUE RECONCILIATION
IN THE TERRITORIES OF THE FORMER YUGOSLAVIA
AFTER “THE HAGUE”? .................................................................................... 175
4
EDITOR'S REMARKS
It is very likely that many people who have held this the book in their
hands and read these lines will ask themselves the following questions: Who
needs this book in the first place? The world, which has never been
interested in the ICTY, or Serbia, which has known all this for a long time,
and which is tired of the ICTY? Or maybe some future historians researchers?
However, a hundred years form now, when those researchers will
have considered the events that surrounded the ICTY, they will brush it
away, recalling the medieval Inquisition, the witches and those burned at the
stake. And they will think to themselves that the sheer power has always
been stronger than law, that history is written by the winners, and that justice
is always that which is useful. Who then cares for the ICTY? The same
people who care for the witches, the Inquisition, and the burned at the stake?
Perhaps even museums would be created like those in the tourist areas in
Spain?
And then such museums would exhibit and explain how a man was
held in police custody for more than ten years, without being declared guilty
or innocent. Or, for example, they will tell a story of two generals who were
released from all liability, regardless that they had commanded the military
operation that forced 250,000 men, women, children, and the elderly to flee
from their homes to save their lives with just a swathed bundle in their arms.
Or about one (Serb) general who had been sentenced to 27-year
imprisonment, and then appealed, to be fully acquitted in the appeals
instance. Similarly as the two generals from the previous story. Naturally, it
has never even occurred to anyone from that court that these generals should
be paid compensation for having been locked up in prison when they were
innocent. On what kind of criteria is that based, and what kind of legal
certainty and predictability is this?
Perhaps only a handful will ask themselves, as we ask ourselves
today, what has this world come to, and what times have come that no news
can last for more than a week? What has this world become, both deaf and
blind to any sensation, to anyone’s misfortune, and to any injustice? Such a
world really does not need a book like this one, but such a world that
5
forgets within a day or two what happened the day before does not need any
books at all. What it needs is only mindless and superficial entertainment,
quiz and reality shows.
And what is a world without books and what is it like, a world where
books are not necessary? Books have already been burnt in history, and that
was usually followed by great evils. Today, the books are not burnt, today
books are merely forgotten, and that is often even worse fate than burning.
As the forgotten books might never have existed at all, no one sees them,
and no one remembers them. Meanwhile, the evil that lurks behind the
forgotten books does not have to be any lesser than the evil that lurked
behind the burned books. And maybe that is the reason why we wrote this
book, to save at least something from being forgotten. Regardless of who in
the world cares about the 21st century witches, burning stakes, and
Inquisition. Regardless of the fact that Serbia is tired of everything,
regardless that justice and law are written every time in smaller, and Politics
and the ICTY in bigger letters.
Naturally, when writing a book, one usually thinks that after that book
nothing will be the same as before, and is always mistaken and eventually
comes to realise that one book, or even a whole library of books, cannot
essentially change anything. The sun will still come out in the East and set at
the West, injustice will always prevail over justice, and the mighty and
powerful will prevail over both justice and injustice. What is the reason for
all this, one might ask. Wherefore all this, if and when we are aware that
almost nothing can be changed. Simply to let it all out, and save our souls.
After all, that is why books are written in the first place, that is why songs
are sung, and pictures are painted. So that one can get all that bitterness that
is accumulated when he looks around and sees all that injustice, violence,
and unlawfulness around himself out of the system. That is how and why
books, music, paintings, such as Edvard Munch’s “The Scream”, and such as
“Look Homeward, Angel,” were created, as a cry of a thirsty man in the
desert. Without that scream, without that cry, today we would still know
little about those witches, or the burning stakes, or the Inquisition, or
anything else. So let all who would read these lines roll their eyes, brush it
aside, put the book aside after these first lines, our job was to write it and
save our souls.
6
With that in mind, I would like to thank my colleagues Čolović,
Škulić, Krivokapić, Petronijević, and Novaković on their contributions in the
development of this book. I sincerely hope that their and my own bitterness
that was poured into this book will not be too bitter to make it indigestible. I
also hope that after reading this book the benevolent reader from the great
world would at least stop to think for a moment. If we succeed it that, then
we have achieved much more than we expected.
Jovan Ćirić, PhD
Director of the Belgrade Institute for Comparative Law
Prof. Boris Krivokapić, PhD
7
Full Professor, Faculty of Public Administration,
Megatrend University (Belgrade),
A SOMEWHAT DIFFERENT VIEW OF
INTERNATIONAL CRIMINAL COURTS
There is probably no person, even with elementary education, who has
never seen a statue or a drawing of Lady Justice (Iustitia in Latin), the
Roman goddess of justice. She is depicted with a set of scales typically
suspended from one hand, upon which she measures weather one is liable
and to what extent, and a sword in the other hand, which may be wielded
against the culprit.1 However, the most important detail is that she is wearing
a blindfold! Justice is blind! Justice must be equal for all! If that is not so,
there can be no justice! Selective justice is often the worst injustice!
This paper will attempt to provide a somewhat different, and to a
considerable extent critical view of the practice of the international criminal
courts to date. While we fully support the development of the international
criminal law and international criminal justice, and in fact to ensure their
faster and more coherent development, we will point out some disputable
moments that are often overlooked by many.
But before we can do that, for a better understanding of the overall
problem, we must also give a brief historical overview.
1
Having recognised that equity (justice) and law (lawfulness) are not always one and the
same thing, the ancient Greeks had two goddesses – Dike, the goddess of justice, and Themis,
the goddess of law, i.e., lawfulness. The Romans merged the two goddesses into one –
Iustitia.
8
A SOMEWHAT DIFFERENT VIEW OF…
I. HISTORICAL BACKGROUND
1. First Examples of Punishment of International Crimes
Any human community has a certain values, rules and mechanisms
(prohibitions, sanctions, etc.) ensuring their enforcement and sustainability.
The more developed and complex the community, the better formulated and
protected its rules tend to be in terms of their being covered by adequate
legal sanctions, including criminal law sanctions, as the most sever and also
the most efficient of sanctions.
This is true for any human community, and equally for modern states,
and what is usually known as the “international community”.2 The latter
pertains to the so-called international (human) high values and various routes
and ways to protect such values, i.e., punish those who violate or endanger
them.3 One of the ways is also the emergence and closer definition of
international crimes, as well as all that is used to bring the perpetrators of
such crimes to justice. Whereby specifying crimes, stipulating sanctions for
such crimes, pronouncing the sentences, and finally, their enforcement here
has the same function as that of the sanctions in general – preventive
(deterring potential offenders), punitive (punishment for committed
offences) and satisfactory (victim satisfaction, compensation of damages).
2
The “international community” is a widely used term, particularly in our time. It is used in
different occasions, for different needs, and with different aims, so that its real meaning in the
respective case can be understood only in the context in which it is used. Normally it means
all the countries in the world, and when it is used in a broader sense, in addition to countries,
it includes various international organisations and other elements (some nongovernmental
organisations, various humanist, pacific, liberation, and other movements, interest groups,
etc.). Therefore, this pertains to a sort of an inexplicitly defined “global society”.
With respect to the international community in its more narrow sense, it includes, as a rule,
the set of all subjects of international law only, i.e., primarily the set of all states and specific
(interstate, government) international organisations. To avoid confusion, this narrower set is
usually called the international law community.
3
For further details on international community see: Lapaš Davorin: Sankcija u
međunarodnom pravu, Zagreb 2004, and the literary sources listed therein.
9
The first norms on international law date back to ancient times.4
Namely, there is no doubt that we can speak of the international law norms
dating back from the foundation of the first states, and therefore the first
international relations.5 The international law norms emerged wherever there
were states that entered into mutual relations. It was simply not possible to
do otherwise.
In that context, that that we would call in today’s terminology the first
international crimes also emerged a very long time ago. It could be argued
even that the awareness that specific forms of behaviour are strictly
prohibited and that they have to be punished emerged simultaneously with
the phenomenon of mutual communication between the first organised
human communities.
Practically, from the beginning of time, piracy has been considered a
crime that affected the interests of the international community as a whole,
and that is why all states were authorised and encouraged to prosecute and
punish the perpetrators.6 Surely, even in the ancient times, there were
examples of punishment even in other situations, in which the rules of then
customary international law were gravely breached (e.g. breach of faith, i.e.,
other law-of-war perfidies). Finally, there is enough written evidence that
even in the ancient times, foreign and even enemy ambassadors were granted
4
In fact, its norms appeared necessarily with the very first contacts between the first
organised social communities. It differed greatly from the modern-day international law, but
it was also international law, however incomplete and imperfect. For further details about this
issue see: Krivokapić Boris: Međunarodno pravo – koreni, razvoj, perspektive, Belgrade
2006, pp. 9-42.
5
Here we have to agree with the famous Spanish classical scholar Suarez, who rightly noted
four centuries ago that: “Any state – kingdom or republic – is a whole in itself, and at the
same time, it is a part of that great community called the human race. No state alone can ever
be self-sufficient to that extent that it would not need any help, for any relations or association
with others for mutual benefits. States therefore need one law that would govern them and
lead them in such relations and in this great society.” Francois Suarez: Tractatus de legibus ac
Deo legislator, L- II. c. 19, no. 9. As quoted in: Nis Ernest: Poreklo međunarodnog prava,
Belgrade 1895, pp. 12-13.
6
Even in ancient times it was rightly noted: “Pirata est hostis humani generic” – “A pirate is
an enemy of the human race”. This maxim is attributed to Cicero, but the truth it speaks is
more important than who its author might have been. Ancient nations, and particularly the
Romans, viciously fought against the pirates. For further details see: Krivokapić Boris:
Aktuelni problemi međunarodnog prava, Belgrade 2011, pp. 642-647.
10
adequate immunity and protection, and those who hurt or offended an
ambassador were wither severely punished in their country or extradited to
the foreign country. There are many such examples, from various countries.7
Generally, while there is no doubt that throughout the history a huge
number of culprits got away unpunished, there is considerable evidence that
shows that the practice of punishing the most severe breaches of the
international law norms existed also to a greater or lesser extent throughout
the history. Thus, for example, it is known that as back as in the ancient
China, in accordance with the then norms of regional international law,
various sanctions were implemented, including criminal sanctions.8
There were many such examples, and it is quite clear that there was
many more that were left unrecorded, i.e., the information was lost in the
wars, fires, floods, and other turbulent historical events. After all, there are
sufficient written trails indicating individuals had to account for their foul
deeds, and specifically those that pertained to the most grievous crimes in
terms of international law. Moreover, the closer we come to this day and
age, such practice is more and more developed.
What is characteristic for a very long period of time (several centuries)
is that the sanctions to both domestic and foreign nationals were always
7
Thus, it is known that the Roman Senate convicted Saturninus to death for severely injuring
the ambassadors of the King Mithridates. Geršić Gl.: Današnje diplomatsko i konsularno
pravo, Belgrade 1898, pp. 104-105. This approach was confirmed inter alia by the Roman
jurist Sextus Pumponius (II cent.): “if anyone hurts an ambassador of an enemy country, it has
to be construed as a breach of people’s right, as the ambassadors are sacred.” As quoted in:
Левин Д. Б.: История международного права, Моscow 1962, p. 17.
Among other cases, there is a well-known case of the Lacedaemonians (Spartans) who had
thrown the ambassadors of the Persian Emperor Darius, who called them to surrender, down a
well, but later repented and regretted it so much that they sent two of their citizens
(volunteers) to Persia to expiate their country’s sins. However, Darius’s heir, Xerxes, let them
go home saying that “he will not be like the Lacedaemonians, who, by having killed the
ambassadors, broken and violated the rule recognised by all peoples” (italics by B.K.). As
quoted in Geršić Gl.: op. cit., pp. 104-105. What has to be noted here is that both the Spartans
and the Persians were aware of the general rule of ambassadors’ immunity, which was
recognised by all peoples, and that the breach of that rule requires a sever punishment.
8
See: Lapaš Davorin: op. cit., p. 194, and the literary sources listed therein.
11
pronounced by the national authority (the ruler, Roman Senate, etc.). There
were no international courts.
International courts in the real sense of the word did not exist even in
the centuries that are much closer to us. Even then, crimes that were based
on international law were prosecuted before a national authority (court) of
the respective state.
Inter alia, back in 1305, in England, William Wallance (modern
Scottish Gaelic: Uilleam Uallas) who, in accordance with the judgment,
waged the war to annihilation and spared “neither age nor sex, monk nor
nun” was tried in a regular court proceeding.9 Such examples could also be
found on other sides and in other times as well.10
What is common for all the abovementioned situations is that they
were tried in accordance with the international customary law, i.e., national
regulations based on the international customary law. Therefore, at that
time, generally, there were still no written documents (international
9
However, as this was a famous Scottish knight, soldier, and liberator who lead the rebellion
against the English occupation of Scotland, the question is weather he was tried an punished
(and subjected to horrible public torture before he was executed) for actual or alleged crimes,
or for being a staunch enemy of England and a possible example for other similar leaders.
This is even more true when one considers that he was convicted for treason – to which he
responded that he had never been a subject of England and therefore cannot be a traitor to
England. In 1995, a famous film Braveheart starring Mel Gibson was made based on the story
of this unusual man, born in 1270 and executed in 1305.
10
Some may note that in similar cases persons that ware punished for breach of internal law
norms, which specified the rule of war. Such view, however, assumes that the above norms
were respected by all peoples, in all ages, and that they were based, at least partly, on the
international law customs. For further details on international law customs see: Krivokapić
Boris: Običajna pravna pravila u međunarodnom pravu, Megatrend revija – Megatrend
Review 3/2012, pp. 35-81.
However, that is not unusual. Even today, states adopt their internal regulations to further
stipulate the matters stipulated by international law (e.g. they adopt laws that specify the
issues regulated under a binding international agreement).
Anyway, for examples of medieval and renaissance war orders and other regulations which
we could term in today’s terminology parts of humanitarian law, see inter alia: Meron
Teodor: Međunarodno pravo čovečnosti potiče iz davnina, Belgrade 2004, pp. 11-19, and
further on.
12
agreements) to stipulate explicitly specific international law crimes and
sanctions for such crimes.11
The second moment is even more important – the trials were held
before the national courts of those states. Even though these crimes were
based on international law, in those long-gone times, as far as it is known,
there were no international criminal courts. After all, there was no universal
international criminal court, and especially not that that would discharge its
functions on a permanent basis.
With that respect, this paper will attempt to give a brief overview of
the development of the international criminal judiciary. This is relatively
modern phenomenon that will, inter alia due to an increasing role of overall
globalization, only gain importance in the years to come.
2. THE FIRST INTERNATIONAL CRIMINAL COURT
The ideas about an international criminal court first appeared a
relatively long time ago.12 It is argued inter alia that the Roman Pope during
11
Here, naturally, we will not deal with the concept of international crimes and other related
issues, as that would move us away from the subject. For further information about this issue
see (in chronological order): Bassiouni Cherif: Introduction to International Criminal Law,
Transnational Publisher Inc., Ardsley, New York 2003, pp. 109-226; Đurđić Vojislav,
Jovašević Dragan: Međunarodno krivično pravo, Belgrade 2003; Kaseze Antonio:
Međunarodno krivično pravo, Belgrade 2005, pp. 49-152; Jovašević Dragan: Pojam, elementi
i karakteristike međunarodnog krivičnog dela, Strani pravni život 1-2/2005, pp. 277-297;
Stojanović Zoran: Međunarodno krivično pravo, Belgrade 2006, pp. 72-168; Krivokapić
Boris: Međunarodna krivična dela, in: Paunović Milan, Krivokapić Boris, Ivana Krstić:
Međunarodna ljudska prava, Belgrade 2010, pp. 366-375; Krivokapić Boris: Vrste
međunarodnih krivičnih dela, pp. 169-198, in: Sreto Nogo (ed.): XI.tematski međunarodni
naučni skup Udruženja za međunarodno krivično pravo Relevantna pitanja primene
međunarodnog krivičnog prava u nacionalnom pravu, Tara 6-10 June 2012; and the literary
sources listed therein.
12
For furhter information about various aspects of the development of international criminal
judiciary see: Bassiouni Cherif: op. cit., pp. 387-494; Kaseze Antonio: op. cit., pp. 385-427;
524-539; Meron Teodor: op. cit., pp. 204-211. Stojanović Zoran: op. cit., pp. 169-197; and
(in chronological order): Avramov Smilja: Međunarodno krivično pravo i Povelja UN, Anali
Pravnog fakulteta u Beogradu 5/1994, pp. 479-497; Stojanović Zoran: Međunarodni krivični
sud: sukob prava i politike, Jugoslovenska revija za kriminologiju i krivično pravo 1/1997,
pp. 23-28; Radulović Drago: Međunarodno krivično pravo, Podgorica 1999, pp. 39-51;
13
the Hundred Years War (1337-1453) also advocated the establishment of a
criminal court that would prosecute the perpetrators of the most serious war
crimes committed during the war.
The first international criminal court that prosecuted what we today
call crimes against humanity was the international ad-hoc criminal tribunal,
comprised of 28 judges from various Alsace, German and Swiss town-states,
which in 1474 convicted a knight to death (the bailiff of the occupied town
of Breisach am Rhein) for murders, rape, maltreatment, perjury, illegal
confiscation of private property, and other crimes committed by persons
under his command, at his orders, at the time before any animosities.13
Although it is entirely possible that during this period there were also
similar international criminal courts established elsewhere of which we are
unaware, it appears that two general conclusions are indisputable. Even
when international crimes were prosecuted, that was done almost without
exception before the national court of the respective state, which
immediately raises the issue of objectivity of such a forum. On the other
hand, the abovementioned other potential examples of international criminal
courts, unrecorded in history, were ad-hoc courts, which were established on
Кудрявцев В.Н. (ред.).: Международное уголовное право, Moscow 1999, pp. 205-216;
Лукашук И.И., Наумов А.В.: Международное уголовное право, Moscow 1999, pp. 82111; Kittichaisaree Kriangsak: International Criminal Law, Oxford Univ. Press, 2001, pp. 1727; Zolo Danilo: Invoking Humanity, London – New York 2002, pp. 102-132; Škulić Milan:
Istorijski osvrt na međunarodno krivično pravosuđe i osnovne odlike postupka pred stalnim
Međunarodnim krivičnim sudom, Prvi međunarodni naučni skup: “Relevantna pitanja
međunarodnog krivičnog prava”, Tara 2003, pp. 77-112; Škulić Milan: Međunarodni
krivični sud, Belgrade 2005, pp. 23-161; Nogo Sreto: Saradnja sa međunarodnim krivičnim
sudovima, Belgrade 2005, pp. 95-129; Ristivojević Branislav: Razvoj međunarodnog
krivičnog prava, Pravni život 9/2008, pp. 667-681; Bassiouni Cherif: Perspectives on
International Criminal Justice, Virginia Journal of International Law 2/2010,
www.vjil.org/wp-content/uploads/2010/01/VJIL-50.2-Bassiouni.pdf;
Krivokapić
Boris: Aktuelni problemi međunarodnog prava, op. cit., pp. 490-563.
13
Peter von Hagenbach, a knight, who was the bailiff of the occupied town of Breisach am
Rhein (today’s Germany) was found guilty for the abovementioned crimes committed at his
orders by the persons under his command. He was divested of his knighthood and condemned
to death. It did not help him that he defended himself by arguing that he was only following
orders of his master, Charles, the Duke of Burgundy. Thus, superiors’ orders defence was
repudiated even at that time. For further details see: Schwarzenberger Georg: International
Law as Applied by Courts and Courts, London 1968, pp. 462-466.
14
an ad hoc basis, without adequately developed material and process
international law rules, and which were comprised of judges who were quite
possibly honourable men, but not qualified enough for international crimes.14
3. THE SITUATION BEFORE WORLD WAR II
In the more recent history, Gustav Moynier, a Swiss, who abhorred
the atrocities committed by both the warring sides in the Franco-Prussian
War in 1870, proposed back in 1872 that an international criminal court
should be established to prosecute breaches of the 1864 Geneva
Convention.15 However, the proposal was not followed through.
The first serious attempt at establishing an international criminal court
occurred in the wake of the First World War, but it was not successful. The
winning sides demanded that an international court (“special tribunal”)
should be established, comprised of judges who would be appointed by the
USA, UK, France, Italy and Japan, authorised to try persons indicted for war
crimes, including the German Emperor Wilhelm II, for whom it was stated
in the Peace Treaty of Versailles (Article 227) that he committed “supreme
offence against international morality and the sanctity of treaties”.16
However, Wilhelm fled to exile in the Netherlands, which refused to
extradite him.17
14
One of the consequences of such general condition is the fact that in the abovementioned
case of Hagenbach, and most likely in other similar cases that we are not aware of, if any, the
range of possible sanctions was quite limited. If the court council would find that the accused
is innocent, he/she would be freed, and if he/she was found guilty, he/she would be
condemned to death.
15
The International Criminal Court, Amnesty International 1997, AI Index: IOR 40/01/97, p.
3. This pertains to the Geneva Convention for improving the fate of wounded and sick
soldiers during a military conflict (1864).
16
For further information see: Jovanović Jov. M.: Suđenje Viljemu II kao krivcu za Svetski
rat, Zapisi 4/1927, Cetinje, pp. 226-230, reprinted in: Lopičić Đorđe (ed.): Međunarodno
krivično pravo, Belgrade 2006, pp. 411-413.
17
The Netherlands cited that their Constitution did not allow for extradition solely based on
agreements, that the acts for which Wilhelm was prosecuted did not constitute crimes in
accordance with the Dutch law or the extradition agreements closed with the Allied and
Associated Powers, and that, in addition to all that, the national constitution did not allow for
15
The Treaty of Versailles (1919)18 stipulated the establishment of an
international criminal court to try the German state and military leaders
indicted for war crimes, but that did not occur. Although the winning nations
had demanded that out of some 21,000 war crime indictees only 895 German
and Austro-Hungarian state and military leaders should be arraigned,19 they
withdrew the request, and the list of indictees was reduced to only 45
persons (i.e., 5% of those originally requested to be arraigned, and a mere
0.21% of the total number of suspects!).20
As an additional concession to the German Government, the trial was
not held before an international court, but rather before a German court.
However, it turned into a mockery of a court proceeding. In fact, as a part of
9 trials held in Leipzig in 1921 (also known as the “Leipzig trials”), only 12
accused men were arraigned, and they were insignificant. In the end, only 6
of them were convicted and punished with minimum sentences, while the
remaining six were found innocent. During the trial and sentencing, the
accused received not only support, but also standing ovations from the
audience in the courtroom, and instead of being stigmatized as the villains
they were transformed in the German public into a sort of martyrs and
national heroes.21
In that way, this attempt at punishment before domestic courts of the
respective state ended in a fiasco. The attempt to bring to justice (before
extradition agreements closed to extradite a single person. As quoted in: Kaseze Antonio: op.
cit., footnote 386, p. 386.
18
The Peace Treaty signed on 28 June 1919 in Versailles by the allies and Entente Powers as
the winners in the World War I and Germany as the loosing side. It comprised 440 Articles
and one Protocol. The full title is Treaty of Peace Between the Allied and Associated Powers
and Germany. The full text is available at: The Peace Treaty of Versailles,
http://net.lib.byu.edu/~rdh7/wwi/versailles.html (13 February 2012).
19
The list of the main criminals included, in addition to the Kaiser (Emperor), other renowned
German political and military leaders such as, for example, the former Reich Chancellor
Betbmann-Hollweg, Chief of Staff of the German Army General E. Ludendorff, General Paul
von Hinderburg, and others. As quoted in: Kaseze Antonio: op. cit., p. 386.
20
The data is somewhat varied depending on the source, and in the literary sources it is
argued that the number of persons whose prosecution was demanded by the Allies was
slightly lower (894), i.e., higher (901). See: Bassiouni Cherif: Introduction to International
Criminal Law, op. cit., f. 23, p. 397.
21
After all, they were soon released from prison.
16
Turkish courts) those responsible in the Ottoman Empire also failed for
political reasons. After all, the Allies soon lost interest for this issue.22
In fact, as in the case of Germany, where inter alia Leipzig was
intended to curb the revolutionary feelings and the workers movement, in the
case of Turkey, political reasons and interest prevailed. More specifically,
Turkey was seen by the UK and France and other Western powers as an
important bastion and ally against the Soviet Russia and the growing
“Bolshevik”, i.e., “communist” threats, and therefore as a country that
should be treated with a certain dose of lenience. Once again the politics
prevailed over law and justice.23
In addition to all the above, the practice showed that even in those rare
cases in which justice was meted out by domestic (national) courts of the
respective states, those course were, as a rule, biased – and saw justice from
an entirely different angle!
That was confirmed by the trials of German soldiers in absentia, held
in France and Belgium. The trials were based on the provision of the Peace
Treaty of Versailles which guaranteed the Allies (the winning side) the right
to put on trial the loosing side soldiers for crimes based on violations of the
laws or customs of war. Unlike the Leipzig trials, these courts, trying in
basically similar criminal cases in term of matter, adopted a whole range of
convictions, including death penalty by hanging.24
Therefore, the practice only confirmed what could have been assumed,
and that is that in such circumstances national courts are almost always not
sufficiently unbiased. On one hand, they are not interested to lead criminals
proceedings against their citizens for crimes committed against foreign
nationals, i.e., even if such proceedings were initiated, they tend to justify
the accused or at least convict them for minor, and not for truly serious
crimes. That is followed naturally by admission of various attenuating
circumstances, pronouncing lenient sentences, i.e., conditional sentences,
22
The International Criminal Court, Amnesty International, 1997, cit., p. 3.
See Bassiouni Cherif: Introduction to International Criminal Law, op. cit., p. 399.
24
However, those sentences were not enforced. For further information about this see: Škulić
Milan: Međunarodni krivični sud, op. cit., p. 31.
23
17
etc. In contrast, those same courts, in materially similar cases, as a rule, had
no mercy for foreigners, particularly if they fought on the enemy’s side.
All that suggested that in such circumstances, meting out justice needs
to be entrusted to an (impartial) international court.25
Although the idea to establish a permanent international criminal court
or at least a special department within the Permanent Court of International
Law26 had existed in the period between the two world wars, the first
concrete steps were taken only in the wake of the World War II.
4. MODERN INTERNATIONAL CRIMINAL COURTS
After World War II, two famous, and as many argue, historical trials
against the main Nazi Germany and militarist Japan war criminals were held
in Nuremberg and Tokyo.27 Those trials received positively, and rightly so,
by the international public and in the scientific and professional literature.
In the meantime, other international criminal courts were established –
first the ad hoc international crime tribunals for the former Yugoslavia
(located in The Hague, the Netherlands) and Rwanda (located in Arusha,
Tanzania), which was followed by the establishment of a whole range of
criminal courts, and finally, the International Criminal Court.28
25
Considering that no real trials were held for the crimes committed during the World War I,
here we do not attempt to raise another very important problem, and that is a fact that the idea
was to punish only the crimes committed by the loosing side. There could be no question of
punishing the criminals on the winning side.
26
For further information see: Pržić Ilija A.: Međunarodni krivični sud, Arhiv za pravne i
društvene nauke 5-6/1939, pp. 504-509, reprinted in: Lopičić Đorđe (ed.): Međunarodno
krivično pravo, op. cit., pp. 414-418.
27
In addition to that, the winning nations prosecuted war and other criminals before their
national, i.e., occupation courts, but that is not so much of interest to us at this point.
28
For further details on the development of international criminal justice see: Krivokapić
Boris: Razvoj međunarodnog krivičnog sudstva, Strani pravni život 1-2/2007, pp. 39-61
Krivokapić Boris: Aktuelni problemi međunarodnog prava, op. cit., pp. 490-563. i tamo
navedenu literaturu. Also: Krivokapić Boris: Enciklopedijski rečnik međunarodnog prava i
međunarodnih odnosa, Belgrade 2010, headings “Međunarodni krivični sud” (pp. 543-546);
“Međunarodni krivični sudovi” (pp. 546-547); “Međunarodni tribunal za bivšu Jugoslaviju”
18
If we consider it from one angle, all that is a great progress for many
reasons, and only some of which will be mentioned below:
1) That allowed for justice to be satisfied in terms of the punishment
of the perpetrator of the most severe international crimes and a sort of a
satisfaction for the victims and their close ones;
2) The principle of individual criminal responsibility was established
and reconfirmed on every new occasion. The statues and other acts of these
courts are based on the principle that for every crime there is an individual
perpetrator with a name and a surname. In other words, the principle that a
nation as a whole cannot be responsible, and that only individuals are
responsible and should receive a fair punishment for their crimes;
3) This leads to another positive moments. Precise identification, trial
and punishment of individual perpetrators who committed the most serious
international crimes contribute to the reconciliation process between nations
and different ethnic, religious, and similar groups. Convicting the real
culprits gives satisfaction and the necessary dose of safety and self-esteem to
one side, while lifting the burden of the imposed collective guilt from the
other side;
4) The trials conveyed a strong political and preventive message. They
demonstrated the commitment of the international community not to stay
silent in future similar situations, i.e., its readiness to be engaged in the
future in a more agile way in terms of bringing the most serious international
criminals before international courts. This message is even stronger,
considering that already in the Nuremberg and Tokyo trials, and
subsequently in the trails before other international courts, even the highest
state and political officials from respective countries were tried;
5) From the aspect of the development of international law, it is
particularly important that the statutes of international criminal courts
stipulate and further specify the most serious crimes under the jurisdiction of
(pp. 555-557); “Međunarodni tribunal za Ruandu” (pp. 558-559); “Međunarodno pravosuđe”
(pp. 568-569); “Mešoviti krivični sudovi” (pp. 577-580); “Nirnberški proces” (pp. 658-659);
“Specijalni sud za Sijera Leone” (pp. 991-992); “Tokijski proces” (pp. 1068-1069), and the
headings referred to therein.
19
the respective court: aggression, war crimes, genocide, and crimes against
humanity;
6) Generally speaking, the trials contributed to the global public to be
informed about specific grievous crimes, but also about the international
criminal law and international criminal justice in general. That has in turn
contributed to increased support at the global level for the further
development of international criminal law and international criminal justice.
These positive moments are indisputable.
Moreover, more examples could be added to that. Thus, there is no
doubt that the development of international criminal law and international
criminal justice positively influenced the development of the relevant parts
of legislation in many countries. The practice of international criminal courts
should have had an encouraging and stimulating effect also on the practice
of the national courts in the matter of international crimes.
We could surely continue to list other positive effects of the practice
of international criminal courts to this date, but even these couple of
moments that have been described are enough to support the establishment
and development of international criminal courts.
In practically all textbooks and publications on this subject, the
Nuremberg and Tokyo trials are promoted as a triumph of international
justice and a cornerstone of the development of international law in this area.
And that is rightly so. After all, the fact the General Assembly of the United
Nations in its resolution 95, dated 11 December 1946, confirmed the
principles of the Statute and the Nuremberg court judgements as the
principles of international law shows that the Nuremberg trial and its
underlying principles had unlimited support by most of the countries in the
world.29 In other words, from that time onwards these principles are
29
These principles are known also as the Nuremberg principles. By confirming them as the
principles of international law, the UN General Assembly at the same time encouraged the
Commission for Codification of International Law to consider, as an issue of utmost
importance, plans for the formulation of such principles either in the form of a general
codification of crimes against peace and security of mankind or as a part of the International
Criminal Code. In accordance with that, the Commission prepared the Draft Code of Crimes
Against Peace and Security of Mankind (1954), in which it formulated the requested
20
indisputable and, as the principles of international law, binding for all. That
is not disputed.
Opinions about the ICTY and its Arusha twin are still fairly divided.
However, even in that case, the method of establishment of these bodies and
a whole range of other issues, which had caused heated discussions at the
time of the establishment of these courts, are no longer disputed.
Various criminal courts, which many people see as the only true
solution for numerous complex situations in the world are, at least at first
glance, even less disputed.
Finally, the establishment of the International Criminal Court was
received with a great deal of optimism, with a belief that a huge gap in
international law would finally be closed.
And that is all true. At least to an extent and at least at first glance.
However, nothing is ideal, and nothing comes without certain
omissions or flaws. International criminal courts are certainly not an
exemption in that respect.
Considering that the positive sides of the above international criminal
courts have already been dealt with extensively, and are actually praised in
principles, but the UN General Assembly did not adopt the Draft Code in the end, and only
acknowledged it.
The main Nuremberg principles include: 1) Any person who commits an act which constitutes
a crime under international law is responsible therefore and liable to punishment; 2) The fact
that internal law does not impose a penalty for an act which constitutes a crime under
international law does not relieve the person who committed the act from responsibility under
international law; 3) The fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible government official does not
relieve him from responsibility under international law; 4) The fact that a person acted
pursuant to order of his Government or of a superior does not relieve him from responsibility
under international law, provided a moral choice was in fact possible to him; 5) Any person
charged with a crime under international law has the right to a fair trial; 6) The crimes
hereinafter set out are punishable as crimes under international law: crimes against peace, war
crimes, and crimes against humanity; 7) Any form of complicity in the commission of a crime
against peace, a war crime, or a crime against humanity is a crime under international law.
21
many publications and other studies, this paper will address only one side of
this phenomenon that usually stays in the dark. More specifically, objective
assessment shows that not everything is as rosy as it is usually presented.
Consequently, not disputing the fact that international criminal courts,
in principle, presented and still present a great progress, and even success
from the aspect of international law and international justice, and also from
the aspect of brining different parts of the world closer, we will try to draw
attention to certain issues that are usually overseen or at least not given due
attention.
Therefore, this paper will focus on the weaknesses of the Nuremberg
and Tokyo trials, on (only) some of the weaknesses of international ad-hoc
tribunals and mixed criminal ad-hoc courts, as well as on the issues
pertaining to the work of the International Criminal Court identified until
now. We will particularly try to show that international justice, even though
it should be “blind”, i.e., equal for all, is unfortunately still too selective.
Based on the above observations, we will try to reach a critical
conclusion – not against international criminal justice, but in favour of its
improvement and equal importance for all.
II. NUREMBERG AND TOKYO TRIALS
After the World War II, the most important German and Japanese
criminals were tried before international military courts as a part of two large
processes – in Nuremberg (18 October 1945 – 1 October 1946) and in Tokyo
(29 April 1946 – 12 November 1948).
These two large trials against the most important World War II
criminals are considered a very important success of international judiciary.
In addition to fulfilling their main practical purpose – the punishment of
culprits, they had a long-reaching influence on the development of
international criminal law. The principles underlying these trials,
international crimes under the jurisdiction of these courts, and other issues
are embedded in the foundations of international criminal law to this date,
and no one disputes them.
22
If we consider it from the practical aspect, these trials set the
foundations for the establishment of modern international ad-hoc criminal
tribunals (the ICTY and the Arusha Tribunal), increasing number of mixed
criminal courts, and most importantly (although it still has to justify such a
qualification) – the permanent International Criminal Court.
In addition to that, the Nuremberg and Tokyo trials were not free from
serious flaws. This paper will draw attention to only some of them.
1. Independence and impartiality issues. – The Nuremberg and
Tokyo tribunals were not independent international courts in the true sense
of the word. Those were court bodies that acted as joint bodies of their
founding states - the big four winning powers, but not the international
community as a whole.30 Moreover, those were military, rather than civilian
courts. The judges were military personnel, subject to military discipline
within the armed forces of the stated that appointed them. That is why it
should be surprising, for example, that the prosecutors acted pursuant to the
order of states that appointed them.
2. Only a small group of alleged criminals. - Firstly, in both cases,
only a small group of alleged criminals was tried.31 Although such
30
The Nuremberg Tribunal was established under the London Agreement between four
winning powers (USA, USSR, UK, and France), dated 8 August 1945. The Agreement
stipulated the establishment of the International Military Tribunal to try the most important
German war criminals. The Statute of the International Military Tribunal, based on which the
Nuremberg trial was conducted, was adopted as an Annex to the Agreement.
On the other side, the Tokyo Tribunal was established under the Statute issued on 19 January
1946 by the Commanding General Far Eastern Army, American General Douglas McArthur.
Unlike the Nuremberg Tribunal, the Tokyo Tribunal has 11 judges, who were proposed by 11
allied powers that had been at war with Japan (Australia, Philippines, France, the Netherlands,
India, Canada, China, New Zealand, USA, USSR, and the UK). Each country appointed also
their prosecutor.
After all, neither of the two ad-hoc international criminal courts were established by a
representative international organisation (the League of Nations ceased to exist in the
meantime, and the United Nations were still not operational), nor even by a global conference
in which most, if not all, of the countries in the world would be represented. Instead of that,
the big four winning powers had the decisive role in all the aspects.
31
The outcome of the Nuremberg trial included 12 out of the total 22 accused men sentenced
to death by hanging (Göring, Keitel, Von Ribbentrop, Kaltenbrunner, Rosenberg, Frank,
Frick, Streich, Sauckel, Jodl, Seyss-Inquart, and Bormann - in absentia); 3 sentences to life
imprisonment (Hess, Funk, Raeder); 4 sentenced to between 10 to 20 years imprisonment
23
arrangement was in accordance with the Moscow Declaration (1943),
whereby the leaders of the three leading allied powers agreed that after the
end of the war the alleged war criminals should be returned to the countries
in which they committed their crimes and punished in accordance with the
laws of those countries, and that the international court should try only the
most responsible persons, some dilemmas still remain.32 In particular, a
major issue that is raised is weather all of those who were in the dock in
Nuremberg and Tokyo truly should have been there and, on the other hand,
weather all those who should have (and objectively could have) been in the
dock actually were there.
The very fact that 3 out of 22 (13.6%) indictees from Nuremberg
were acquitted speaks in favour of the fact that maybe not enough attention
was given to the selection of the accused, and that there were surely those
with greater, i.e., more certain, responsibility who were not brought before
the Nuremberg Tribunal. In addition to that, another issue that is raised is
weather all those who were sentenced to the most severe sentence (death by
hanging) actually deserved such punishment – here we refer to those who
did not directly have blood on their hands or did not issue orders to commit
crimes.
The other side of the coin is the fact that the Nuremberg trial was
intended to be only the first in a row. In other words, other German political
and military leaders were to be brought before the International Military
Tribunal, within new trials. However, due to the beginning of the Cold War,
the Allies were no longer unified and there were no new trials before the
(Dönitz, Von Schirach, Speer, Von Neurat), while 3 were acquitted (Schacht, Von Papen,
Fritsche). With respect to the Tokyo trial judgement, out of the total of 28 accused (including
members of government, diplomats, and military commanders), 7 were convicted to death by
hanging and executed (two former prime ministers and five generals), 16 were convicted to
life imprisonment, 2 to between seven and 20 years imprisonment, against one the trial was
suspended due to inability to stand trial, while two died during the trial. No one was acquitted.
32
And indeed, a large number of accused were processed and convicted before the national
courts of the respective states (both the winning and the loosing states), and a number of them
were arraigned before the Allies’ occupation courts.
For judgements of the Yugoslav national courts against German and Hungarian war criminals
see: Lopičić Đorđe N. ed.): Nemački ratni zločini 1941-1944 – presude jugoslovenskih vojnih
sudova, Belgrade 2009; and Lopičić Đorđe (ed.): Mađarski ratni zločini 1941-1945 – presude
jugoslovenskih sudova, Belgrade 2010.
24
International Criminal Court. Instead of that, the most important war
criminals were tried before the Allies’ occupation courts in Germany.33
3. Amnesty granted to a number of criminals. – Another much
more serious issue is weather many for whom it is known with certainty that
they are responsible for some of the most gruesome crimes or at least for
grievous war crimes were not brought to justice? More specifically, it is
known that the Americans granted amnesty to high-ranked German officers
and other important members of the Hitler’s evil machine in return for
special knowledge those persons possessed, and particularly in the area of
intelligence (especially intelligence against the USSR), military information,
rocket programmes, biological and other experiments performed on human
subjects, etc. That is why these persons did not have to account for their
crimes, which meant, at the very least, that individual benefits (of the state
that had seized such persons) were consciously put before the idea of
international justice.
It is well known that some German experts were transferred to the
USA and freed from any responsibility in return for service to their new
employer. The public is less aware that a similar practice existed also in the
occupied Japan. Inter alia, the members of the infamous Unit 73134 who had
been captured by the Soviets were convicted for use of chemical and
bacteriological weapons in China,35 while the members of the same Unit
33
Each Occupying Power (USA, USSR, UK, France) had the right to undertake all necessary
measures within its occupation zone to arrest alleged war criminals, and each commander was
authorised to appoint the court to try the accused in his zone. In the course of these trials (also
known as the Subsequent Trials), 185 persons were brought before the Allies’ occupation
courts, and 21 of them were convicted to death. These trials gained special importance as they
were a sort of a substitute for new trials before the International Criminal Court that were
never held.
34
The secret Japanese military unit that was active immediately before the onset and during
the World War II (1937–1945). It was responsible for the development and use of
bacteriological weapons, and performed various biological and other inhumane experiments
on human subjects. Approximately 10,000 war prisoners and civilians (Chinese, Koreans,
Mongolians and Russians, but also a number of Americans and Europeans) were subject to
those experiments, and some 3,000 of them lost their lives. In addition to that, the biological
weapons developed with the help of this Unit killed thousands of people in China (according
to some estimates, even 200,000).
35
In the trial held in 1949 in the Soviet city of Khabarovsk for manufacturing and using
biological weapons in China during World War II, 12 members of this unit were convicted.
25
lucky enough to be captured by the Americans were never brought before
the court, as the American Commander MacArthur granted them immunity
in return for information relating to biological weapons.36
To conclude – after World War II, justice was, unfortunately, selective
to an extent.
4. Punishment for membership in an organization. – The
Nuremberg Tribunal was authorised to classify certain organisations as
criminal organisations (the National Socialist Party leadership, Gestapo, SD
and SS were classified as criminal organisations), and the signatories of the
Statute of the Tribunal had the right to prosecute individuals solely on the
grounds of their membership to such organisations, even if the respective
individuals did not personally order or commit any crime. However, that
undermined the principle of individual criminal responsibility. A new form
of collective responsibility, and even objective responsibility, was
introduced, which was in contravention to the principles of international law
in this area.
5. Procedural weaknesses. – From today’s point of view, very
serious objections could be raised about whole range of issues relating to
indictment, argumentation and procedure.
With that respect, unlike the Nuremberg trial that did have certain
weaknesses, but the procedure itself was quite fair,37 many things in the
Tokyo trial were not right. Inter alia, with the explanation that in the warhorn Japan it was almost impossible to gather and translate all the necessary
documentation within a reasonable period of time, the Tokyo Tribunal was
practically given discretion to admit as evidence anything that it deems
probative means of proof.38 That resulted inter alia in the Tribunal admitting
36
Such information was important for the Americans as Unit 731 was a sort of a headquarters
for other units involved in research and use of biological weapons (Unit 100, Unit 516, Unit
543, Unit 773, Unit 1644, and others).
37
The trial in Nuremberg, in the heart of Europe, in 4 European and world languages, was
held under the watchful eye of the international public. A large number of evidence and key
documents that the Germans maintained with their intrinsic bookishness and did not manage
to destroy were presented, witnesses appeared, video materials were screened, etc.
38
Article 13/a of the Charter of the Tribunal states: “The Tribunal shall not be bound by
technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious
26
as evidence newspaper articles, while rejecting similar evidence presented by
the defence.
Leaving aside some other disputable moments, one cannot ignore the
fact that in both the cases (Nuremberg and Tokyo) there was no right to
appeal! The right to appeal is an integral part of practically any proceeding
that wants to be called legal. One should not even mention its importance in
criminal law matters.39 Therefore, the tribunals that prosecuted inter alia
grave breaches of human rights, transgressed at least partially some of the
fundamental rights of the accused, such as the right to appeal.
6. Crimes committed by the Allies. - The Nuremberg and Tokyo
tribunals were the courts of the winners that tired only the members of the
loosing side. War crimes were committed also by the Allies, but no one
accounted for them. On the contrary, many received medals and other
awards and recognitions for them.
More specifically, there is no doubt that the Soviets also committed
war crimes on their victorious path to Berlin.
With respect to the British and their approach to the Nazis, it is
enough to say that Winston Churchill strongly advocated the idea that the
most important German war criminals should be executed without trial, and
that Roosevelt and Stalin had great difficulty to convince him that an
international trial should be held to demonstrate to the entire world all that
the Nazis had done and how.
After all, the British and the Americans barbarically carpet bombed
German cities which did not have a concentration of military units or any
important military structures. With that respect, the horrific bombing of the
and non-technical procedure, and shall admit any evidence which it deems to have probative
value.” The full text of the Charter is available at: International Military Tribunal for the Far
East Charter, http://www.jus.uio.no/english/services/library/treaties/04/4-06/military-tribunalfar-east.xml (accessed on 13 February 2013).
39
This is confirmed also by the most important universal and regional instruments in this
matter, even though they were adopted a couple of years after these trials were finalized.
Thus, the most important legal sources in this field, the International Covenant on Civil and
Political Rights (1966) in Article 14/5 specifies: “Everyone convicted of a crime shall have
the right to his conviction and sentence being reviewed by a higher tribunal according to law.”
27
German cities of Hamburg (June 1943) and Dresden (February 1945) by the
British and the Americans is particularly infamous.40
Although it is know that various serious crimes can be attributed to the
winners (inter alia the Americans systematically bombed and destroyed
Japanese cities),41 at this point, it suffices to remind ourselves that throwing
atomic bombs on Hiroshima and Nagasaki could be qualified quite
justifiably as one of the most serious, if not the most serious, war crime and
crime against humanity in the history.42 Even though there were massive
causalities among the civilian population, which in accordance with the law
of war should not have been targeted, no one has even been punished for it.43
After all, the fact that inter alia German Admiral Dönitz was
convicted in Nuremburg for the submarine war waged by Germany,
violating, as the Tribunal found, the London Protocol (1936) is a testimony
of double standards. However, while in Nuremburg only the Germans were
on trial, the Allies did not refrain from using submarines against the enemy
commercial vessels either, as was confirmed in that same trial in Nuremburg
(in his testimony as a witness) by American Admiral Nimic.44
40
In eight days of incessant bombing of Hamburg, i.e., three days of causeless destruction of
Dresden, the Allies threw thousands of bombs on each city causing approximately 50,000
civilian casualties in Hamburg, and between 24,000 and 40,000 civilian casualties in Dresden.
41
It is argued that the American bombing of Tokyo on 10 March 1945 only caused, in
addition to huge numbers of wounded, approximately 100,000 casualties, which means that
there were more direct casualties than those caused by the atomic bombs!
42
After it became clear that Japan was loosing the war, the USA destroyed with atomic bombs
first Hiroshima (6 August 1945), and then also Nagasaki (9 August 1945). The consequences
were terrifying. While the exact number of casualties will never be known, it is argued that at
the moment of the explosion more than 85,000 people were killed in Hiroshima, and
approximately 36,000 inhabitants were killed in Nagasaki (which was hit by a more powerful
bomb, but the circumstances were more favourable for the population). It is argued that,
including those that dies in the following five years as a result of injuries and radiation, the
death toll in Hiroshima was 200,000, and in Nagasaki 70,000 people!
43
That was, probably, one of the reasons why, according to some testimonies, a high-ranking
officer from MacArthur’s staff stated that the Tokyo trial was the greatest hypocrisy in the
history of mankind.
44
Thus, for example, the UK announced on 8 May 1940 an order according to which all
vessels should be sunk at sight in the Skagerrak during night. After all, according to the
28
Therefore, notwithstanding all the positive sides of the Nuremberg and
Tokyo trials, even these couple of objections threaten to undermine
considerably the perceptions of these trials as the bright moments of triumph
of international justice and international criminal judiciary, which have been
built for decades.
III. MODERN INTERNATIONAL CRIMINAL COURTS
Even though, as we have seen, the Nuremberg and Tokyo trials were
far from perfection, a more or less understandable justification for that could
be argued. The actual inability to apprehend and detain all the most
important suspects; the need for the trials to be finalized within a reasonable
timeframe, while the memory was still fresh; difficulties in collecting
evidence in the war-thorn Europe and destroyed Japan; growing mistrust
between the Soviets and their Western allies; lack of an historical example
that could be used as a model for the organisation and work of these
tribunals, i.e., case flow; etc. – are just some of the facts that need to be
taken into account. Although they cannot justify certain omissions, that can
at least explain them to a certain extent.
However, how is the situation with modern criminal courts? Those
established by the international community or with the participation of the
international community, in the atmosphere of relative global peace, with
active and even decisive engagement of the United Nations and other major
international factors. Those courts should face much fewer weaknesses. But
is it so?
1. Ad-Hoc Tribunals
In more recent history, the UN Security Council adopted Resolutions
establishing international ad-hoc criminal courts (tribunals) to prosecute
those responsible for grievous violations of international humanitarian law
during the conflicts in the territory of the former SFR Yugoslavia (also
testimony by American Admiral Nimic before the Nuremburg Tribunal (23 May 1946),
during the war, the American submarines sank 1,914 Japanese commercial vessels. For
further details see: Krivokapić Boris: Enciklopedijski rečnik međunarodnog prava, op. cit.,
heading “Podmornički rat” (pp. 775-776).
29
known as the ICTY), i.e., Rwanda (Tribunal located in Arusha, Tanzania).45
Everything about these tribunals is more or less known. That is why this
paper will dwell only on some controversies, in an attempt to draw attention
primarily to certain issues that are of legal, rather than political nature.
The establishment of the tribunals and their work caused great
divisions in both theory and practice, ranging from full support of these
bodies to serious objections. Upon closer examination, it can be concluded
that the objections relate to three issues: 1) the way the tribunals have been
established, 2) specific arrangements, and 3) practice.46
1. Establishment
It is a common observation that the tribunals were established by a
body that was not authorised for that – the Security Council that had no
authorisation in that respect. The UN Charter does not contain even the seed
of the idea that one day the Security Council could establish criminal
courts.47
Furthermore, the tribunals were established as subsidiary bodies of the
UN executive body (Security Council), which undermined the principle of
judicial independence. How is it possible that a judicial body is established
45
Notwithstanding all the similarities, the Arusha Tribunal is not just a simple copy of the
ICTY, and it has many specificities. First of all, unlike the tribunal for the former Yugoslavia,
it was established not only with the approval, but at the request of the government of the
respective country (i.e., the new government established after the victory in the civil war by
the side that was also the victim of genocide). Another important characteristic is the fact that
the temporal, territorial and material jurisdictions of the Rwanda Tribunal are defined
differently than in the case of the former Yugoslavia. For further details see: Krivokapić
Boris: Međunarodni krivični tribunal za Ruandu, Jugoslovenska revija za međunarodno
pravo, 1/1997, pp. 73-89.
46
For further details see: Krivokapić Boris: Međunarodni krivični tribunali za bivšu
Jugoslaviju i Ruandu – pro et contra, Strani pravni život, 1-3/1996, pp. 43-55.
47
In a situation when the ICTY and the Rwanda Tribunal have been operational for the last 20
years, and when even the states that had initially contested these bodies accepted their
obligation to cooperate with them by adopting their internal regulations (laws) on cooperation
with the respective tribunal, it is certainly not our intent to reopen the issue of weather the
tribunals were established in a lawful manner. However, one cannot but remind one even
briefly of the unnatural way in which these bodies were established.
30
as a subsidiary body of the executive body?48 In that case, what is left of
judicial independence, without which there can be no fair judiciary, equal for
all?
Therefore, even though the tribunals are a reality that even the
countries that initially contested them were in the end forced to accept, the
terms and procedures for their establishment have always been disputable to
say the least. 49
2. Specific Arrangements
Many serious objections pertain to the specific arrangements of the
tribunals, imposed in practice.
We will list only some of the examples:
- it is unusual, to say the least, that these tribunals independently
develop and amend regulations governing the trials (rules, procedures, etc.).
Normally such regulations would be adopted by other authority that is not
involved in the implementation of those regulations;
- it is difficult to understand why the competencies of these bodies do
not include also prosecution of those responsible for crimes against peace; 50
- it is a major issue weather testimony of protected witnesses who
testify (in practice – against the indictee) is admissible by principle without
their identity established;
48
Is it even conceivable in a modern state that courts are subsidiary bodies of the executive?
Here we remind only about two disputable issues relating to the establishment of the
Tribunal. For other disputable issues see: Krivokapić Boris: Međunarodni krivični tribunali za
bivšu Jugoslaviju i Ruandu – pro et contra, op. cit., pp. 47-50.
50
Crimes against peace were not only tried by the Nuremberg Tribunal, they are also the most
severe international crimes that cause massive occurrence of other crimes in practice (inter
alia, war crimes can occur only in war times). After all, the UN Charter not only prohibits the
use of force, but also threat of the use of force in international relations, and in accordance
with the Rome Statute (1998) aggression has been put also under the jurisdiction of the
permanent International Criminal Court (it is further specified in the additional Article 8 bis,
adopted by the Assembly of States Parties at the session in Kampala in 2010).
49
31
- it does not appear a good arrangement to have the possibility of
granting amnesty to persons convicted by the tribunal depend on the country
in which the respective person serves his/her sentence (whereby persons
sentenced with the same sentence for crimes of equal severity are put in
unequal position only because they serve their sentence in different
countries);
- it is not best arrangement to have appeals handled again by the
respective tribunal (i.e., its appeals chamber); 51
- it is rather unexpected and in complete dissonance with the approach
adopted in modern legislation that indictees who are subsequently found
innocent (due to mistaken identity, lack of evidence, proven innocent, etc.)
have no right to compensation for the time spent in detention; etc.52
3. Practice
Based on the practice of the ICTY alone (leaving the Rwanda Tribunal
aside), one can observe that there are many things that point out that some
things are, to say the least, unusual.
Here we will not dwell on the doubts about this body’s impartiality,
which can be heard often and from various sides. With that respect, we will
not deal with the issue of the statistical and other comparisons of the
numbers of convicted persons by their ethnicity, with the fact that the highest
officials and leaders of FR Yugoslavia, Serbian and Republic of Srpska were
brought before the ICTY, but the leaders of other peoples and ethnicities
who were equally involved in everything were not brought before justice, to
say the least, which is difficult to explain.53 These issues have already been
discussed extensively, and they are well known to the public.
51
It is in the very nature of the appeals that it should be handled by a higher-level body, and
in any case by another body that is not the first-instance body. Only then the necessary
distance, and therefore impartiality in the case and the judgement, can be ensured.
52
For further details see: Krivokapić Boris: Međunarodni krivični tribunali za bivšu
Jugoslaviju i Ruandu – pro et contra, op. cit., pp. 50-53.
53
There is a myriad of documents, video recordings, testimonies against then political leaders
of other ethnicities in the former Yugoslavia, firstly Croats ad Bosniacs.
32
However, even if one disregards those issues, there are still many
other issues that point out that the practice of the ICTY is not satisfactory. A
couple of example will suffice.
1. Crimes committed by NATO forces (1999). – In accordance with
its Statute, at the time of NATO aggression against FR Yugoslavia, the
Tribunal was authorised to prosecute all crimes committed during that period
in the territory of the former Yugoslavia. Irrespective of who committed
them, which means that it included also the crimes committed by NATO
forces.54 Here we will not dwell on the issue of responsibility for the
aggression, as it is already known, it is not included in the crimes under the
material jurisdiction of the Tribunal.55 We will neither speak of other
grievous violations of international law either,56 or even of the large numbers
of incidental civilian casualties that are defined as “collateral damage”.57
54
For crimes committed by NATO during the 1999 aggression, with a specific breakdown by
type, place, time, and casualties, see: Krivokapić Boris: Ratni zločini izvršeni od strane
NATO-a tokom agresije na Jugoslaviju, Strani pravni život 1-3/2000, pp. 5-33.
55
It cannot be disputed that NATO’s attack on FR Yugoslavia was a classic act of aggression.
After all, it suffices to look up the definition of aggression in the UN General Assembly
Resolution 3314/1974 and the additional Article 8 bis of the Rome Statutes (2010 addition).
For further details see: Krivokapić Boris: Enciklopedijski rečnik međunarodnog prava i
međunarodnih odnosa, op. cit., heading “Agresija“, pp. 30-31.
56
See: Krivokapic Boris: NATO Aggression Against Yugoslavia as an Assault of
International Law, pp. 207-240, in: International Law and Interventionism in the „New World
Order“ – From Iraq to Yugoslavia, Madrid 2000.
57
Derived from Latin collateralis – collateral, parallel, additional, incidental. The term is used
in military terminology of some countries to denote civilian casualties and destruction of
civilian structures that occurred (allegedly) as an incidental consequence of military actions
(particularly long-distance actions such as bombing, shelling, etc.). It is implied that those
casualties and structures are not the intended targets of attacks (the intended targets being
enemy military forces and military structures), but they are accepted as inevitable incidental
consequence of military operations in a certain territory. Such rationale has been used quite
frequently in recent times by the leading world powers that tend to overuse their state-of-theart “smart” weapons (cruise missiles, laser-guided projectiles, etc.). Such weapons are
allegedly exceptionally precise, and allow the so-called clean targets and “surgical precision”
wars, without civilian casualties. However, the practice contradicts those arguments and
shows that even the most advanced weapons often miss the targets, usually with fatal
consequences for the civilians. In other words, in massive and long-lasting air-to ground
attacks (particularly from great height and distance, which is a growing tendency to maximise
33
We speak only about the undisputable war crimes, which include,
above all, the use of prohibited means of warfare. More specifically, during
the aggression against Yugoslavia, the NATO forces used, inter alia: 1)
means of warfare explicitly prohibited by international law (chemical
weapons, i.e., toxins);58 2) means of warfare whose use is limited by
international law, and explicitly prohibited against civilians (use of
inflammable material as weapon);59and 3) means of warfare that fall under
the protection of own forces) in many cases one could speak of non-targeted attacks, which
are prohibited by international law.
The term collateral damage was used frequently during NATO’s aggression against FR
Yugoslavia (1999) by the Alliance military officials and subsequently journalists to describe
and justify large numbers of civilian casualties and mindless destruction cased by highaltitude bombing. In the traditional competition for the ugliest word of the year, held in
Germany at the beginning of 2000, the term “collateral damage” (Kollateralschaden in
German) was pronounced the ugliest word in the previous 1999 (the year of aggression
against Yugoslavia) in the competition of as many as 1,063 words.
58
Although they did not use military toxins directly, the NATO forces launched a series of
indirect attacks with chemical warfare (toxins) by systematically destroying chemical
processing plants, industrial plants and oil refineries, primarily in the vicinity of Belgrade and
other large cities. These targets, whose serious damage would necessarily result in a release of
toxic substances and other hazardous agents
(their release into the atmosphere, soil,
underground waters, etc.) were attacked with great precision and repeated several times
(bombing the same target) so that there is no doubt that the above structures were targeted
deliberately. Targeting chemical plants is unprecedented in human history – even the Nazis in
the World War II refrained from attacking such plants and facilities, as is inevitable results in
the environmental catastrophe (irreversible pollution of air, soil and water, which are public
goods), in addition to mass human deaths.
More specifically, the destruction of the chemical and oil industry and the nitrogen processing
plant in Pančevo only (a small town in the immediate vicinity of the capital, Belgrade)
resulted in the release of large quantities of chlorine and nitrogen into the atmosphere, while
in the fire that was caused by a direct hit to the reservoir containing vinyl chloride monomer
phosgene was produced. Those are very dangerous gases (chlorine and nitrogen were
classified as military toxins in the World War I, and phosgene is considered even today as one
of most dangerous military toxins) and only auspicious circumstances (exceptionally
favourable weather conditions, specifically a wind rose that lifted the giant cloud with those
toxins to higher levels and pushed them further to the east) saved the population of Pančevo
and Belgrade from heavy contamination.
After the NATO aggression, Serbia recorded a drastic increase in the incidence of cancers in
populations.
59
Although the use of inflammable substances as weapons against civilians is expressly
prohibited, the NATO forces used inflammable bombs and projectiles in their attacks on
civilians and civilian structures, inter alia on a column of Albanian refugees returning back to
34
the general prohibition by international law as exceptionally inhumane
weapons, i.e., weapons that cause severe environmental damage (cassette
bombs,60 projectiles with depleted uranium, etc.).
In addition to the prohibited means of warfare, there is no doubt that
the NATO forces used also the prohibited methods of warfare, such as:
direct targeting of civilian populations,61 bombing civilian places and
their villages, on the Business Centre “Ušće“ in New Belgrade, on the Serbian Oil Industry
capacities and warehouses, etc.
60
Due to their unselective action and horrific injuries that they cause, these bombs fall under
the category of exceptionally inhumane weapons that cause unnecessary destruction and
human suffering, and that is why they are prohibited by international law. Furthermore, Joost
R. Hiltermann, Executive Director of the Arms Division of Human Rights Watch, a renowned
international organisation, stated on 12 May 1999 that NATO was obligated to respect
international humanitarian law and cease immediately the use of cassette bombs. NATO,
however, continued mass use of cassette bombs.
According to the data issued by the Yugoslav Ministry of Foreign Affairs, only in the period
between 2 March and 15 May 1999, the territory of FR Yugoslavia was hit with more than 60
cassette bomb containers, each containing approximately 240 cassette bombs (i.e.,
approximately 15,000 bombs in total), as well as with more than 400 separate cassette bombs.
In those attacks only (and cassette bombs were again on subsequent occasions, throughout the
aggression, until June 10) there were approximately 200 casualties, and more than 450
injured, with dozens of casualties succumbing due to the delayed effects of cassette bombs.
The above report of the Ministry (published inter alia in daily newspaper Politika on 18 May
1999, on page 18) provides a precise list of 79 cases in which the NATO forces used cassette
bombs (by date, place, time, casualties, etc.).
Here it suffices to remind one that the cassette bombs thrown on 7 May on the city of Niš (the
third largest Serbian city) killed 13, and injured 29 civilians. The bombs were thrown in broad
daylight (from 11:30-11:40 hours) when the streets were full of civilians, and they were
thrown in the vicinity of the Clinical Hospital Centre, and downtown, in the vicinity of the
open market and the central bus station (the very city centre). The NATO Headquarters tried
to justify it arguing that the target of the attack was not civilians, but the military airport in
Niš. However, that is unacceptable as the above airport is more than 20 km air distance from
the place of massacre! The airport is located west of the city, and the bombs hit the eastern
part of a large city. That this was not a misguided missile was confirmed also by the fact that
as many as three burdens containing large numbers of cassette bombs were thrown on the
city.
61
Not only did the NATO forces not refrain from attacking civilian targets, even when that
meant almost certain civilian casualties, in certain occasions, they also deliberately targeted
civilians (columns of fleeing refugees, civilian buses, trains, etc.), with the intent to cause
civilian casualties. Such conduct by NATO did not go unnoticed, and inter alia Human Rights
Watch, an organisation for the protection of human rights, addressed a letter to the NATO
35
structures, threatening civilian populations, non-targeted attacks, targeting
structures necessary for the survival of civilian populations (deliberately
causing mass and long-lasting power outages, and consequently water
supply shortages in households, etc.), destructions not justified by military
objectives, destruction of religious, cultural and historical monuments during
wartime,62 environmental destruction, targeting hospitals and ambulance
vehicles, blocking distribution of humanitarian aid, targeting journalists, use
of mercenaries and their recruitment, targeting persons parachuting from
aircrafts in distress, etc. After all, it suffices to remind one that the NATO
forces bombed the Serbian state television building (a classic civilian target)
killing 16 and injuring 18 journalists who were only performing their duty;63
that they deliberately targeted and destroyed 2 civilian trains and several
buses (together with passengers), that they killed approximately 200
Albanian civilians deliberately targeting columns of Albanians returning to
the places of their origin, that they deliberately targeted several hospitals,
Secretary-General Javier Solana on 13 May 1999, strongly objecting the bombing of
Yugoslavia, and focusing particularly on the intentional targeting of civilians and civilian
structures, by which “NATO violated all international norms and laws”. After all, that the
NATO pilots had orders to target civilians and civilian targets was confirmed by Spanish
Airforce Captain Adolfo L.M. de la Hoz, in his interview given to Spanish weekly magazine
“Articulo 20” (dated 14 June 1999).
See: Human Rights Watch Letter to NATO Secretary General Javier Solana, May 13, 1999,
https://groups.google.com/forum/?fromgroups=#!topic/misc.activism.progressive/f65n31_Tn
SQ (visited on 15 February 2013); Morales Jose Luis: Spanish Pilots Admit NATO Attacked
Civilian Targets, translated from Articulo 20 (Spanish Weekly), June 14 1999,
http://www.antiwar.com/spain1.html (visited on 15 February 2013); Human Rights Watch:
Civilian Deaths in the NATO Air Campaign, Human Rights Watch, February 2000, Vol. 12,
No. 1, (D), http://www.hrw.org/sites/default/files/reports/natbm002.pdf (visited on 15
February 2013).
62
The NATO bombs damaged, inter alia, a large number of cultural monuments, including
more than 50 Serbian churches and monasteries, but also religious structures of other
religious communities (Muslim, Catholic).
63
Their only sin was that they were broadcasting shocking pictures of the casualties of
NATO’s daily bombings, which included simultaneously 1,000 and more NATO aircrafts,
and sharing them with the world. The television building was targeted with intent to prevent
the information about what was really happening in Yugoslavia, and particularly the atrocities
caused by allegedly “surgically precise” NATO bombs, to reach the world public.
36
bridges,64 including those with large numbers of civilians,65 etc.66 Even if
one forgets all that (and it cannot be forgotten), the fact is that the strategic
bomber that bombed the Chinese embassy building flew in especially from
the USA! That was not only a civilian target, but also a diplomatic mission
of a third (neutral) country! 67
Although it was authorised, in accordance with its Statute, to
prosecute also the crimes committed by the NATO forces during their
aggression against FR Yugoslavia in 1999,68 the ICTY did not initiate a
single proceeding against the political leaders of the respective Western
countries or against military commanders and direct perpetrators from the
NATO forces.69
64
The NATO forces’ bombs and rockets destroyed or heavily damaged 57 bridges, including
7 large ones – over the rivers Danube, Sava, Lim, Ibar, Južna Morava, Zapadna Morava,
Nišava, Toplica, Rasina, Jablanica, Jesenica, Lab, Lopatnica, Moravica, Stari Begej, etc.
65
Inter alia, only in the attack on the bridge in Varvarin, on 30 May 1999, there were 11
civilian casualties, and approximately 40 injured civilians. The attack occurred in broad
daylight (between 13:05 and 13:15 hours) with 3 projectiles, on a religious holiday Pentecost,
when there were approximately 2,000 people (civilians) on the bridge and in its vicinity.
66
For a precise list of civilian casualties, and damaged and destroyed cultural monuments,
religious structures, educational institutions and other civilian structures, including the exact
names of structures and localities, and the description of the destruction see the White Book
of the Federal Ministry of Foreign Affairs: NATO Crimes in Yugoslavia I-IV, Belgrade 1999.
67
That this was a deliberate attack is confirmed by the fact that the Embassy was hit precisely
from as many as 3 directions alone. Although they initially insisted that that was a mistake,
the NATO officials later admitted that the Chinese Embassy was on the priority target list.
The outcome: 3 dead, 5 seriously injured, and several less seriously injured.
68
In accordance with its Statute, the temporal jurisdiction of the International Tribunal
extends to a period beginning on 1 January 1991 and lasts until such date that would be
specified by the UN Security Council upon the re-establishment of peace. The Security
Council adopted the so-called Exit Strategy only in 2003 (4 years after the NATO
aggression). After all, the Tribunal conducts trials against Serb officials and military and
police commanders for the alleged crimes committed in Kosovo during the war in 1999 war.
Therefore, with respect to the event that occurred during the 1999 NATO bombing campaign,
the temporal and territorial jurisdiction of the Tribunal is incontestable.
In personal sense, the Tribunal has jurisdiction over natural persons – irrespective of their
nationality! In other words, that includes also members of NATO forces.
69
A renowned nongovernmental organisation Amnesty International suggested in their Report
inter alia that NATO should establish a body for investigation of all the accusations relating
37
2. Same crime, different punishment. – In many cases, the sentences
in materially identical cases are drastically different, which is very difficult
to explain in principle. That creates even more concerns when only one
ethnic group members are imposed much more severe sanctions for basically
identical crimes, and particularly when members of other ethnic groups are
acquitted or only symbolically punished even when there are firm evidence
that grievous crimes that are under the competence of the Tribunal were
committed.
3. Mysterious deaths. – Several indictees of the highest rank,
including the former President of FR Yugoslavia, S. Milosevic, died under
mysterious circumstances in the Tribunal’s detention unit.70 Those were
almost without exception all Serbs.
4. Violations of indictees’ rights. – It is well known that in the
practice of the Tribunal there were cases when the indictees were forcefully
taken to The Hague (literally abducted), held in detention, treated as
criminals, only for mistaken identity to be established in the end. After that
they were released, but without any compensation for material and moral
damages suffered.
Although one of the fundamental human rights of indictees is the right
to trial without undue delay,71 some trials go on for years. The most famous
to breaches of international humanitarian law, that NATO members must bring before justice
all their nationals who are allegedly responsible for grave breaches of international
humanitarian law, that other states should conduct criminal investigations in order to
prosecute all those responsible for grave breaches of international humanitarian law, and that
(nota bene!) “The International Criminal Tribunal for the former Yugoslavia should
investigate all credible allegations of serious violations of international humanitarian law
during Operation Allied Force with a view of bringing to trial anyone against whom there is
sufficient admissible evidence.” Amnesty International: NATO/FEDERAL REPUBLIC OF
YUGOSLAVIA „COLLATERAL DAMAGE OR UNLAWFUL KILLINGS? Violations of
the Laws of War by NATO during Operation Allied Force, Amnesty International June 2000,
AI Index: EUR 70/18/00, at 4/ 8-11, pp. 31-32. www.friwe.at/jugoslawien/archiv/ai.pdf
(visited on 15 February 2013).
70
Inter alia, Milan Babić allegedly succeeded in committing suicide by hanging himself even
though the cells were under 24 hour video and other types of supervision.
71
One of the basic rights of indictees, guaranteed by both international law and internal
legislation of all modern states, is the right to trial without undue delay. At the universal level,
this right is guaranteed in Article 14/3/c of the International Covenant on Civil and Political
38
example is the trial of Vojislav Seselj who has been held in the ICTY
detention unit since 23 February 2003. Even now, at the middle of 2013 (and
therefore, after more than 10 years!) there are no clear indications as to when
the proceeding against will be finalized.
One has to ask oneself how is it possible that the Nuremberg trials
against 22 indictees, which were complex for many reasons, and which was
by the way held in 4 languages lasted just under a year, and that a trial of just
one man, with all sorts of technical innovations and aids at disposal, can go
on for more that 10 years already (!), without a clear indication of when and
whether it will ever be finalized? By the way, the Seselj trial does not last
this long because an endless number of newly/discovered evidence needs to
be presented, but because long periods of time are allowed to elapse without
actually anything happening due to inaction by the prosecution. Such
approach may result in someone being detained (and factually punished) for
10, 15, 20 years, or why not for life, without actually ever being convicted
(as there are no evidence – if there were any evidence, he/she would easily
be convicted). But, in that case, that constitutes the most grievous breach of
human rights and, what is particularly degrading, not by a backward regime
or dictatorship, but by an international court, established by the
United
Nations! At the same time, since this is a criminal court, by it very
definition, it is obligated to ensure the indictee’s rights are respected!
Similar objections could be made against the Arusha Tribunal as well.
With that respect, the latest news is that a group of indictees including the
former Minister of Rwanda, Pauline Nyiramasuhuko, were convicted after a
10 (ten!) year trial!72 After all, The Tribunal for Rwanda showed some of its
weaknesses immediately at the beginning of its operations – it was publicly
reprimanded for chaos, corruption, nepotism (employment of unqualified
friends and relatives), financial fraud, discrimination against Caucasians,
Rights (1966), and in Europe in Article 6 of the European Convention on Human Rights
(1950). For further details see: Paunović Milan, Krivokapić Boris, Krstić Ivana: Međunarodna
ljudska prava, Belgrade 2010, p. 198.
72
As quoted in: Prva žena osuđena za genocid, “Politika” from 25 June 2011, p. 3.
39
etc., which relatively soon led to resignations of several top-level officials of
the Tribunal.73
2. Mixed Criminal Courts
As it has been proven that national courts are usually biased, and that
international ad-hoc tribunals have multiple weaknesses, recently, attempts
have been made for meting out justice to be entrusted to various forms of
“mixed”, i.e., “hybrid” criminal courts.
That is the collective term used for various mixed judicial bodies,
staffed by a mixture of international and domestic judges, prosecutors, and
other staff, and typically characterized by a mix of other national and
international components (legal acts on establishment, the law underlying
the trials, financing, etc.). Such courts are sometimes referred to as secondgeneration criminal courts created under UN auspices.74
The practice recognises three main forms of these courts, including: 1)
domestic courts with international (foreign) staff (e.g. such as those in
Kosovo and Metohija, i.e., Bosnia and Herzegovina); 2) internationalized
domestic courts (e.g. such as those for East Timor and Cambodia) or 3)
internationalized mixed courts (e.g. such as those for Sierra Leone and
Lebanon).75
Many argue that the role of mixed (internationalized) criminal courts
will be increasingly important in the future. That is due to their undisputable
advantages over other criminal courts – they ensure that justice is satisfied,
preventing, at least to an extent, the problems that may occur in the work of
ad-hoc international criminal tribunals. Upon closer examination, their
relative advantages are obvious: ensuring the necessary conditions for
73
For further details see: Krivokapić Boris: Međunarodni krivični tribunal za Ruandu, op. cit.,
p. 87.
74
Besides, as it can be expected, the ad-hoc criminal tribunals for the former Yugoslavia and
Rwanda are considered first-generation courts established by or with the help of the United
Nations.
75
For further details about these courts see: Krivokapić Boris: Enciklopedijski rečnik
međunarodnog prava i međunarodnih odnosa, op. cit., headings “Mešoviti krivični sudovi”
(pp. 577-580); “Specijalni sud za Sijera Leone” (pp. 991-992).
40
impartiality and generally high level of adjudication (thanks to international
presence) while preserving the sovereignty, and in some cases also the
national pride in the respective state;76 focusing on specific events relating to
a specific country in the specified period, which is crucial for efficiency
(primarily in terms of collection and analysis of evidence) and
harmonization of practice; respect of internationally accepted standards
(which should be guaranteed by the involvement of the international factor)
and domestic legal traditions (which is contributed by local judicial
structures); when they are established for countries that have just ended
bloody internal armed conflicts, i.e., that have just overthrown atrocious
totalitarian regimes, as was the case until now, these courts should, in
addition to satisfying justice, contribute more efficiently then any other
judicial bodies to national reconciliation and reconstruction of the respective
societies; etc.
However, while they do have their indisputable advantages, mixed
(hybrid) courts also face multiple challenges and problems. Those include
inter alia:
1. Ad-hoc character. – In fact, these courts are all ad-hoc courts,
which means that their mandate is limited in some way or other – they
prosecute only the events that occurred in a specific territory and crimes that
occurred in a specific period (which does not have to be and sometimes is
not specified adequately), and normally only one circle of criminals
(normally those identified as the most responsible persons, although that
classification can be disputed), etc. If, for any reason, all the pieces of the
puzzle are not combined in the right way, the operation of these courts may
easily go out of control and evolve into a sort of selective justice, threatening
to undermine not only the practice of these courts, but also the concept as a
whole.
2. Weak media presence. – One of the flaws that is not always
obvious at first sight is a relatively weak media presence of these courts –
their performance reports are present in the media only sporadically and are
76
As these courts are not imposed from outside as ad-hoc tribunals, but rather reflect the
agreement between national authorities and the UN, i.e., other representatives of the
international community.
41
usually rather superficial.77 That inter alia indicates a rather weak public
control of what goes on between the walls of these courts.
3. Financing. – The method of financing is also problematic, as it
depends to the greatest extent on weather the respective state is willing and
able to finance the court operations and/or weather and to what extent are
other countries willing to finance it, and that is something that should not be
relied on with respect to such serious issues. After all, the co-financing of the
court by other states raises the issue of their true motivation: it is inherently
understood that a far better arrangement would be to have the court financed
by the international community represented by the United Nations or at least
a relevant regional organisation.
4. Mutual differences. – Although they are all referred to under the
same term (mixed, hybrid, etc., courts), these bodies are separated by large
mutual differences. Those differences are considerable and relate to court
establishment and organisation, legal principles underlying the trials, etc., as
well as on the way in which the material, territorial, temporal and other court
jurisdictions are defined, the place and role given to the international factor
(dominant or subsidiary), etc. Although all that could be construed as an
attempt for each court to be adjusted as much as possible to the unique
demands of the situation for which it is established, there is no doubt that
such diversified practice makes, to a considerable extent, more difficult the
adoption of certain generally accepted standards that could be used for the
evaluation of impartiality and performance of these bodies, and which could
in turn be used in new situations.
5. Reserved for small countries. - All mixed courts to date have
been established exclusively for the countries in development, i.e., small
countries, particularly those additionally weakened in the wake of difficult
internal armed conflicts. It is inconceivable for many reasons that a similar
court would be established for one of the major powers. But that brings us
back to the previously identified problem, and that is that that implies that
the sword of justice is brought only upon the members of those nations that
77
They usually boil down to brief statements that a new president of the court has been
appointed or that some of the most important indictees have been captured or sentenced – but
without any systematic monitoring of the court activities.
42
are not strong enough to resist it. In that case, that is not justice, but a trial of
strength. And those are two completely different things.
3. Permanent International Criminal Court
The advanced portion of mankind followed the process of the
establishment of the International Criminal Court with a great deal of
optimism and hope.78 Many were surprised, and positively so, to see that in a
relatively short period of time (from 1998 to 2002) more that 60 ratifications
of the Rome Status were collected, which was a condition for its
effectiveness. That raised further the expectations in terms of this Court,
which is, for more reasons than one, an institution of historical importance.
After all, all other international criminal courts are ad-hoc courts, i.e.,
established for specific cases only. This is the only real, permanent
international criminal court.
It is of great importance that the Rome Statute confirmed that the most
serious international crimes were a) crime of genocide, b) crimes against
humanity, c) war crimes, and d) aggression, stipulating also the possibility
for the list of crimes under the jurisdiction of the Court to be expanded with
subsequent amendments. Furthermore, while the Rome Statute uses already
well-known and accepted definitions of genocide and aggression,79 crimes
against humanity and war crimes are defined in a new, more substantial way.
These crimes are extended, and the crucial element is that the Statute does
not differentiate between armed conflicts of international character and
internal armed conflicts, which were previously differentiated in
international law. In other words, the Court’s jurisdiction includes also
respective crimes that occurred during internal armed conflicts.
78
Further details about the Court and its work are available at the web site of this institution:
http://www.icc-cpi.int/. Also: Krivokapić Boris: Enciklopedijski rečnik međunarodnog
prava i međunarodnih odnosa, op. cit., heading “Međunarodni krivični sud“ (pp. 543-546).
79
Genocide is defined in the same way as in the Convention on the Prevention and
Punishment of Genocide (1949). With respect to crime of aggression, it was not defined in the
original text of the Rome Statute, but that was later corrected at the session in Kampala
(Uganda) on 11 June 2010, by adopting the definition which basically corresponds to those in
the UN General Assembly Resolution 3314 (1974).
43
The fact that the Rome Statute was ratified, as of 15 February 2013,
by as many as 121 States is of special importance.80 It can be expected, and
rightly so, that the number of its parties will grow in the years to come.
However, it suffices to examine this body more closely to realise that
even there not everything is as good as it may seem at first glance.
1. Role of UN Security Council. – First of all, although it is closely
connected to the UN, the Court is not a part of the UN system. That is
understandable to an extent, if it is taken into account that (at least for now)
not all members of the UN have accepted the compulsory jurisdiction of the
Court, and that the USA are strongly against it.81 However, it is difficult to
understand arrangements that give some very important competencies
relating to the Court and its trials to the Security Council.
Therefore, how should one understand that the executive body of an
international organisation, even if it is the United Nations, has available very
important mechanisms that it can use to directly influence the work of an
international court, which is in accordance to its statute an independent
international body? And not just on the work on any international court, but
an international criminal court!
80
For
the
list
of
parties
to
the
Rome
Statute
see:
http://www2.icc-
cpi.int/Menus/ASP/states+parties/ (15.2.2013).
81
The USA turned from the strongest advocate of international (ad- hoc) criminal courts into
the strongest adversary of the permanent international criminal tribunal. The main objections
of the US Government are that the work of the Court could endanger the national sovereignty
of the country, and on the other hand, there is a fear from politically motivated trials. Their
opposition is manifested in many ways: withdrawing the signature of the Court’s Statute
(2002), threats of blocking the work of the Security Council, closing bilateral agreement with
a number of states on non-extradition of American citizens to the Court, and even the
adoption of a separate law (American Service Members’ Protection Act, 2002) stipulating
inter alia prohibitions on the US providing military aid to countries which had ratified the
Rome Statute (with possible exemptions) and authorizing the US President to use military
forces to bring about the release of any US military personnel being detained by the Court.
We leave it to the reader to imagine how the international community would label it, and what
would practically happen to a small country if it attempted to do what the US Government
did.
44
The Security Council’s authorisations relate primarily to the right of
the Council to initiate proceedings before the Court. However, is it even
conceivable that a government in a modern state through official channels
initiates a criminal proceeding? Would that not be executive interference in
the judiciary? How would such a country be labelled? Why should then such
a solution be acceptable at the international level?
On the other side, why should the states that refuse to ratify the Rome
Statute (and those are, at least at this point, first of all three big powers and
permanent members of the Security Council – the USA, Russia, and China)
have the right to decide on any matter under the jurisdiction of the Court at
all? That, however, is not enough. And to remind one, those three states are
permanent members of the Security Council with the so-called veto rights.
Anyway, even if one accepts, respecting the specificity of
international relations, that the Security Council personifies the international
community, and as such should have a possibility to initiate criminal
proceedings whenever it deems it is justified, we are not sure that it is a good
solution that, in that case, no special conditions apply (unlike the cases when
investigation is initiated by a state party or the prosecutor himself/herself).
However, even if one were to go over all the above mentioned, from
the legal point of view, the solution in Article 16 of the Court’s Statute,
according to which the UN Security Council, acting in accordance with
Chapter VII of the UN Charter, has the right to request from the Court that
investigation or criminal prosecution is deferred for a period of 12 months, is
completely grotesque. This is a completely political arrangement, which
opens room for big powers to avoid criminal prosecution of their citizens
before the Court, even if they did become parties of the Roman Statute. This
becomes even more clear if one takes into account that the Security Council
may resubmit their request under the same conditions.
2. Material jurisdiction. – As it can be easily observed, the Court’s
material jurisdiction is in fact limited only to those international crimes that
were under the jurisdiction of the Nuremberg and Tokyo tribunals.82 A major
82
Truth be told, the Rome Statute singles out genocide as a separate crime, but there is no
much difference in terms of substance, as genocide was punished also in the Nuremberg and
Tokyo trials, although as a part of a crime against humanity. To remind one, genocide has
45
issue that is raised is why this list was not immediately extended to include
some other crimes? Even if a certain level of reservation on the side of states
in terms of terrorism can be understood,83 that still does not explain why the
Court’s jurisdiction does not include one of the oldest international crimes –
piracy? Or why it does not include such indisputable international crimes
such as trafficking in human persons, crimes against persons who enjoy
international protection, illicit traffic in narcotic drugs and psychotropic
substances, etc.?
3. Practice. – The abovementioned and some other disputable
arrangements could be construed as necessary compromises, as inevitable
leeway to indulge the caprices of the big powers in order to achieve the final
goal – the establishment of the first real international criminal court. All that
with the idea that the disputable arrangements would later be improved (by
raising confidence on the side of the states), which would be contributed also
by Court itself and by its impartial and consistent practice that allows no
exceptions.
Unfortunately, the Court’s practice to date does not inspire any
confidence! Battles are being fought all over the world and terrible crimes
are being committed, yet, from the beginning of its operations (2003) to this
date (first half of 2013) the Court has satisfied itself with initiating trails for
the crimes that occurred during the armed conflicts in only 7 countries:
Uganda, DR Congo, Central African Republic, Sudan (Darfur), Kenya,
Libya and Ivory Coast! With that in mind, it is simply inconceivable that all
the 7 countries are – in Africa! Is in other continents everything just fine?84
Is it really possible that only Africans commit genocide, war crimes, crimes
against humanity, and also aggression? It is understandable by itself that it is
not possible.
been introduced as a separate crime only in the Convention on the Prevention and Punishment
of Genocide (1948).
83
Everyone condemns it, and everyone agrees that is should be punished, that is not
disputable. The problem is, however, that, in practice, states sometimes perceive the
perpetrators of same actions as terrorists, and other times as freedom fighters, depending on
their own political stand in the respective situation.
84
http://www2.icc-cpi.int/Menus/ICC/Situations+and+Cases/ (6 February 2013).
46
Without further considerations (of the crimes committed by different
sides during the armed conflicts in Iraq, Afghanistan, Egypt, Mali, etc.), it
suffices to note that the NATO forces (at least based on the information from
the media) committed undoubtedly a series of crimes against the civilian
populations in Libya. And the Court initiated proceedings only against then
“Libyan leader”, now deceased Muammar Gaddafi, his son Saif al-Islam
Gaddafi, and his brother in law Abdullah Senussi!85
However, based on the information that came out to the public, it
appears that there is sufficient evidence that NATO in Libya targeted not
only military, but also civilian targets and killed large numbers of civilians.86
After all, even the NATO officials themselves were forced to admit on
several occasions that the Alliance’s bombs and missiles killed civilians. A
considerable number of innocent civilians were killed also by the insurgents.
Why has the International Criminal Court not opened at least the
investigation into what really occurred and still occurs in Libya, and are the
insurgents, and particularly the NATO forces also responsible for some
crimes under the jurisdiction of the Court?
This example is for illustration purposes only. Similar issues could be
raised in many other situations.
IV. INTERNATIONAL CRIMINAL JUDICIARY
– A SERVANT OF JUSTICE OR A POLITICAL INSTRUMENT?
All the above leads to the following conclusions:
1. Multiple oversights. – All international criminal courts to this date
had, i.e., have their intrinsic weaknesses. There has never been an
international criminal court without serious flaws.
85
After the death of Colonel Gaddafi, the Pre-Trial Chamber of the Tribunal formally closed
the trail against him. His son and brother in law are in Libya where they are on trial.
86
According to the claims by then Libyan Ministry of Health, as of middle of June 2011,
NATO was responsible for killing more than 800 Libyan civilians. See: NATO acknowledges
civilian casualties in Libya, 20 June 2011, http://rt.com/news/nato-admits-civilian-deaths/
(visited on 15 February 2013).
47
With that in mind, even if some oversights and problematic solutions
in Nuremberg and Tokyo could be justified to an extent by the need to start
and close the trials as soon as possible, and by the general circumstances in
which the world found itself at the end the most horrible war in the history of
mankind, that is not applicable at this day and age. In the course of the
establishment of modern international criminal courts, there was enough
time to prevent any serious oversight or disputable solution. That opens
room for consideration why that was not done.
2. Courts reserved for defeated and small nations. - All
international criminal courts to this date (with the exception of the
permanent International Criminal Court established in accordance with the
Rome Statue) have been ad-hoc courts, imposed either by the winning side
to punish the defeated enemy members or by the big powers to punish
alleged criminals that come from small nations and states. That is our reality
even when, at the first glance, it does not appear to be so.
With that in mind, it suffices to say that even though mixed criminal
courts are by definition established with the consent of the respective state
(that should at least formally be so, but the real background behind it is not
always visible to the public), the court for Lebanon was literally imposed on
the country by the UN Security Council.87
With respect to the permanent International Criminal Court, as it is
now, the biggest powers in the world do not have an intention to recognise
87
In accordance with the Security Council Resolution 1664 (2006) of 29 March 2006 the
United Nations and the Lebanese Republic negotiated an agreement on establishing the
Special Tribunal for Lebanon. However, after the United Nations and Lebanon had signed the
agreement on the establishment of the Tribunal on 6 February 2007, even after several months
it still was not ratified by Lebanon. This caused a fierce reaction of the major Western
countries, members of the United Nations, on whose initiative the Security Council had
discussed the arising situation, and on 30 May 2007, in accordance with Chapter VII of the
UN Charter adopted Resolution 1757 (2007) on the establishment of the Tribunal. This
decision, which was adopted by a majority of 10 affirmative votes, with 5 abstentions
(including Russia and China) envisages that the agreement between the UN and Lebanon on
the establishment of the Tribunal shall automatically enter into force on 10 June 2007 if not
ratified by the Lebanese government until such date. Putting aside the dilemma whether the
Security Council even in this case exceeded its authority once more "creatively" interpreting
the UN Charter, the fact is that that practically forced Lebanon to ratify the agreement of the
establishment of the Tribunal.
48
its jurisdiction. However, they very actively engage when they think that for
some reason political and military leaders from small countries should be
brought before that same court. Only those from the African countries, for
now. Although there were high expectations with respect to the Court, and
with a good reason, until now, it has not proven to be equal for those big and
small, powerful and weak, rich and poor...
3. A political instrument? – Considering their practice to this date,
international criminal courts face a serious challenge to evolve, by punishing
only the indictees from small nations, into a political instrument of the big
powers. Into an instrument for punishment of disobedient leaders and
regimes, i.e., an instrument for threatening others that, if they continue to
behave in a way that is not satisfactory to the big powers, they would soon
find themselves sitting in the dock in The Hague. And not only be sentenced
to long-term imprisonment, but also morally degraded before the eyes of the
world, and to an extent before the public in their own country. That they
would expiate their “guilt” behind bars, but also that they would remain
branded as true criminals, even if there is a chance that they are not.
After all, even if one could assume that all persons convicted by the
international criminal courts are in fact guilty for the crimes imputed to them
and that they do deserve the sentences that were meted out to them, some
dilemmas still remain.
First of all, selective justice is not justice at all. That is one of the
worst forms of injustice.
On the other side, initiating a proceeding before an international
criminal court against a disobedient leader appears to be the best way to
remove him/her from the scene both physically (imprison him/her for life or
for a very long time) and also politically. A person’s conviction is a great
shame that taints everything that he/she has ever done, everything he/she has
ever stood for. Someone who is perceived, at least by his/her own people, as
a hero, a legendary leader, a symbol of national pride and defiance, over
night becomes a person of dubious moral and other qualities, to say the least.
The chief prosecutor in Tokyo, Keenan, an American, argued at the
time that from those who launched wars in violation of international
agreements needed to be stripped of their hero capes and shown in the true
49
light for what they were – common murderers. Similarly, in our time, a
conviction by an international criminal court does not mean only the
deserved punishment for specific crimes, but also lifelong labelling of the
respective person – a small nation’s leader – and his/her politics. This
becomes even more problematic in the light of the practice by some of these
courts that sometimes have a very broad interpretation of command
responsibility, unduly translating it into a form of objective responsibility.88
Finally, we are all the witnesses of the fact that in the most recent
practice a mere threat that a certain leader could be accused before an
international court is, to greater or lesser extent, an efficient instrument for
putting political pressure on him/her to comply with the requests of the big
powers, i.e., if he/she refuses to do so, initiating a proceeding against
him/her serves for propaganda purposes and as a justification for the military
intervention against the respective state.89
4. International criminal justice – prospects. – Considering all the
above, the question is what could be expected from the international criminal
judiciary? Should it be supported at all?
The below signatory is a strong believer in the international law
institutions, and also in the international criminal judiciary. But not in the
institutions of just any international law, only of that that would be
democratic and equal for all. Similarly – not in just any international
criminal judiciary, but in that that would be impartial, independent, and
equal for all. That that would not consider where the accused comes from
and what he/she is, but weather he/she has committed a crime that is under
the jurisdiction of the Court. And that that would, above all, be powerful
88
This is particularly striking if that same court fails to do anything to punish those who gave
the immediate orders for or committed some of the most atrocious crimes.
89
By now it has mostly been forgotten that the indictment against the former Yugoslav
President Slobodan Milosevic was raised in 1999 – at the very peak of the NATO aggression
against FR Yugoslavia. The indictment included the events that had occurred as many as 10
years earlier, but it was raised – exactly when the resistance of FR Yugoslavia had to be
broken! That same Tribunal, however, did not find it necessary to raise a single indictment for
the crimes committed by the NATO forces. That has already been discussed.
50
enough to initiate, as the first step, proceedings against all those who deserve
it, irrespective of who they are.
With the exception of the International Criminal Court, established in
accordance with the Rome Statute, all international criminal courts to this
date all have been ad-hoc courts. Even if one leaves aside various other
observations that were discussed above, that alone labels them as something
that applies only to some, but not to all.
On the other side, as it stands now, the International Criminal Court
does not inspire that much confidence. That has already been discussed
extensively. With the strengthening of the international integration
processes, probably the best solution would be for permanent regional
international criminal courts to be established (European, American, etc.),
and for the existing International Criminal Court to evolve into a sort of a
second-instance body. On one side, that would alleviate in advance the
burden of the International Criminal Court (it is not realistic to expect that it
could a have world-wide coverage), and, on the other side, regional courts
are in a much better position to adjudicate in the first instance for many
reasons (better understanding of the issues, easier presentation of evidence,
reduced cost of transportation of the indictees, witnesses, etc., greater public
interest in the region, facilitating reconciliation at the regional level, etc.).
What should in any case be indisputable is that international criminal
courts mark a great progress. But only if they are independent, impartial, and
equal for all. Otherwise, they can easily become a weapon in the hands of
the powerful, and can be used to keep the weak in submission. However, that
is not in contravention to the elementary justice and equity, it also has no
prospects. Such policy may be successful for a while, but in the long-term it
inevitably undermines the confidence in international courts and
international institutions in general, and in turn leads to conflicts of great
magnitude.
To conclude, justice must be blind. If it can see even with one eye
only, that is no justice, that is someone who sways pro or contra depending
on who is on trial, and not on the factual and legal matter. Similarly, the
international judiciary must be impartial ad equal for all. If it is not so, it can
easily be transformed into an instrument for the developed and powerful
nations to impose neo-colonial order on others, firstly small and
51
underdeveloped nations. That would not only be utterly immoral, but,
considering the long-term, it would also be counterproductive, as it would
completely undermine the faith in international justice, and after a certain
period of time by any means, it would by any means cause overall resistance.
It is not a coincidence that one of the most famous judiciary maxims is
“Fiat justitita et pereat mundus!” 90
90
Latin: Let there be justice, though the world perish, meaning let the justice be satisfied,
even if the world perishes. The phrase “Fiat justitia et ruam caelum” has the same meaning
(Let justice be done though the heavens fall!).
52
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56
A VIEW OF ICTY AND…
Prof. dr Milan Škulić,
Full Professor
Law School
Belgrade University
A VIEW OF ICTY AND ITS PLACE IN HISTORY
1. Was “The Hague” truly a shortcut to “Rome” – the actual
“contribution” of ICTY to the idea of international criminal “justice”?
Although it is normally considered that the “way” to a permanent
international criminal court was initiated in the wake of the World War II,
that is not quite true, considering that trial, without underestimating the
importance of the Nuremberg International Military Tribunal, was not in any
case the first step towards the establishment of a supranational criminal court
for specific crimes.1 While the Nuremberg and Tokyo trials certainly have a
great legal and historical importance, a question can be raised, at the same
time, to what extent ad-hoc tribunals marked the “right way”, or even the
“shortest way”, to the establishment of a permanent international criminal
court,2 and the development of universal and stable international criminal
law in general. One chapter in the article of the above cited author, A. Eser,3
is even titled Von Nürnberg über Den Haag nach Rom (From Nuremberg
Through The Hague To Rome), attempting to emphasise metaphorically the
“evolutionary”, or even “straight-line” or targeted international criminal law
development path, with ad-hoc tribunals as a sort of a “predecessor” of the
permanent international criminal court.
Furthermore, such “word play” could be noted even earlier in the
German literature, and thus, a collection dedicated to crimes against human
1
A. Eser, Auf dem Weg zu einem internationalen Strafgerichtshof: Entstehung und Grundzüge
des Rom-Status, in N. Courakis (Hrsg), “Die Strafrechtswissenschaften im 21. Jahrhundert –
Festschrift für Prof. Dr. Dionysios Spinellis“, “Ant. N. Sakkoulas Verlag“, Abteilung für
Strafrechtswissenschaften, Juristische Fakultät, Universität Athen, 2001, стр. 342.
2
For further details see: Z. Stojanović, Ad-hoc Criminal Tribunal for the former Yugoslavia
(ICTY) and International Criminal Law, “Balcan Law Rewiew“, No. 6, 1999, pр. 6–11.
3
A. Eser, op. cit., р. 342.
Prof. dr Milan Škulić
57
rights and international trails is titled Von Nürnberg nach Den Haag, and it
contains also an article with the sane title.4 Considering also relatively
frequent negative experiences relating to the work of primarily the ad-hoc
Tribunal for the former Yugoslavia, and prior to that also those in
Nuremberg and Tokyo, a question is raised, however, weather those
tribunals were sections of the “shortcut” or rather sections of a “roundabout
way” to the establishment of the permanent international criminal court.
However, that the German authors were “impressed” to a certain level by adhoc tribunals (and particularly those for the former Yugoslavia, which is
located in Europe) is understandable, considering that for them, and for
many other Germans in general, this first trial for international crimes (and
even genocide) after the Nuremberg and Tokyo trials probably came as “the
plaster on the wound”, since after “the bad Germans”, now one can talk also
of “the evil Serbs.”5
As a matter of fact, the legality of the establishment of the
International Criminal Tribunal for the former Yugoslavia is disputable, to
say the least, and may be contested by strong legal arguments, which has
been discussed extensively in both international and domestic literature.6 The
critics of the legality of the ICTY emphasise that a normal approach to
establishing an international court would be establishment under an
agreement, and that the legal basis that boils down to a broad interpretation
of the provision of Chapter VII of the UN Charter, which authorises the
Security Council to take any measure necessary to maintain or restore peace
and security, after it has determined any threat to the peace, breach of the
peace, or act of aggression, is not valid from the legal aspect, as the term
“court” cannot be implied in any case by the term “measure”.7 Our
4
Christian Tomaschut (Hrsg), Vom Nürnberger Menschenrechtszentrum: Von Nürnberg nach
den Haag – Menschenrechtsverbrechen vor Gericht – Zur Aktualität des Nürnberger
Prozesses, “Europäische Verlagsanstalt“, Hamburg, 1996, pp. 93–115.
5
For further details see: М. Škulić, Međunarodni krivični sud – nadležnost i postupak, Pravni
fakultet Univerziteta u Beogradu i “Dosije“,Belgrade, 2005, p. 27.
6
S. Đorđević, Međunarodni krivični tribunal za prethodnu Jugoslaviju (neka kritička
zapažanja), Problemi međunarodnog krivičnog prava i pravosuđa, collection –
“Međunarodno krivičnopravna pitanja i Haški tribunal”, Pravni fakultet u Beogradu, projekat
“Srbija – pravna država”, Belgrade, 1997, p. 157.
7
K. Čavoški, Hag protiv pravde – Bruka Međunarodnog krivičnog suda za bivšu Jugoslaviju
u slučaju: Tužilac protiv generala Đukića, Problemi međunarodnog krivičnog prava i
58
literature, however, recognises also different views, and thus, for example, it
is emphasised that the establishment of the ICTY in accordance with Chapter
VII of the UN Charter falls under the discretionary right of the Security
Council, and that, to this date, its practice has developed considerably and
that it is no longer disputed by any state, i.e., member of the international
community, and that its legitimacy is incontestable and considerably
strengthened, as it was established by the international community as a
whole.8 Also, the theory emphasises that the solutions specified in the UN
Security Council Resolution No. 827 (1993) were introduced for the first
time in the practice of the international community, and that consequently
they could be fully developed and fully incontestable, and that, regardless of
that, they presented an important innovation, and that it was upon the OUN
to ensure their further and consistent development, and that it was less
advised to suspend them at the very beginning, than to “apply that type of
intervention regardless of its current weaknesses in the first phase”, in order
to establish compromised peace and security.9
Essentially, the issue of the legality of the ICTY has to be considered
exclusively from the aspect of the professional assessment of (non-)validity
of the legal basis for its establishment, and there is not place for any political
arguments in that respect. It can be noted that the judgments of ad-hoc
tribunals, and particularly that established for the territories of the former
SFRY, are discussed extensively as the foundation for the future
development of international criminal law, primarily with the application of
the classical rule of the Anglo-Saxon precedent-based legal system in mind,
according to which the final judgments become legally binding in other
identical or similar cases, i.e., become sources of law.10 The staunchest
advocate of that stream of doctrine by all means is M. Cherif Bassiouni,
pravosuđa, collection – “Međunarodno krivičnopravna pitanja i Haški tribunal“, Pravni
fakultet u Beogradu, projekat “Srbija – pravna država”, Belgrade, 1997, pp. 131–132.
8
M. Paunović, Međunarodni krivični tribunal za teške povrede međunarodnog humanitarnog
prava na području bivše Jugoslavije, Problemi međunarodnog krivičnog prava i pravosuđa,
collections – “Međunarodno krivičnopravna pitanja i Haški tribunal”, Pravni fakultet u
Beogradu, projekat “Srbija – pravna država”, Belgrade, 1997, p. 126.
9
V. A. Vasilijević, Zločin i odgovornost – Ogled o međunarodnom krivičnom pravu i raspadu
Jugoslavije, “Prometej”, Belgrade, 1995, p. 167.
10
For further details see: K. Ambos, Der Allgemeine Teil des Völkerstrafrechts, “Duncker &
Humblot“, Berlin, 2002, pp. 259–360.
59
who, for example, argues that “the creation of the ad-hoc tribunals for the
former Yugoslavia and Rwanda is of great importance, although they were
created as a result of the actions by the Security Council, and regardless of
the fact that these tribunals still have to produced a sufficient number of
judgments, their establishment is an important indicator of how much has
already been done.”11
With respect to the practice created during the work of ad-hoc
tribunals, we are of the opinion that now that the Statues and other formal
sources of law of the permanent international criminal court are available,
the precedent-based legal influence (and any influence of the practice in
general) needs to be fully excluded from the work of the ad-hoc tribunals. It
is not possible, i.e., it is completely wrong, to impose the practice that has
already been created by the rulings of the ad-hoc tribunals as something that
is understandable by itself, without any explanation of the ratio or the legal
basis for such action, to a newly established permanent international criminal
court as well, as those are essentially different institutions. Considering the
ad-hoc nature of the tribunals for the former Yugoslavia and Rwanda (which
is clearly reflected in their names, and their territorial, and even their
temporal jurisdictions), their nature and their legal, and even their factual
essence, imply exactly their transience and non-permanence, which is also
unequivocally labeled by the term “ad-hoc“. Therefore, as a rule, the legal
effect of their judgments cannot be of permanent nature when it pertains to
other permanent institutions, i.e., primarily the permanent international
criminal court, either, and it could rather be allowed very cautiously, in
exceptional circumstances, only as a restrictive exception that would be
applied with caution.
2. Legality and Legitimacy of the Establishment of ICTY
The UN Security Council, which created the ICTY under its
Resolution 827 in 1993, was not authorised to do so, as the term “court”
cannot be equated with the term “measure”, which the UN Security Council
is authorised to take if it is necessary to maintain or restore international
peace or security, and similarly the court cannot be a subsidiary body of the
11
M. C. Bassiouni, The Statute of the International Criminal Court – A documentary History,
“Transnational Publishers“, Ardsley, New York, 1998, p. 34.
60
Security Council. The arguments of the authors who support the legality of
the ICTY essentially do not have legal grounds, and more or less boil down
to the “naked” claim that this tribunal factually exists, which cannot be
contested in any respect, but which is not a legal argument in itself or a
typical jurists’ reasoning. Furthermore, arguments are also used that are
often or predominantly of utilitarian nature, i.e., that are based on the claim
that the actions of the ICTY are useful and desirable, or even a fruitful
ground for the future development of international criminal law, which,
although it can be a subject of argumentative discussion, does not present in
any respect the application of legal criteria in the resolution of the problem.
Quite the contrary, such criteria are essentially of exceptionally non-legal
nature, even when it pertains to the claim that the actions by the ad-hoc
tribunals are of importance for the confirmation of previously established
international criminal law solutions and the development of the future
practice, as the law in general, and even international criminal law, cannot be
created, applied or built up by the actions of the institutions that were
themselves established in way that is in contravention to law. However,
regardless that on the grounds of these arguments based on pure factuality or
a “utilitarian” principle, in our opinion, it is not possible, i.e., it is not legally
justified, to argue that the ICTY was created in the legal manner, and that it
operates fully in the legal manner, that cannot exclude in any respect the
need to analyse the legal issues relating to its work, and in that filed,
factuality certainly is of great importance.
It could be expected, by the logic of things, that the issues of the
legality and legitimacy of the ICTY would be addressed to a great extent
exactly by the science representatives from those states whose citizens are
most directly affected by the consequences of the actions of this tribunal, and
in whose territories the crimes that fall under the jurisdiction of the ICTY
had occurred, and those are, therefore, the states created after the bloody
civil war in SFRY and the violent secession of the most of the republics of
the former federation. However, such discussions were not as frequent as it
could have been reasonably expected. It is particularly striking that the
advocates of the concept of legal establishment of the ICTY do not employ
almost any legal arguments or clear jurist reasoning, and rather refer,
practically as the only rationale, to the pre-established factual situation,
employing classical political arguments. Supporting the legality and
61
legitimacy of the ICTY (ICCY),12 D. Krapac,13 attempts to prove, by
combining certain (quasi)legal and some factual (which dominate even in his
considerations), and even criminal political, but predominantly political
reasons, the legal foundations of the ICTY, which by all means deserves a
certain attention, as it is an augmented discussion.
In support of the legality of the ICTY it is emphasised that, in his
report to the Security Council from 3 May 1993, the General Secretary
proposed that the Security Council should adopt, based on its authorisations
in accordance from Chapter VII of the UN Charter, a decision on the
establishment of the International Criminal Tribunal for the former
Yugoslavia, as a subsidiary body to perform its duties, i.e., the duties of the
Security Council itself, whereby it is underlined that this procedure for the
establishment of the court is “much more expeditious” from the “criminal
political” aspect than the establishment under a multilateral agreement (in
which case, the collection of the required number of signatures and the
ratification by the UN member states could go very slow) or under a decision
adopted by the UN General Assembly, which also would not be appropriate
considering the “urgency”.14 Referring to criminal political reasons cannot
be valid in this case, considering that, on one side, it is uncertain even
whether such criminal political reasons exist at all and to what extent, as that
would have to be more thoroughly and consistently justified, and on the
other side, although the need punish those responsible for crimes is not
disputed, it must done in a legally impeccable manner only, and with that
respect the issue of speediness, by itself, has no legal significance. In fact,
the criterion of urgency of trial cannot be used to substitute the legal flaws of
a specific arrangement. Thus, for example, in case of an exceptionally
serious crime in any country, lynching the perpetrator or simply executing
even a flagrant criminal would be considerably faster that a classic criminal
proceeding before the court, and often that can even be acceptable or
desirable for the largest portion of the population, but it must not be allowed
in the states of law, and even if it does occur, the actors of such “speedy
12
The author uses the abbriviation ICCY to mean: “Internaitonal Criminal Court for
Yugoslavia.”
13
For further details see: D. Krapac, Međunarodni sud za ratne zločine na području bivše
Jugoslavije, “Hrvatski Helsinški odbor za ljudska prava“ and “Hrvatski pravni centar“,
Zagreb, 1995, pp. 22–25.
14
Ibid., р. 22.
62
justice” must be prosecuted. In other words, the speediness of a solution is
not a legal argument.
Here one could apply argumentum a contrario that it is certain that
there was a high-level of interest on the side of the international community
for the permanent International Criminal Court to be established and to
become operational as soon as possible, and yet no “urgent” solutions or no
“legal and process bypasses” were used, and it was done exactly in the way
that is in the above opinion considered to be too slow, i.e., the court was
established under a multilateral agreement, which was in turn signed and
ratified by the member countries (Parties), in accordance with specific
dynamics, until it was acceded by a sufficient number of states, required for
its legal effectiveness. That implies also that such way of establishment of an
international criminal court, regardless of whether it is a permanent court or
an ad-hoc institution, is legally correct, i.e., valid in the legal sense, and it
cannot be substituted even by establishment in accordance with a decision of
the UN General Assembly, which would also not be a legal way, although it
would certainly be a somewhat more legal way, but that is rather immaterial
at this point.
Furthermore, it is emphasised that the aim of the creation of the ICTY
“under the auspices” Chapter VII of the UN Charter falls, in the legal sense,
under the scope of the Security Council, as specified in the above Chapter of
UN Charter, which obligates it in case of any threat to the peace, breach of
the peace, or act of aggression to act in an appropriate way, and
consequently the legal foundations of The ICTY aim to prevent any breach
of security and force all sides in a conflict to respect international law,
whereby the UN General Secretary deems that in spite of its nature as a
subsidiary body, the ICTY as a judiciary body would perform its duties
independently and impartially, as it would be subject to supervision by the
Security Council in adjudication and it would not apply the material norms
specified by the Security Council, but only the existing, relevant body of
international criminal law.15 While it is not disputable that the ICTY has the
right and obligation to prevent armed conflicts and aggression and armed
conflicts in general, a question is raised weather it has a full discretion to
decide on how it will achieve it. Naturally it does not have that discretion, as
15
Ibidem.
63
even the Security Council may employ only those methods for the
maintenance and restoration of the peace that are legal, i.e., legally allowed.
With that respect, it may take different measures of primarily factutal, but
potentially also of legal nature, but it cannot establish a court, considering
that the term court cannot in any respect be equated with the term measure,
as on one side, that would be simply logically absurd, and on the other side,
that would in a certain way offend even the judicial function, which is also
of a general moral importance. Finally, a court cannot be established in a
form of a subsidiary body of any institution, and not even as a subsidiary
body of the Security Council, as that is also in compete contravention to the
purpose of the existence of such court and the essence of its action, and
would morally discredit such body, even at first glace and on a
terminological level, in terms of the required independence and autonomy of
judicial function, which, in this case, is not influences either by the fact that
it does not apply the material law established by its founder, i.e., the Security
Council.
By granting the UN Security Council under the provision of Article 39
of the UN Charter the right and obligation to determine any threat to the
peace, breach of the peace, or act of aggression, and recommend or decide
on the measures to be taken in order to maintain or restore the peace or
security at the international level, that body has not been authorised to take
any measure it may deem necessary, but rather to make decisions and take
measures under its competence, i.e., relating to its function, and that does not
include the establishment of courts.16 Finally, from the aspect of
appropriateness of the establishment of the ICTY as a “measure”, whose
main objective was to prevent armed conflicts, i.e., to restore the peace, it is
quite clear that that tribunal did not contribute to the peace in the territory of
the former SFRY, considering that for several years after its establishment
and active start of its operations the bloody civil war in the territories of the
former Yugoslavia continued to rage, with certain periods of truce, to be
expanded in 1998/99 also to the territory of Serbia, which prior to that did
not see any such events, only to culminate in the NATO aggression against
the Federal Republic of Yugoslavia. In the course of the ICTY’s operations,
a whole range of grievous crimes occurred in the territories of the former
16
Cf: C. Holweg, Das neue International Tribunal der UNO und der Jugoslawienkonflikt,
Juristenzeitung, No. 20/93, p. 981.
64
SFRY, and it is quite obvious that its existence did not have a “calming”
effect on the armed conflicts and the occurrence of crimes under its
jurisdiction.
Another major issue is to what extent the armed conflict in the
territories of the former SFRY actually constituted a threat to the world
peace, considering that in accordance with all the recent indicators it was a
typical civil war, which occurred in a relatively confined geographical area,
without any real prospects of expanding. The armed conflict started as a civil
war and ended as such in the territories of the former SFRY, excluding
Serbia and Montenegro, where the terrorist actions initiated by the so-called
and the armed rebellion of the Albanians in Kosovo and Metohija led to the
NATO aggression against then Federal Republic of Yugoslavia and the
period of that aggression was practically the only true international armed
conflict, i.e., war between international actors, in the territory of the former
SFRY during the 1990s. Even the fact that Croatia and Bosnia and
Herzegovina, at the time when the war has already started in those parts, and
when their actual official governments (and when the independence was
declared in Bosnia and Herzegovina in contravention to the constitution and
against the will of its constitutional people, the Serbs17) did not have the
17
It should not be forgotten that Croatia also proclaimed its independence against the will of
the Serb population that at that time lived within its administrative borders, and that, in
addition to its considerable numbers and centuries-long indigenous presence in those
territories, was also a constitutional element of the Croatian statehood in the confines of the
post-war socialist Yugoslavia, which was rooted in the World War II, during the armed
resistance to the occupation by the Nazi Germany and its allies. It is not insignificant that, at
the same time, one of the most loyal German allies was the so-called Independent State of
Croatia (Nezavisna Država Hrvatska, NDH), whose authorities committed genocide against
the Serbs and the Jews in the territories under its jurisdiction, while at the same time, the Serb
population from those areas was massively engaged in the units that fought on the side of the
Allies, i.e., opposed the genocide committed by the Ustashi authorities that were probably the
most loyal Hitler’s ally, and those soldiers, in demonstration of the loyalty of the so-called
NDH to the Nazi Germany, fought also on Stalingrad Front. Having in mind the World War II
experiences, the Serb population within the confined of the AVNOJ Croatia could not face
peacefully the prospect of living in a new independent and autonomous Croatia, and the
justifiability of that fear is confirmed by the following quote: “Approximately 6 million
population in the “NDH” comprised 51 % Croats, 32 % Serbs, 11 % Muslims, 2 % Germans,
1 % Hungarians, 0.3 % Jews, and 3 % others. The government removed all “non-Croats” from
the public services, press and the radio. The Jews were forced to wear Star of David bands,
and their property was confiscated. The use of the Cyrillic alphabet was prohibited. The
Orthodox Church was divested of any financial support; its members were forced to
65
control of significant parts of their administrative territories, were recognised
by the greatest part of the international community, cannot give an
international character to those armed conflicts, as they were primarily the
conflicts between the citizens of those states, i.e., that was a typical civil
war. That implies that the essential issue is weather armed conflicts, i.e., the
civil war, in the territory of the former SFRY caused a threat to the world
peace, and to what extent it existed at a broader international level, which
would obligate or prompt the Security Council to take the adequate
measures. It appears to us that there was no such threat, and even if we were
to consider that that conflict really did threaten to endanger the world peace,
it is quite clear that, on one side, the Security Council did not have the right
to establish a judicial body at the level of international law, and on the other
side, that the establishment of the ICTY cannot be construed as a
“measure”, whereby it is quite clear that the establishment of that institution
did not achieve its projected goals, i.e., it did not stop the war, and it
continued to rage and even escalated and several years after the beginning of
the ICTY’s operations, and that even those who are quite suspicious towards
this tribunal might argue that its existence may have contributed to
prolonging the armed conflict, i.e., war in the territories of the former
SFRY.
A more serious examination of the legality of the establishment of the
ad-hoc international criminal tribunals, and primarily that for the former
SFRY, can be found in the German literature. Thus, some authors claim that
the establishment of an ad-hoc court in accordance with the a UN Security
Council Resolution was unusual, as it reduced a measure, taken from Article
41 of the UN Charter, to the establishment of an institution, creating a
precedent case, similar to the establishment of the Iraq-Kuwait Boundary
Demarcation Commission in 1991, with a consideration that, with respect to
the ICTY, the issue of its legality, after some “initial wavering”, was
resolved by the decision of the Judicial Council of the Tribunal for
wear bands on their coat sleeves carry with a letter “p” (for Orthodox).”... It is familiar that
concentration camp were opened, with a repertoire of atrocities that was not second to that of
the German. 750,000 Serbs, 60,000 Jews, 26,000 Roma, and several thousands of Croats who
opposed the regime were killed.” For further details see: T. Pflüger und M. Jung, Krieg in
Jugoslawien, Tübingen, 1993, pp. 12–13.
66
Yugoslavia in the Tadić case,18 who found in favour of admissibility of the
court’s establishment by the Security Council, and today that is undisputable
in the international law literature.19 Here, the authors themselves note the
impossibility of lightly-taken and simple equating of the terms “court” and
“measure”, and go on to explain that in that case a measure is reduced to the
establishment of a court, but such understanding appears to be logically
unacceptable to us. In addition, although they admit that the case is
complicated, they find it dubious from the aspect of legality that the key
reason for the indisputability of the fact that the establishment an ad-hoc
international criminal tribunal in accordance with the decision of the
Security Council is legal is that the Judicial Council of that same tribunal
adopted such decision, i.e., found in favour of their own legal action. Well, it
would be difficult to expect that the decision could be any different, as those
judges actually “ruled in their own matter”. In fact, had they adopted a
different decision, they would have pronounced themselves parties to an
illegal activity, and that is why they cannot be considered in any respect
unbiased in this case. The issue of the legality in this case, as in all other
cases, should have been addressed by a body that is external to the ICTY
itself, and naturally that is external to the Security Council, and therefore,
not just another body established by a decision of the Security Council itself,
and in this case, it was addressed by the very body to which it pertains. Such
decision cannot be considered valid, particularly from the aspect of science,
which, in this event, must develop its own criteria, rather than being guided
by the formal criteria, which, in this case, appear to be exceptionally
disputable even at first sight. Otherwise, it appears to us that only the UN
General Assembly could address this issue in the formal sense, although
even that could not influence the doctrine view that an international criminal
court can be established only under an international agreement, such as the
establishment of the permanent International Criminal Court.
Otherwise, linking of the issue of the legality of the establishment of
the ICTY to the issue of its appropriateness, primarily in light of
considerations about this ad-hoc tribunal, therefore an institution that should
18
ICTY, Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on jurisdiction, 2. October 1995.
19
G. Dahm, J. Delbrück und R. Wolfrum, Völkerrecht, Band I/3, 2. Auflage. “De Gruyter
Recht“, Berlin, 2002, pp. 1132–1133.
67
perform a judicial function, as a “measure”, which should contribute to
peace building, i.e., elimination of the war atrocities, has been frequently
supported in the literature, but such opinions can hardly be considered
legally established, similarly as “appropriateness”, “viability”, etc. cannot
be, as a rule, legal terms, except a specific entity is obligated under a strict
legal norm to respect such criteria, but even that always requires a great deal
of caution in the assessment of weather something is appropriate, viable,
etc., which always boils down to a discretionary assessment by the relevant
authority, but it appears that the UN Security Council did not have the right
to do so with respect to the establishment of the ICTY. With that respect, the
literature recognises, for example, the following conclusion: “The Security
Council was strongly committed to put a stop to the atrocious events in the
former Yugoslavia. After the implementation of enforcement measures in a
more narrow sense, i.e., those directed against international law entities,
which did not prove to be (any longer) efficient, the only measure left to
consider was the criminal prosecution of those responsible for grave breach
of international criminal law. An appropriate International Criminal Court
could have been established, within a reasonable timeframe, in accordance
with an international agreement, or through a decision adopted by the United
Nations General Assembly. Contrary to that, the only option that was
considered was a decision of the Security Council based on Chapter VII of
the UN Charter. Although the establishment of the International Criminal
Court is (yet) another acceptable enforcement measure in accordance with
Article 41 o the UN Charter, and although the Security Council paid all due
attention to establishing a broad legal base in the Statute and the Rules of
Procedure and Evidence, but also in the Court’s recent and current practice
relating to the rights of the accused, which are taken into account in a way
that complies with the state of law principle, yet a bitter taste remains.”20 The
literature clearly marks the legal procedure of the establishment of the ICTY
as unusual, but as we have already explained, many authors still insist on its
being viable, and particularly on the fact that the establishment of the
Tribunal in accordance with a decision of the Security Council is much
simpler from its establishment under an agreement. Thus, for example, it is
20
W. Hentschel v. Heinegg, Die Errichtung des Jugoslawien-Strafgerichtshofes durch
Resolution 827 (1993), in: H. Fischer / S. Lüder (Hrsg.), Völkerrechtliche Verbrechen vor
dem Jugoslawien-Tribunal, nationalen Gerichten und dem Internationalen Strafgerichtshof,
“Berlin Verlag Arno Spitz“, Berlin, 1999, р. 85.
68
concluded that the traditional way of establishment of international bodies is
an agreement, which is the primary source of international law, and which is
closed after the negotiations between the states and specifying the rules
relating to the management of the tribunal, its jurisdiction and procedure,
whereby the agreement reflects the will of each sovereign state, but that that
approach, which is desired in theory, has two serious drawbacks: the first
one relates to the fact that it implies a lengthy negotiation, signing and
ratification procedures, which may take several months or, more likely,
several years, even if the agreement has the support of the UN General
Assembly, while the second one relates to the fact that an agreement is by its
definition binding only for the parties to agreement, i.e., the states that sign
and ratify it.21
The above cited author notes that the establishment of the ICTY is a
controversial issue, but that in accordance with the above validity criteria,
founded on the observation that the procedure of establishment of the
tribunal under an agreement is a very lengthy and complicated process, and
that it cannot result in the establishment of a court whose jurisdiction would
be binding for all states, and not only for the parties to agreement, it should
be considered justified.22 However, such logic is not possible in relation to
the issue weather something has been created in a legal or illegal way,
considering that regardless how preferable and useful the institution may be
and how urgent the need for its establishment, based on those arguments it
cannot be concluded that its establishment is legal, if it is not so
objectively.23 In other words, it could potentially be argued that the Security
Council, when it created the ICTY, acted in emergency, and considering that
its urgent establishment necessary for the prevention of the armed conflicts,
acted at that time in an illegal manner, but that cannot make the tribunal
itself legal, and it could potentially only be considered a product of an action
that was taken in a sort of “emergency”. As a matter of fact, the first
drawback that the above cited author attributes to the typical and, in fact, the
only legal way of establishment of international (criminal) courts, i.e.,
21
R. Zacklin, Some Mayor Problems in the Drafting of the ICTY Statute, Symposium – The
ICTY 10 Years On: The View from Inside, “Journal of International Justice“, “Oxford
University Press“, Vol. 2, No. 2, Oxford, London, June, 2004, pp. 361–362.
22
Ibid., р. 363.
23
Such logic could present a sort of a grotesque foundation of legality on the famous sentence
– prior tempore, potior jure.
69
negotiating a multilateral agreement between the states, exists to an extent
also in case the tribunal is established by a decision of an executive body,
which proves that such a procedure is not only illegal, but also inefficient. In
fact, the executive body that is the founder of the tribunal, and in that case of
the ICTY that is the UN Security Council, must by all means hold
negotiations and reach agreements internally, and could take quite some
time, particularly taking into account different interests of the permanent
members of the Security Council. We will illustrate this observation with an
observation of the Chief Prosecutor of the ICTY: “It took eight months for
the Security Council to close the agreement on the appointment of the
Prosecutor. The judges, who had been appointed almost a year earlier, were
naturally angry and frustrated to see that not a single investigation had been
even initiated.”24
The legitimacy of the ICTY is sometimes linked to the issue of
weather it, by its existence, contrasts the permanent International Criminal
Court, which, at the time of the establishment of the ICTY, did not even
exist. Thus, a previously cited author, contesting the positions of the
Government of the FR Yugoslavia specified in the letter from 19 May 1993,
which was disseminated as the official UN document immediately before the
adoption of the UN Security Council Resolution 827, argues that the
legitimacy of the ICTY ensues, on one side, from the fact that the breaches
of international humanitarian law do not necessarily have to fall under the
jurisdiction of only one permanent international criminal court, even citing
that: “those that do not comply with the general international standards of
fair trial themselves cannot expect others to apply those same standards onto
them”, while on the other hand, that actions by the ICTY should not be
perceived as any “interference in internal affairs”, as the prohibition of
interference in internal affairs does not apply to the enforcement measures in
accordance with Chapter VII of the UN Charter, which underlies also the
establishment of the ICTY.25
It appears to us that this comment is rather confused about some
things. On one side, the government of the FR Yugoslavia was in favour,
24
R. Goldstone, A View from the Prosecution, Symposium – The ICTY 10 Years On: The View
from Inside, “Journal of International Justice“, “Oxford University Press“, Vol. 2, No. 2,
Oxford, London, June, 2004, р. 380.
25
D. Krapac, op. cit., р. 24.
70
and justifiably so, of the creation of a permanent international criminal court,
as a better and more adequate solution than the establishment of any ad-hoc
criminal tribunal, and was finally proven right by the passage of time, i.e.,
subsequent actions by a part of the international community, as a couple of
years after that, the permanent International Criminal Court actually was
established. On the other side, that still does not mean that the establishment
of an ad-hoc international criminal tribunal was not absolutely possible and
justified even before the establishment of the permanent international
criminal court, but it rather raises the basic issue of the legality of the way in
which it was established. Had it been established on the grounds of an
international agreement, such an issue would not have been raised,
regardless of its non-permanent nature and the fact that subsequently, after it
had been created, the permanent international criminal court was established.
Another issue if weather it is viable to establish ad-hoc international criminal
tribunals at all, if that issue could be solved in a better way, as it was, in fact,
subsequently done, by creating a permanent international judicial institution.
In this case, this is rather an issue of the legality, than an issue of the
legitimacy of the ICTY. It appears to us that its legality, i.e., lawfulness of its
establishment is seriously undermined, i.e., that is could be contested by very
strong legal arguments, and that the legitimacy of its actions must be
assessed in the light on the court practice that is being developed before it,
and which can be unequivocally questioned on grounds of a whole range of
very serious arguments in favour of the partiality of its actions and failure to
act in accordance with the principle of absolute judicial independence. In
addition to that, if an institution is established in an illegal way, it is very
difficult to defend subsequently the legitimacy of the actions of such
(illegally) created entity.
On the other side, when the cited author rebuffs the claims of the
government of FR Yugoslavia, by arguing that those that do not comply with
the general international standards of fair trial themselves cannot expect
others to apply those same standards onto them, the author de facto and
expressly admits that in the establishment of the ICTY certain international
law standards were not respected at the expense of the former Yugoslavia.
By doing that, the author repudiates to a great extent himself, i.e., his own
arguments in support of the legality and legitimacy of the ICTY. Without
going into a deeper examination of this issue at this point, firstly in terms of
what international law standards were not respected by FR Yugoslavia (what
is implied, also without any close explanation, by the cited author), we can
71
derive a very simple conclusion that responding by non-compliance to
someone else’s prior non-compliance cannot be considered legally justified
and appropriate.26 Therefore, even if FR Yugoslavia did breach international
law standards (which is not what we argue, or consider to be of any
relevance for the assessment of the legality of the establishment of the
ICTY), that cannot be a reason for other international law entities to breach
other international law standards in relation to FR Yugoslavia and to fail to
comply in general.
As a matter of fact many authors, primarily those who deal with
international public law, practically equate the decision of the Security
Council on the establishment of the ad-hoc International Criminal Tribunal
for the former Yugoslavia with the decision of the United Nations and do not
deal with the issue of the Security Council’s authorization to establish such a
body at all, and do not consider strictly the issue of the legality of such
established tribunal, but rather treat it as a notorious fact, which does not
require any additional explanation, other than an analysis of historical
circumstances in which the decision was made. And what is particularly
conspicuous, the establishment of ad-hoc criminal tribunals is often linked
directly to the work on the creation of the permanent international criminal
court, and their establishment is perceived as a sort of “mapping” of the
faster way to the permanent international criminal court (which we have
already commented, expressing our disagreement). Thus, for example, it is
concluded: “The creation of these two ad-hoc tribunals had the effect of
reactivation of the project for the establishment of the permanent
International Criminal Court (ICC), which was postponed during the Cold
War.”27 This observation is made without any deeper considerations and
explanations, and it is logically inconceivable that the authors cite the “Cold
26
Indeed, in internal legal systems there are some examples of these situations, such as, acting
in necessity defense or emergency, but in that case the action that constitutes an act in
necessity defense or emergency, i.e., the consequences caused by such action, which would
otherwise be relevant in accordance with criminal law, does not have a character of an illegal
action, and is considered legal action. Furthermore, such analogies are not possible in relation
to the actions, i.e., decisions of the UN Security Council, which does not have the right to
violate the international law standards or to non-comply itself, because the entity to which
such non-complying decisions relate also prior to that failed to comply with the law.
27
J. R. W. D. Jones and S. Powles, International Criminal Practice, Third Edition,
Transnational Publishers, Ardsley, New York, 2003, р. 3.
72
War” as the obstacle for the creation of the permanent International
Criminal Court, without going on to conclude that the end of the Cold War,
i.e., the disappearance of a former super power from the global scene (or at
least its considerably limited role) was the dominant factor for the creation
of the permanent International Criminal Court, although that can be
implicitly concluded from their observation, but rather attribute such an
important role of a “driver” of the creation of the ICC to the ad-hoc
international criminal tribunals. Also, that observation is historically
inaccurate, and completely meaningless, considering that the Cold War had
ended not only before the establishment of the ad-hoc tribunals (particularly
that for Rwanda), but also before the onset of the conflicts in the former
Yugoslavia.
A systematic approach in criticising the ICTY, primarily in relation to
the legality of its establishment, but also its actions, is demonstrated by A.
Cassese, who was by the way the President of this tribunal in the period from
1993 to 1997, which makes his observations and the arguments he uses
particularly important. This author cites a couple of main critical
observations relating to the ICTY (singling out G. Robertson as a
representative of the “critics” of the ICTY),28 and goes on to give his own
view of the problem in relation to those critical objections, i.e., responds to
criticism with the relevant argumentation:29 “The establishment of the ICTY
caused numerous objections. In short, the principle critical remarks include
the following: (i) The tribunal was established to conceal the impotence of
politics and diplomacy, and it reflects the incapability of both the great
powers and the UN Security Council to find a fast and appropriate resolution
for the conflict in the former Yugoslavia; the tribunals is therefore perceived
as a sort of a “fig leaf”; (ii) The establishment of the tribunal by the UN
Security Council constitutes abuse of its powers specified in the UN Charter,
and the adoption of such an act was clearly ultra vires; (iii) By creating a
criminal court to prosecute crimes that occurred in specific countries, instead
of creating a new court to adjudicate crimes that occurred all across the
world, the Security Council opted for “selective justice”; and (iv) the
28
G. Robertson, Crimes against Humanity – The Struggle for Global Justice, “Penguin“,
London, 2003, р. 300.
29
A. Cassese, International Criminal law, “Oxford University Press“, Oxford, New York,
2003, р. 337–338.
73
tribunals is openly based on anti-Serb prejudices, and in addition to that it
has been noted (v) that the prosecutor’s function and the judicial functions in
the tribunal are not fully segregated (the prosecutors and the judges work in
the same building and are supported by the same administration, i.e., use the
same registry).
In his response to these critical remarks, the cited author points out
that the first critical remark is justified, but then goes on to state: “In any
case, half a loaf is better than a pie in the sky.30 As long as there is a lack of
an international criminal court of universal jurisdiction, establishing ad-hoc
tribunals proves to be useful.”31 However, this response is not consistent
with the simple and easily observable fact that now when the permanent
International Criminal Court has been established, the ad-hoc international
criminal tribunals still continue to exist and operate without any
obstructions. Furthermore, A. Cassese rejects the second argument, referring
to the formal grounds that the decision of the Appeals Chamber on the
Interlocutory Appeal in the Tadić case proved the wrongfulness of that
argument, which is founded on the claim that the Security Council was not
authorised to establish a criminal tribunal.32 That is also what we previously
pointed out in relation to this or a similar claim, although final court
decisions produce legal effect in principal, and act in accordance with the
rule res iudicata pro veritate accipitur, that cannot be considered so easily,
and that decision of the Appeals Chamber cannot be given such an absolute
significance in relation to an issue as important as this one. In fact, the
decision was adopted by only one form of functional jurisdiction of the body
whose legal validity was contested, and it is obvious that there is a type of
“conflict of interest” here, as the Appeals Chamber of the ICTY itself could
not have decided on the legality of that tribunal, whose integral part it is, as
that would mean that it decided also on its own (il)legality, i.e., that it
decided “in its internal affair”, so that such decision does not have any legal
30
In fact, this could possibly be translated by our saying: “Better a sparrow in the hand than a
pigeon on the branch”, although it is not certain why A. Cassese uses this argument at all,
unless he was “tempted”, i.e., prompted, to do so by the previous Robertson’s observation that
the ICTY was a sort of fig leaf, however, the difference between the terms “leaf“ and “loaf“ is
significant.
31
A. Cassese, op. cit., р. 338.
32
Ibidem.
74
legitimacy, and it must not be considered, particularly in scientific papers, as
the absolute regina probationem of the legality of the ICTY.
After that, the cited author refers to the other critical remarks: “In
relation to the objection that the tribunal conducts trials in a biased way,
prosecuting predominantly Serbs (and considering that there was no criminal
prosecution of the NATO officials and leaders for the attack on Serbia in
1999),33 one should draw the distinction that must be made between the
prosecutor and the court. The prosecutor enjoys his own discretion, and inter
alia decides who to prosecute. The judges are only those who receive what
the prosecutor sends them and they cannot affect the specific choices made
by the prosecutor. And in addition, it is debatable whether the prosecutors
who have a very prestigious position would go so far in expressing anti-Serb
prejudices; they always claim that their prosecutorial criteria are simply
based on the availability of evidence.”34 In fact, the cited author obviously
does not justify prosecution (and when he does, he does it very “softly”), but
only the tribunal in relation to its judicial function, with a special mention
that the tribunal tries only those whose cases have been referred by the
prosecution, so that the only selection of the accused is done by the
prosecution. From this, we can even conclude that he, in a very cautious
way, but quite clearly, expresses that he himself is not fully convinced to
what extent the prosecution truly acts before the ICTY in an impartial
manner and independently. In addition, A. Cassese points out that the fact
that the prosecutors and judges are not segregated, and that they work in the
same building, still does not mean that they are dependent on each other, and
that the defence has the right to access evidence in the court building and the
archives of the tribunal, etc.35
Actually, the fact that the prosecution and the tribunal are housed in
the same building in itself is not the biggest problem in their special
relationship, and a more problematic issue is that of shared services, which
normally have a very important function, especially in relation to the
evidence – and primarily the registry (which is arguable also in case of the
permanent International Criminal Court, which will be later discussed),
33
We translated literally the author’s sentences, but this in fact refers not only to the
aggression against Serbia, but also against the former Federal Republic of Yugoslavia.
34
A. Cassese, op. cit., р. 338.
35
Ibidem.
75
which clearly implies that the prosecutor in relation to the other party to the
proceedings still obviously privileged, and that he has a special relationship
with the tribunal that exercises the judicial function. In fact, in many national
judiciaries, public, i.e., state prosecutors’ office is housed in the same
buildings as the courts, but in that case those are “special” or “technical”
connections, motivated by the need to reduce the costs of maintenance of
that public building, and even by a certain level of inertia in addressing the
special and business needs of the courts and prosecutors’ offices and similar
reasons. Although that is not an ideal solution, from the standpoint of some
principled relations between the court and the parties (and the state or public
prosecutor is primarily a party to the criminal proceedings), it does not
represent a substantial obstacle for conducting fair criminal proceedings, or
for ensuring the independence and impartiality of both the courts and the
prosecutors, as these bodies have strictly separate administrations and is
completely inconceivable that the same technical and administrative services
perform services for both the prosecution and the court.
Such administrative connections, i.e., the fact that the same technical
services performs services to both the prosecutor, as a party to the
proceedings, and the court, which should lead the process and impartially
rule in the given criminal matter, must inevitably cause doubts about the full
independence of these bodies in relation to one another, and in their
impartial and independent actions. Finally, in the logical sense, if the same
officials handle the prosecution evidence, which should then be evaluated in
an impartial manner by the court that leads the proceedings, there is reason
to assume that there is a significantly increased possibility of favouring the
prosecution evidence in relation to the defence evidence (which is also
directly contrary to the principled adversarial nature of the criminal
proceedings before ad-hoc international criminal tribunals), primarily by
administrative officials, which serve both the prosecution and the tribunal.
This ultimately leads to a specific functional connection between the
prosecutor, which is only a party to the proceedings, and the tribunal, which
should perform the judicial function impartially and independently, and that
is in direct contradiction with the important principle of criminal procedure,
the monofunctionality principle, i.e., it breaches to some extent also the
accusatory principle, and the principle of separation of the main criminal
procedural functions, or undermining their effect, all of which directly
affects the effective compliance with the principles of fair procedure in
specific cases that are the subject of the proceedings before the ICTY.
76
An argumentative critical review of the legality and legitimacy of the
creation of ad-hoc tribunals established by the decisions of the UN Security
Council, but also of certain issues relating to the actions of these tribunals is
demonstrated by H. Köchler, who supports his views by strong professional
arguments, including a particularly striking observation that the Security
Council had no right to establish a court, because the court is not a measure
that can be taken in accordance with Chapter VII of the UN Charter,
whereby: “In case of ad-hoc tribunals, the Security Council is not only the
creator of the court - as a sort of a supreme judicial authority, whereby it
arrogantly granted itself that such authorisation, which it does not have in
accordance with the Charter; The Council directly establishes the procedure
for action by that authority, thus indirectly interfering with its function. The
Council – by preparing a list of candidates for judges – assumes the decisive
role in the appointment of judges, and directly appoints the prosecutor. Such
authorisation in relation to the establishment of the tribunal and the
determination of the court proceedings – if it falls within the competence of
international organizations at all, could be under the competence of the UN
General Assembly, but not the Security Council. The relevant resolutions of
the Security Council on the establishment of the two ad-hoc tribunals for
Yugoslavia and Rwanda manifest the double interference of the
(international) executive in activities that are of judicial nature. Furthermore,
the authorisation of the UN Security Council – in terms of Article 13 (2) of
the Statute of the Tribunal for Yugoslavia, to appoint ad litem the judges to
sit in judicial councils manifests another interference of the executive in the
independent operations of the court.”36
In an illustration of his conclusions about the biased conduct by the
prosecutors, and also by the court, H. Köchler states that from the moment
the former Prosecutor Louise Arbour acted in a biased manner in relation to
the NATO’s aggression against FR Yugoslavia:37 “The independence of the
36
H. Köchler, Global Justice or Globar Revenge? – International Criminal Justice at the
Crossroads, “Springer“, Wien, New York, 2003, р. 171–172.
37
With respect to this, the cited author (Ibid., pр. 169–170), emphasises: “ The statutes of
both tribunals contain identical wording on the Prosecutor's independence: “The Prosecutor
shall act independently as a separate body of the International Tribunal. He or she shall not
seek or receive instructions from any government or from any other source.” However, the
current practice of the Prosecutor proves to be the opposite. In the case of the Tribunal for
Yugoslavia, the Prosecutor actually acted as an extension of the NATO alliance,
77
ICTY Prosecutor's role has been compromised. The performance of Ms. Del
Ponte, the successor of Ms. Arbours as “Chief Prosecutor”, reaffirmed the
perception of the Tribunal for Yugoslavia as a political court, before which
indictments are raised in accordance with the interests of the members of the
Security Council, which initiated the establishment of the Tribunal before
which the Prosecutor interprets his duties in a political manner. This was
evident when Ms. Del Ponte addressed the Security Council in New York on
29 October 2002, with a report on the difficulties in gathering evidence and
securing the appearance of the accused and witnesses, and the problems in
the surrender of the accused to the tribunals for Yugoslav and Rwanda.
Apparently, in an attempt to persuade the Security Council to take action in
this direction, Ms. Del Ponte has attempted to monopolize the role of
political analysts and commentators, which is somewhat incompatible with
the strictly judicial function of the Prosecutor in criminal proceedings. In her
address to the Security Council she stated: “The honourable judge presiding
has made it clear to me, as an interested observer of the political and security
situation in the Balkans and the Great Lakes region, that there is an
enormous danger of undermining the rule of law... impunity of causing
political intrigue, profiteering and corruption, widespread crime and the
culture of violence and terror.” By presenting herself - in an official
appearance before the Security Council - as an “interested observer” in
relation to the political situation, Ms. Del Ponte unlawfully assumed a quasipolitical role,38 obviously trying to influence the Security Council’s direction
in the assessment of the threat to the international peace and security.”39
complementary to the military campaign in Yugoslavia in 1999, complying with the dominant
NATO policy of “pacification” of the region of former Yugoslavia. According to our analysis,
the tribunal has largely been unable to demonstrate its action as a body of universal
jurisdiction. In relation to the influence of powerful political actors, similar problems are
evident in the establishment and operation of the International Criminal Tribunal for
Rwanda.”
38
Certain dissatisfaction with the “political action of the prosecution” is clearly manifested in
the ICTY as well. An example of this is the German judge Wolfgang- Schomburg’s interview
who was inter alia asked the following question: “In Belgrade, the cooperation with the ICTY
is rejected by many politicians and most citizens. Has this the emergence of this defensive
front provoked by the Chief Prosecutor Carla Del Ponte?” In his response to the question,
judge Schomburg stated: “A state prosecutor should focus on the process and cooperation
with the state in question, and, therefore, he or she should not get involved in the daily
political events. It does not help to complain about the lack of cooperation before the
78
In an example of biased action by the court, H. Köchler states: “The
political dimension of these ad-hoc proceedings of criminal law40 becomes
apparent not only through the actions of Prosecutor, but also through the
actions of the independent judges. In the case of the trial of the former
President Milosevic, Robert May's political prejudices were well
documented through repeated live television broadcasts. What has become
apparent to independent observers is that Mr. May conducted the sessions
more like a public inquisitor than as an independent judge. 41 He acted as a
sort of censorship in relation to the statements of the indicted former
President Milosevic and always intervened in time when he had to support
the prosecution's witnesses. All in all, he often appeared in the role of the
prosecutor. As Ian Johnson described it in his report of the trial: The
procedure gained its expected course. One did not have to be terribly bright
to understand the following: A) the witness accounts a well-rehearsed story.
B) If the witness gets into any difficulty during the cross-examination, the
judge intervenes.”42
A previously cited author emphasises: “Instead of achieving the role
of the guarantor of justice that it assigned to itself by having founded the
international criminal courts, the Security Council has made the problem of
international criminal justice43 even worse. Ad-hoc jurisdiction and the
elections, although it is clear that the responsible parties in the region are in a difficult
situation. It would seem better to encourage them rather than use threats and intimidation.”
Source: “Spiegel“, No. 3, from 17 January 2005, Hamburg, 2005, р. 97.
39
H. Köhler, op. cit., р. 179.
40
The cited author writes here about “two criminal proceedings”, but he does not refer to two
specific criminal proceedings, but actually to two ad-hoc criminal tribunals, i.e., he writes
about the tribunal for the former Yugoslavia and the tribunal for Rwanda, which can be
construed for the terms he uses – “The political dimension of these ad-hoc proceedings of
criminal law...“
41
What has become apparent to independent observers is that Mr. May conducted the sessions
more like a public inquisitor than as an independent judge.
42
H. Köchler, op. cit., р. 180.
43
H. Köchler (ibid., р. 181–182), emphasises the combination of political and legal (judicial)
factors in the actions of the Security Council, so that the legitimacy of the ad-hoc tribunals is
based on their selective establishment, thereby practically compromising their legitimacy,
which is reflected in the completely new designed or desired, and in fact political or at least
non-legal objectives of certain trials, and thus, for example, in September 2003, the former
US Ambassador-at-Large for War Crimes suggested that the establishment of an ad-hoc
tribunal for Iraq “could pave the way for future UN authorisation of the military action against
79
framework of different interests of the permanent members of the Security
Council – i.e., the old-fashioned framework of power politics - will not bring
progress in the standards of international criminal justice. In such
frameworks, it will not be possible to ensure the independence of the court
and guarantee the impartiality of the criminal proceedings. Quite the
contrary: through the practice of establishing courts under the rules of
Chapter VII of the UN Charter, the Security Council inhibits expression of
universal jurisdiction - allowing it to function only in accordance with the
political criteria defined mainly by the permanent members – and that is
something that undermines the universal mission and the authority of the
International Criminal Court, which is now at its initial stage.”44 In fact,
although we completely agree with the argumentative critical approach of H.
Köhler to the ad-hoc tribunals for the former Yugoslavia and Rwanda, and
primarily the legally disputable way in which they were established, and
their action, which is often biased and inconsistent with the necessity for the
judicial authorities to be truly independent, we are of the opinion that those
facts in themselves do not necessarily have to influence negatively the future
of the International Criminal Court. In fact, that court was established on a
completely different legal basis, its legality can not be disputed in any
respect, and with regard to its acceptance by the majority of the states in the
international community, it will practically gain universal jurisdiction, and
undoubtedly have a very high legitimacy from the very beginning. And
exactly due to the noted contrast that exists between the International
Criminal Court and the ad hoc tribunals, the concept of universal justice in
relation to international crimes, although it does not seem so at first glance,
can essentially be strengthened, which will depend, on the on the one hand,
on the future effective operation of that permanent court, and on the other
hand, on the proper understanding of the place and importance of the ad-hoc
tribunals in the history of international criminal justice, and in our opinion,
their establishment and operation contributed to the distortion of the ideas
about universal justice at the international law level, which is why the court
practice created in the proceedings that have taken place before them should
Iraq, in order to neutralize all weapons and terrorist threats, and ensure the change of the
regime with international support”, to ensure that later: “a completely new situation is created
after the war against Iraq that was launched in March 2003 without the permission of the
Security Council by the USA and the UK.”
44
Ibid., р. 184.
80
not be given great importance. However, that fact exactly does not a priori
have to have an undermining effect on the authority of the International
Criminal Court, but to the contrary it may even strengthen it, as it is, with all
its the essential elements, the opposite of the ad-hoc tribunals, but of course,
it is necessary that it really does act in an impartial and independent manner,
for which the necessary formal conditions have largely been ensured, but the
further development of events will, to a large extent, depend on the actual
conditions, primarily those related to the attitude of powerful international
political factors in relation to the permanent International Criminal Court.
3. Dominant Type Of Proceedings Before Ad-Hoc Criminal Tribunals
And Unfavourable Position Of The Defence
Ad-hoc criminal tribunals established in the period after World War II
are characterised by the fact that their procedure is essentially created in
accordance with the typical Anglo-Saxon rules of criminal procedure. The
main feature of the procedural process before the ICTY (Tribunal for the
former Yugoslavia) in the general conceptual terms is that its structure is to a
greater or lesser extent based on the basic principles of the classic AngloSaxon type of procedure (adversarial procedure), with certain modifications
which do not significantly change its distinct concept based on this type of
procedure. For example, it is sometimes argued that the absence of the jury
is an essential element of the European-continental process, considering that
the jury is an important element of the classic Anglo-Saxon procedure. This,
in fact, is not essential, as that issue is far less important than the issues of
the presentation of evidence, the relationship between the court and the
parties, the court’s role in relation to the evidence and proofs, and the
important conceptual issue of the status of the parties, which is all regulated
in a way that is typical of the Anglo-Saxon procedure. In addition to that, the
phased construction of the criminal proceedings before the ICTY itself is,
primarily due to its multi-layered character and some of the characteristics
typical of continental European criminal procedures, although this
procedure, regardless of the combination of certain procedural elements of
the two major contemporary legal systems, closer to the Anglo-Saxon
concept of criminal proceedings.
Given that this tribunal is in Europe, and that all proceedings before
the tribunal are held, and tall the crimes for which individuals are prosecuted
occurred in Europe, and that all the accused, victims and most of witnesses
81
also come from Europe, it is pretty strange and difficult to understand why
these proceedings do not take place according to the continental European
rules, but, on the contrary, according to the rules that do not have much in
common with the traditional type of procedure that is dominant in the
continental Europe.
From the point of view of the position of the accused in criminal
proceedings, the use of diametrically opposed rules in relation to the rules of
criminal procedure in the states of origin of the accused makes their defence
even more complex and considerably more difficult, which can be viewed
also as a violation of the principle of fair trial.
4. Violation Of The Presumption Of Innocence Even In ICTY’s
Official Name
The official name of the Hague Tribunal in the English language is:
International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law committed in the Territory of
Former Yugoslavia Since 1991. The Serbian translation of name of the
Hague Tribunal is: “Međunarodni tribunal za gonjenje lica odgovornih za
teška kršenja međunarodnog krivičnog prava na teritoriji nekadašnje
Jugoslavije od 1991.” This name contains within it some serious
contradictions, which by its meaning are beyond the level of incorrect
terminology, and go into much more serious legal and procedural issues. In
fact, the name refers to “prosecution”, which is rather the task of the
prosecution, and not the tribunal, but this could also be explained by the fact
that the prosecutor files indictments acts to the tribunal, and that the tribunal
in turn leads the proceeding and takes the appropriate decisions, i.e.,
adjudicates, and that the prosecution is even functionally linked to the
tribunal, and that the indictment act always logically precedes to the decision
of the court, and usually it is not always easy to use a completely “clean”
and absolutely indisputable criminal procedure terms, and similar
terminology problems can sometimes be found in many national criminal
procedure legislation.
Such a functional relationship between the Prosecutor and the ICTY in
itself is a serious anomaly, as in any modern national legislation it is
inconceivable that the authority conducting the proceedings and rendering
judgment (the court) is in close organizational and functional connection
82
with one of the parties. Such an association in the form of institutional unity
between the Prosecution and the Tribunal is a sort of deviation from the
principle of the separation of the main procedural functions, and in the
broadest sense, it contravenes the accusatory principle. This solution is
contrary to otherwise distinguished adversarial nature of the criminal
proceedings before the ICTY, i.e., construction of the procedures which
typically reflects a normative framework of a legal conflict between the two
parties that is to be resolved by third body of judicial nature, which could be
independent and impartial both in relation to any of the parties, and in
relation to any other external factor.
However, that name implies that the persons against whom indictment
acts still have to submitted are already predetermined as “persons
responsible for grave (serious) violations of international humanitarian law.
In fact, this on the one hand prejudices the court’s decision, as those persons
are in advance and a priori identified as responsible, and on the other hand,
it contests the presumption of innocence, which is not only a part of the body
of internationally recognized human rights, but it also exists in the strict
sense in the form of rules governing the work of the ICTY itself. If it is
known that someone is responsible for a crime, and if it is also assumed that
there is no doubt that certain crimes were committed, then the main
requirement of criminal procedure has already been met, and there is nothing
else to prove, the ratio of the proceedings in terms of determining the merits
issues is lost, and in fact, one could only consider the specific criminal
sanction, which is of course absurd, and is reduced to roughly prejudicing
the possible outcome of proceedings before the Tribunal. Such prejudices
and seriously terminology errors in accordance with the official English
name of the ICTY, can be observed even in the Article 1 of its Statute which
states that: “The International Tribunal shall have the power to “prosecute”
persons “responsible” for serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1991…” If the
persons who are under the jurisdiction of the ICTY are referred to as
responsible, that comes down to the already described “prejudiced
approach,” and if the jurisdiction of the tribunal includes prosecuting, that is
a grave terminology and fundamental mistake, as in this way the main
function of the Prosecutor – criminal prosecution – is “transferred” to a body
whose main function is to conduct the proceedings and adjudicate, and
whose function, considering the effect of the principle of monofunctionality
83
and separation of main procedural functions, should not be criminal
prosecution in any respect.
As a matter of fact, the ICTY’s name in the French language (Tribunal
international charge de poursuivre les personnes presumees responsbles de
violations graves du droit international humanitaire commises sur le
territoire de l'ex-Yugoslavie depuis 1991), which is also considered an
original language of the Statute (although much less frequently used in
practice), at first glance, is better than the name in the English language, as it
does not contain any reference of substantive criminal law, which would
necessarily be reduced to presumption of guilt. In fact, unlike the English
name, the French wording does not contain the phrase “persons responsible
for...,” which practically defines the perpetrators, i.e., culprits, and it rather
mentions “persons allegedly responsible for...,” which does not immediately
imply presumed guilt in terms of substantive criminal. Also, in the name in
the French language, the court is not granted the procedural role of
prosecution, as is the case in the English name.
However, the name in the French language is not correct either,
considering that, although it does not presume guilt as a concept of
substantive criminal law, it still contains significant prejudices, but in a
different way.45 In fact, guilt not presumed indirectly, rather than directly,
and in the manner and terminological form that is not permitted in
democratic criminal proceedings, and here, it boils down to a very specific
legal anomaly, which, at first glance, substantially impairs the position of the
accused. Specifically, it in fact formulates presumption of responsibility, i.e.,
presumption of guilt, which is contrary to the important criminal procedural
rule (guaranteed by an array of international law acts), that the accused is
presumed innocent until proven contrary in a final court ruling - the
presumption of innocence, i.e., presumption of absence of guilt. This name
implies that the accused is hypothetically considered guilty, as his
45
Сf: V. Rakić-Vodinelić, Prikaz pravila o postupku i dokazivanju Međunarodnog tribunala
za suđenje licima za koja se pretpostavlja da su odgovorna za teške povrede međunarodnog
humanitarnog prava, učinjene na teritoriji bivše Jugoslavije od 1991. godine, in: V. A.
Vasilijević (ed.), “Međunarodni krivični tribunal”, “Prometej”, Belgrade, 1996, p. 104. The
Cited author favours the French name, considering it better than the English one (for which
she notes that it is contrary to the presumption of innocence), but at the same time, she does
not realise that name in French, in fact – explicitly contains the presumption of guilt.
84
responsibility is presumed, from which it might even imply also that he bears
the burden of proving his innocence, which would be completely absurd.
There is no dispute that in respect of the accused in any criminal
proceedings, there must be a certain degree of suspicion as defined by law
(in our process, justified grounds to believe, and similarly in the German
criminal procedure, etc.), but that suspicion must not be legally and
technically defined as a presumed guilt, i.e., responsibility, as it is directly
contrary to the effect of the presumption of innocence, which is included in
the minimum standard for criminal proceedings in democratic countries.
5. Sources Of Law Applicable To Proceedings Before ICTY And
Elements Of Inequality Of The Parties
The main source of law relating to proceedings before the ICTY, as
well as its organization, is the act by which the tribunal was established, and
that is the Statute of the International Tribunal, adopted by United Nations
Security Council, in accordance with Chapter VII of the UN Charter and
Resolution 827 dated 25 May 1993. While the Statute does not regulate the
process itself, describing it only in basic details, its Article 15 stipulates the
adoption of the ICTY Rules of Procedure and Evidence (RoPE), which
further specifies the criminal proceedings before the ICTY.46 Those Rules
were adopted on 11 February 1994 by the Tribunal itself, based on the
authority contained in the Statute, and they came into force on 14 March
1994. It is generally uncommon that the authority that performs one of the
main functions in criminal proceedings (in this case the judicial function,
i.e., function of leading the proceedings and sentencing) adopts the rules
relating to its work and the discharge of that function. It is difficult to find a
legal base for such a solution in the national criminal procedure legislation,
although in the Anglo-Saxon legal system, the court can resolve itself
specific ad-hoc procedural issues, but even there the court does not specify
the complete rules of procedure and evidence, i.e., does not regulate to a
substantial extent the main issues of criminal procedure.
46
International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and
Evidence, U.N. Doc.IT/32/Rev.7 (1996), entered into force 14 March 1994, amendments
adopted 8 January 1996. – University of Minnesota, Human Rights Library –
http://www1.umn.edu/humants/icty/ct-rules7.html.
85
In addition, the rules of procedure and evidence are not of
unchangeable nature, and they can be changed by the Tribunal “on the fly”,
depending on the needs of the specific case, i.e., in case it deems it is
necessary, which is also an unusual solution in comparison to the national
legislation. It can be argued also that that possibility is also contrary to the
rules relating to legal certainty, with respect to proceedings that have already
been initiated in accordance with certain rules. Specifically, if the proceeding
has already started, then the parties to proceeding, and primarily the accused,
in accordance with their rights of defence, “count” on the procedural rules
that applied at the time of its commencement, and any change in the rules
may disrupt their position in the process, and in general sense, it is contrary
to the legal certainty that represents an important segment of the overall
standard of fair trial. Article 6 of the above Rules specifies also the
procedure for their prospective revision. Proposal to amend the rules may be
submitted by any of the alternatively appointed entities: 1) the judge, 2) the
prosecutor or 3) the registry. A certain favouritism of the “prosecutor” party
is evident even at this point, as that party has the right to propose
amendments to the Rules, which the defence cannot do, which is contrary to
the rule that the parties in the framework of fair trial must have
approximately equal procedural rights and opportunities. This is a sort of a
deviation from the accusatory nature of the proceedings, which is also a form
of degradation of the position of defence. The changes are decided at a
general meeting, and in order for a certain change to be adopted, it has to be
voted in favour by seven out of eleven judges. It is essential that the
proposed amendment is disseminated to all judges in advance. Exceptions
from this regular method for the revision of the rules are possible, but in that
case, a change can be adopted only if a consensus about it is reached, i.e., if
it voted in favour by all the judges.
6. Termination Of Office Of Judges, Absence Of Judges, And
Exemptions From The Principle Of Immediacy In Criminal Proceedings
As A Violation Of Defence Rights
In a general sense, office of a judge in the ICTY shall cease upon the
expiration of the period for which he was elected, i.e., upon expiration of his
term, but as it has been said above, there is a possibility of reappointment.
Another way of termination of office of a judge is resignation (withdrawal of
judges), which is communicated in writing to the President who shall
86
transmit it to the Secretary-General of the United Nations (Article 16 of the
Rules).
As nothing is said about the grounds, it can be concluded that the
judge is not obliged to explain his resignation, and with the exception of
resignation, the Statute and the Rules do not recognise other means of
termination of office of a judge, which is a serious legal gap.47 In fact, all
relevant national legislation stipulates grounds for termination of office of
judges, and as this is such an important matter, it is, as a rule, at least in
general terms, regulated also under constitutional laws acts. A major
weakness of the rules of procedure applied by the ICTY that can be singled
out is the lack of a strictly defined obligation for the Trial Chamber to
remain in the same composition, or if a judge of the Chamber, and
particularly the presiding judge, is changed, that that should lead to a
mandatory re-presentation of the previously presented evidence before all
the judges of the Chamber, or at least to some sort of a “validation” of the
previously presented evidence, through obtaining consent of the parties,
reading the transcripts relating to the presented evidence, etc. An example of
this occurred in probably the most notable trial that is taking place before the
ICTY, in the case of an action against the former Serbian and Yugoslav
president, Slobodan Milosevic.
In fact, Judge Theodor Meron, President of the ICTY, stated on 22
February 2004 that Presiding Judge of the Trial Chamber in trial of Slobodan
Milosevic, Judge Richard George May had informed him of his resignation
as a Judge of the International Tribunal, due to health reasons.48 This
resignation on grounds of poor health came after more than two years, when
the prosecution finished the presentation of their evidence, and when, after a
three-month break (designated for the preparation of the defence case), the
defence was to begin with the presentation of their case. In his statement,
President of the ICTY states inter alia that Judge May had worked tirelessly
on the cases before the ICTY for more than six years, and served for five
years as Chair of the Tribunal’s Committee on the Rules of Procedure and
Evidence, emphasizing: “The Judges and staff of the Tribunal shall continue
47
V. Rakić-Vodinelić, op. cit., р. 107.
The Hague, 22. February 2004. – MF/P.I.S./824e –
http://www.un.org/icty/pressreal/2004/p824-e.htm.
48
87
to work hard to fulfil the historic mission of the Tribunal, even in Judge
May’s absence. I am confident that Judge May’s resignation will not have an
unduly disruptive effect on any proceedings before the Tribunal. The conduct
of the Milosevic trial remains in the safe hands of Trial Chamber III.”
That implies that, in all likelihood, at the time that statement was
given, it has already been considered that the Presiding Judge for the Trial
Chamber in this case should be simply replaced, or even that the Chamber
can continue uninterrupted operations even without its previous Chair, which
had in fact already practically happened, while Judge May was absent due to
illness,49 several days prior to his resignation, i.e., the trial was continued
before the incomplete Chamber, which is, as we will later explain, in
accordance with a new provision of the Rule of Procedure and Evidence (15
bis), formally possible, but is not a preferred solution. That in fact violates
the principle of immediacy,50 as the evidence is presented before the
remaining judges of the Chamber. If there was a possibility for the
proceedings to be continued before a “truncated” Chamber, that would not
violate the rule that does not exist as such in a clear form in the rules of
procedure applied by the ICTY, but which is recognised in many national
legal systems, and which implies that only the judges who have had access
to the complete evidence hearing may rule in the case, but in that case the
validity of such ruling could be questioned, as the ruling would not be made
by all the judges of he Chamber, and for purely practical reasons,
considering that such incomplete Chamber would comprise two judges,
during discussion and voting, the votes could be divided, preventing any
ruling.
The issue of ruling, and thus the legitimacy of the judgement, is
relevant also in the event of the incomplete Chamber due to a short-term
absence of one of the judges. Conversely, if the a new judge is assigned to
the remaining Chamber, which was ultimately done in the trial of former
president Milosevic, and thus achieve its projected full composition, the
issue can be raised in terms of the legitimacy of such complete Chamber to
rule in the case in question, considering that the new judge was not present
49
Judge May died shortly after his withdrawal from the function of a judge of the ICTY.
For further details see: M. Škulić, Krivično procesno pravo, četvrto izdanje, Pravni fakultet
Univerziteta u Beogradu, Belgrade, 2012, pр. 58 – 61.
50
88
for much of the evidence hearing procedure or practically during one half of
the hearing. Such a judge, therefore was not present during the entire
presentation of evidence by the prosecution, which, even though that issue is
not strictly regulated by the rules of procedure, and especially for moral
reasons, founded on the logic of the criminal proceedings and ruling in
criminal procedures, disqualify such individuals in the guilt of the accused,
disqualifies him from deciding on weather the accused is guilty. He can get
an insight into the previously presented evidence only indirectly, i.e.,
primarily by familiarising himself or herself with the record or possibly by
watching video recordings, but that violates the principle of immediacy,
which is a formal anomaly, and that is essentially an unsatisfactory solution,
as it is well known that every piece of evidence that is presented before the
court, and particularly examination of witnesses, has its distinct
characteristics that are important for the assessment of its relevance and
credibility, which is fully observable only if the judge is directly present at
the trial. It is very difficult for someone to get a realistic understanding, just
by reading the records, or even by watching and listening to video and audio
recordings, for example, of how convincing a witness was, whether he or she
got confused and why, whether it seemed that he or she who giving a wellrehearsed account, or to the contrary, weather he or she was convincing, etc.
The issue of absence of judges is regulated to some extent in Article
15 bis of the Rules of Procedure and Evidence. It contains different rules
relating to absence of a judge for short duration, absence for longer duration,
i.e., absolute absence and permanent absence, in the cases when the judge
has lost his status of a judge in the ICTY at his or her will or outside of his of
her will. In addition, it regulates the event of performing other tasks related
to the work of the Chamber, which are not directly related to the trial, and
this solution is by its logic less controversial and important, as it does not
pertain to crucial procedural matters that relate to the presentation of
evidence and deciding on guilt of the accused. In case a judge is, for illness
or other reasons, unable to continue sitting in a part-heard case, President of
the Tribunal may, if he or she deems it in the interest of justice, authorise
those remaining judges of the Chamber to perform routine tasks, such as
delivery of the judges decision even in the absence of one or more members
of the Council (Rule 15 bis F).
If a Judge is, for illness or other urgent personal reasons, unable to
continue sitting in a part-heard case for a period of short duration, the
89
remaining judges of the Chamber may, if they are satisfied that that is in the
interests of justice, order that the hearing of the case continues in the absence
of that judge, but the case in the absence of that judge can be continued for a
period of not more than five working days (Rule 15 bis А). This option is not
justified, because practically for five working days, or rather five “trial” days
the case can continue before the remaining Chamber, which is generally
contrary to the principle of immediacy, and on the other hand, during those
five days, very important evidence can be presented, which the absent judge
will not hear directly, regardless that he or she can subsequently familiarise
himself or herself with them in an indirect way, by reading the records, or by
familiarising himself or herself with substantive evidence, etc. In addition,
considering that an incomplete Chamber comprises two judges, this can lead
to the division of votes, i.e., inability to resolve this issue, which is a less
harmful consequence than the potential division of votes during the case that
is continued before the “truncated” Chamber. Furthermore, is not correct in
principle to have any consultation with the parties about this possibility,
considering that they do not have the right to consent to the continuation of
the case in the absence of a judge, and that there is even no obligation of the
Chamber to officially require their opinion. If the remaining judges of the
Chamber are not satisfied that it is in the interests of justice to order that the
hearing of the case continues in the absence of that judge that will likely be
of short duration, the hearing will not be continued, but regardless of that,
the remaining Judges of the Chamber may order the case to be continued,
whereby it can be adjourned by the presiding judge for the Chamber (Rule
15 bis B).
The Rule 15 bis C regulates the event of permanent or long-term
absence of a judge, stipulating the regular procedure in that event, while the
following rule (15 bis D) regulates the exceptional procedure in this event. In
the event a judge dies, becomes ill, resigned as a judge in the tribunal, or is
not reappointed, and in the event of any other reason which makes it unable
for him or her to continue sitting in a part-heard case for a period which is
likely to be of longer duration, the presiding judge shall inform President of
the Tribunal thereof, and he or she may assign another judge to the case and
order either a rehearing or continuation of the proceedings from that point,
based on his or her judgment (Rule 15 bis D). However, in the event that the
parties have already presented their opening statements pursuant to Rule 84,
and the presentation of evidence had been initiated (Rule 85), the
continuation of the proceedings can only be ordered with the consent of the
90
accused (Rule 15 bis D). This is in itself a correct solution, although in
principle there is no reason to seek only the consent of the accused, and not
the other party, i.e., the prosecutor, as well. In fact, this solution implies that
also the creators of the rules of procedure (which is the tribunal itself, and
this is in accordance with a new rule that was introduced based on some
previous experience in terms of the permanent or extended absence of
judges) perceive the prosecutor rather as a part of the tribunal itself, and not
as a procedural party, which it should ultimately be. However, this solution
is not of absolute importance, as it implies a major exception.
In the event that the accused withholds his or her consent to the
replacement of a judge in the Trial Chamber, the remaining judges of the
Chamber may order the case to continue with a new (reserve) judge, if after
having taken into account all the circumstances, they unanimously find that
it is in the interests of justice. Such a decision, i.e., any decision by the
remaining judges of the Chamber, may be contested in an appeal that is
handled by all the judges of the Appeals Chamber, whereby both the parties
enjoy the right to appeal. Appeals against decisions by the remaining judges
of the Chamber may be filed within seven days from the delivery of the
decision that is contested, and if such decision has been delivered orally,
from the moment it was announced (Rule 15 bis Е). In the event that no
appeal has been filed, the decision by the remaining judges of the Chamber
shall begin to produce its legal effect, and President of the Tribunal shall
assign to the existing bench a Judge, who, however, can join the bench only
after he or she has fully familiarised himself or herself with the record of the
proceedings. This applies also in the event that the appeal against the
decision on continuation of the proceedings with the substitute judge is
rejected by the Appeals Chamber. This allows for only one substitute of a
judge in one Chamber during one trial (Rule 15 bis D). This solution is
inadequate, as it is not logical to allow this substitution of a judge of the
Chamber in accordance with this procedure and against the will of the
parties, and primarily the accused (who had previously been granted that
right). The ability of the new judge to familiarise himself or herself with the
record of the proceedings is generally limited, both in terms of time and
substance, as reading the transcription of the testimony given, listening to
and viewing audio and video recordings, etc., it is not the same as being
physically present during the presentation of evidence. It suffices to point
out the great importance of the symptomatic images of those giving
testimony (primarily witness) for the judge’s assessment of the credibility of
91
such testimony for it to be completely clear that a judge who was not present
during the entire trial cannot in any respect be qualified to participate in the
court’s ruling in relation to the guilt of the accused.
If the judge could not make a decision just like that, and get
understanding of the probative value of the evidence presented during the
trial by a mere examination of the record of the proceedings, and even the
video recordings, then there would be no need to stage classical trials, and
the principle of immediacy in the criminal procedure would not be of such
great importance that it is given with a reason in all modern criminal
proceedings. As this is not possible, because it is very important for the
judge who has to decide on the guilt of the accused to be present during the
presentation of evidence, and to be a part of a functioning judicial form
(normally a Chamber) before which the evidence is presented and
immediately gain an impression of probative credibility of the evidence, as a
rule, the tendency is to keep the Chamber in the same composition
throughout the trial, and the replacement of a judge of the Chamber normally
requires a rehearing, i.e., exceptions to that rule are possible, but they are
defined rather in a very restrictive manner, and not in a routine manner, as is
prescribed in the above Rules of Procedure of the ICTY. Additionally, it
does not distinguish between the judges – the members of the Chamber, and
the presiding judge, although such a distinction would have to relevant in
terms of resolving this issue. It is interesting to see that it requires a
unanimous decision of the remaining members of the Chamber on the
continuation of the proceedings with the reserve judge, which is completely
unnecessary, as such a decision cannot be but unanimous, considering that
the Trial Chamber remains with two judges, and if they do not consent and if
they are not unanimous, there can be no positive decision. In the
aforementioned trial of former president of Serbia and Yugoslavia Slobodan
Milosevic, a new judge was finally assigned to the Chamber, who had
previously stated that he was fully familiarised with the case, i.e., that he
read all the previous records of the trial, which normally, even at first glance,
does not sound entirely convincing, given the volume of material and the
fact that it practically pertained to one “half” of the trial (“the party half of
the trial”), i.e., presentation of evidence by the Prosecutor. This, on the one
hand, probably boils down to reading the so-called abstracts prepared by the
support services for the new judge assigned to the Chamber, and it usually
92
does not mean familiarising oneself with the original record of the
proceeding and other material evidence,51 while, on the other hand, that is
not only a major precedent from the principle of immediacy, but the new
judge assigned to the Chamber could realistically get a very superficial and
relatively tentative understanding of the evidence presented during the trial
when he or she was not present.
7. Selection Of Prosecution Cases And Partiality Of The Prosecutor In
Criminal Proceedings Before ICTY
The Prosecutor is appointed by the UN Security Council, at the
motion by the General-Secretary of the United Nations, and it is interesting
that there is no requirements in terms of the Prosecutor’s professional
qualifications and education, and that the Statue provides only that the
Prosecutor shall be of high moral character and possess the highest level of
competence and experience in the conduct of investigations and prosecutions
of criminal cases (Article 16, Para. 4).52 This seems to refer primarily to
persons with judicial background, but the terminology that is used is not
51
At the same time, one must not forget that the records of the proceedings themselves are
only one type of “process evidence transmission” in relation to the directly presented
evidence. For example, a witness’s testimony that a judge of the Chamber before which the
witness is questioned can hear while observing the witness, his or her symptomatic image,
and the way in which he or she responds to questions, with the right to pose questions to the
witness and ask for clarification of certain elements of the testimony, etc., can never be
faithfully reflected in any records, based on which the judge could later familiarise himself or
herself by reading, regardless of whether the records are made based on “entry of essential
contents of the given testimony,” or based on transcripts , which is more authentic. Even
familiarising oneself with audio and video recordings of the hearing of witnesses, although
this method of insight into already presented evidence is far better than reading records of the
proceedings, and particularly of their “abstracts”, cannot be considered a direct insight into
the evidence of this type, i.e., witness’s testimony.
52
This implies that even the jurists who have no prior experience in criminal matters are
eligible to
become Prosecutor in the ICTY. A few years ago, when the first ICTY
Prosecutor, Richard Goldstone, was a guest at the Belgrade University Law School, in his
lecture to students, among other things, he said that before he became an ICTY Prosecutor, he
had no prior experience in criminal law matters, and that his choice had been influenced by
political, rather than legal criteria. The former Prosecutor Goldstone also said that the first
indictment was “forced” in a certain way because the ICTY Prosecution was explicitly
informed that if no one had been indicted in the foreseeable period, the funding would have
ceased.
93
precise, and in addition to that, the formulator of the Statute did not take into
account that different legal systems recognise different investigative
competencies – in some systems it is exclusively judicial, in others it is
prosecutorial, while some countries even have police investigation. The
Prosecutor serves for a four-year term and is eligible for reappointment
(Article 16, Para.4). The Prosecutor can make recommendations to the
Secretary-General of the United Nations for the appointment of a Deputy
Prosecutor, who exercises the functions of the Prosecutor in the event of the
latter’s absence from duty or inability to act or upon the Prosecutor's express
instructions (Article 38 А and B of the Rules). With that respect, the
literature concludes: “The procedure of appointment of the Tribunal's
Prosecutor is even more directly under the control of the Security Council.53
In accordance with Article 16 (4) of the Statute, the Prosecutor is appointed
by the Security Council, “on nomination by the Secretary-General” of the
United Nations. Considering the implications of the right to veto as specified
in Article 27 of the UN Charter, this implies that the super powers have
unlimited control, ensuring political dependence of the person to be
appointed. The performances of the Prosecutors Louse Arbour and Carla Del
Ponte clearly illustrate the intricate connections between the Tribunal and
the international political power centres.54
In Accordance with Article 16, Paras. 1 and 4, of the Statue of “The
Hague Tribunal”, the Prosecutor appointed by the Security Council on
nomination by the UN Secretary-General shall be responsible for the
investigation and prosecution of persons responsible for serious violations of
international humanitarian law committed in the territory of the former
Yugoslavia. This provision grants the Prosecutor the indictment function,
which can be defined as the initial process effect of the accusatory principle,
but at the same time it grants this entity the right to conduct an investigation,
which consequently is of no judicial nature, but of (single-)party nature. The
Prosecutor prepares an indictment if satisfied in the course of an
investigation that there is sufficient evidence to provide reasonable grounds
for believing that a suspect has committed a crime within the jurisdiction of
53
The cited author has previously written about the high level of control that the Security
Council and especially its permanent members have on the selection of judges, which impairs
their independence, and the appointments are based predominantly on political criteria, i.e.,
the influence of the great powers.
54
H. Köchler, op. cit., р. 169.
94
the Tribunal. The Prosecutor forwards the indictment to the Registrar, who
forwards the indictment and accompanying material to the designated Judge,
who examines it and determines whether to accept it or reject it (Rule 47, the
Rules of Procedure and Evidence). In accordance with Rule No. 51 of the
Rules of Procedure and Evidence, The Prosecutor may withdraw an
indictment without any leave at any time before its confirmation, and
afterwards, but only with the leave of the Judge who confirmed the
indictment, or if the presentation of the case has initiated pursuant to Rule
85, only with the leave of the Trial Chamber. This implies that the
Prosecutor may in accordance with accusatory principle to raise an
indictment and thereby initiates the proceedings, but if the proceedings has
already started, which is manifested by confirmation of the indictment by a
Judge, the Prosecutor no longer has the right to indict to the full extent,
because it has no discretion to withdrawn the indictment, and can do so only
with the leave of the Judge who had previously confirmed it (conditioned
sustaining effect of accusatory principle). This practically introduces a
unique “dual key” system to suspend the proceedings due to the withdrawal
of the Prosecutor, which is a clear deviation from the accusatory principle,
with the combination of the indictment and adjudication functions, whose
ratio is apparently contained in the desire of the creators of such procedural
rules to put the accused in the worst possible position, and to “ensure” the
maximum duration of the proceedings at any cost.55
Our assessment of the above rules has unfortunately been confirmed
in practice in a very obvious way.56 General Djordje Djukic, a member of the
Republic of Srpska Army, was tricked and completely illegally, on his way
55
Naturally, the principal judicial review of certain Prosecutor’s activities, and in this case
withdrawal from prosecution, has its positive side, particularly in the proceedings that are
characterized by the absolute effect of the ne bis in idem principle, when it comes to final
judgement in favour of the accused, i.e., when it is not possible to reopen a criminal
proceeding against the accused. However, in the cited example (the case of General Djukic),
this review, i.e., judicial contest of the previous position of the Prosecutor, had also a very
inhumane character, as it related to a terminally ill person, which in turn "cast a shadow" to a
considerable extent on the ratio legis of such procedural mechanism of the official and
voluntary judicial review of the Prosecutor's withdrawal from prosecution.
56
For further details see: K. Čavoški, Hag protiv pravde – Bruka Međunarodnog krivičnog
suda za bivšu Jugoslaviju u slučaju: Tužilac protiv generala Đukića, “Međunarodna
krivičnopravna pitanja i Haški Tribunal”, projekat – “Srbija – pravna država”, Pravni fakultet
u Beogradu, Volume No. 18, Belgrade, 1997, pр. 131–143.
95
to join the official talks with the representatives of the international
community, arrested by the Muslim police. In February 1996, the Muslim
authorities handed him over to “The Hague Tribunal” without any grounds,
after intense political rather than legal considerations. The Prosecutor raised
the indictment only after political agreements. The proceedings against
Djukic dragged on forever, and all that time the defendant was in detention
without adequate medical care, although he was gravely ill. Finally, after
doctors confirmed that General Djukic was actually on his deathbed, the
Prosecutor expressed intention to withdraw the indictment “for humanitarian
reasons,” but the court did not accept it, and soon after that decision of the
court General Djordje Djukic died during the trial, which obviously from
some “higher interests” could not have been suspended, i.e., was not allowed
to be suspended.
The Prosecutor in the proceedings before the ICTY basically has quite
a few similarities with the classical state, i.e., public prosecutor that exists in
the most modern criminal procedure systems, but perhaps the main
difference is that the ICTY Prosecutor has much wider powers in terms of
the selection of prosecution cases. At the same time, this does not pertain to
the classic forms of the opportunity principle in criminal prosecution, which
exist in all modern-day criminal procedure systems, 57 and which are based
on the expressly specified legal grounds, but to a form of a broad-based
discretionary right, which is based on the practice of the Prosecution, rather
than on the formally established grounds. In that respect, it is evident that
from the beginning of ICTY’s operation the Prosecution has tended to indict
primarily the persons in high hierarchical positions, whenever that was
possible, but that at the initial stages of the ICTY’s operation, evidently to
prove its purpose, criminal prosecution had been activated also against
persons at lower hierarchical positions,58 i.e., all those who were available,
which is best illustrated by the case of the first ICTY indictee Dusko Tadic.
The selection of prosecution cases, i.e., raising indictments by the Prosecutor
in the proceedings before the ICTY, is also directly connected to the
57
For further details see: S.Seiler,
Strafvprozesrecht, 10. überarbeitete Auflage,
„Facultas.wuv“, Wien, 2009, р. 22.
58
For further details see: L. Arbour, The Crucial Years, Symposium – The ICTY 10 Yers On:
The View from Inside, “Journal of International Justice“, “Oxford University Press“, Vol. 2,
No. 2, Oxford, London, June, 2004, р. 398.
96
adoption of certain material criminal procedure concepts by the Prosecution,
which, in this case, pertains primarily to conspiracy, i.e., “participation in a
joint criminal enterprise”. In that respect, the Prosecution focuses on the socalled functional responsibility,59 including in particular political leadership,
all security forces, and prospective state-sponsored paramilitary
organisations, whereby as it is pointed out by a Prosecutor in the proceedings
before the ICTY: “Frankly speaking, the crimes falling within the
jurisdiction of the ICTY simply cannot be committed unless there is an
active conspiracy.”60 This absolute assumption of the precondition of active
conspiracy for the execution of the crimes prosecuted in the criminal
proceedings before the ICTY (which, in fact, is tantamount to an irrefutable
presumption) appears to be a contradiction in itself, as it, in fact, directly
establishes the presumption of guilt for the crimes committed in relation to
all persons who may be held liable under the command responsibility. In
fact, if there is no crime without a conspiracy, and it is evident that the
crimes were committed, then surely there must be a conspiracy, and with
regard to the phrase “participation in a joint criminal enterprise,” as a form
of conspiracy, which is insisted on by the Prosecution, and which is accepted
even in some judgments by the ICTY Chambers, there is virtually no
possibility of such a conspiracy existing without the involvement of persons
in the relevant hierarchical positions, which in turn directly implies not only
the presumption of their guilt, but also almost certain establishment of their
59
This term is apparently alternative term for command responsibility, i.e., the form of
command responsibility, which is the most similar to objective responsibility, and which is
reduced to negligent failure by the person in the appropriate hierarchical position (formal or
factual) to enforce actions which could prevent a criminal act from being committed. As it is
emphasised in the literature – command responsibility is not only regulated in Article 7 (3) of
the ICTY Statute, but it has also been defined by the Tribunal as international customary law
(Prosecutor v. T. Blaskic, IT-95-14; Prosecutor v. Zejnil Delalic et al., IT-96-21), whereby
the superiors can be held criminally responsible for crimes committed by their subordinates,
provided that three basic assumptions are met: 1) there must be a superior-subordinate
relationship, 2) the superior must fail to take adequate and appropriate actions, and 3) the
superior must have a certain mental state (mens rea) in relation to the subordinate’s act. For
further details see: K. Weltz, Die Unterlassungshaftung im Völkerstrafrecht – Eine
rechtsvergleichende Untersuchung des französischen, US-amerikanischen und deutsches
Rechts, “Max-Planck-Institut für ausländisches und internationales Strafrecht“, Freiburg im
Br. 2004, р. 254–255.
60
C. del Ponte, Prosecuting the Individuals Bearing the Highest Level of Responsibility,
Symposium – The ICTY 10 Years On: The View from Inside, “Journal of International
Justice“, “Oxford University Press“, Vol. 2, No. 2, Oxford, London, June, 2004, р. 517.
97
command responsibility, and subsequently, of course, the conviction on such
grounds. That closes the logic circuit, so that the command responsibility,
although formally legally constructed as a type of subjective responsibility,
in practice, in many cases, is necessarily tantamount to objective
responsibility.
8. Detention And Arrest Of The Accused To Stand Trial Before ICTY
The measures that are available to the ICTY to ensure the appearance
of the accused are the same measures that are used to ensure the appearance
of witnesses, including summonses and transfer orders, and the only measure
that is specific to the accused is the most sever one, and that is detention.
Detention is a form of preventive apprehension, which amounts to a specific
form of deprivation of liberty, and in addition to this form of apprehension,
the rules of the proceedings before the ICTY provide also for the arrest of
the accused. The formal precondition for the arrest of any person is the
decision by a Judge of a Trial Chamber. At the request of either party or
proprio motu, a Judge or a Trial Chamber may issue such orders,
summonses, and warrants as may be necessary for the purposes of an
investigation or for the preparation or conduct of the trial (Rule 54).
In all modern criminal proceedings detention presents an exceptional
measure, which is typically the procedural means of last resort to ensure the
accused appears for the trial, as well as to achieve other goals, such as, for
example, eliminating risk of collision or preventing the accused from
repeating the offence, etc. Detention, as a measure that implies the
apprehension of the accused, is imposed only when it is necessary, and on
specific justified legal grounds.61 In addition, in all the modern criminal
procedures that tend to be of liberal nature, detention must be ex officio
substituted with a less severe measure whenever the necessary procedural
and factual conditions for that are met (mandatory substitution procedure),
and its duration must be limited to the shortest possible time. As our current
criminal procedure, many other democratic procedures also stipulate the
obligation of the official actors in criminal producing to act ex officio in
emergency if the accused is detained (the emergency action principle). This
effectively ensures that detention lasts as short as possible. These rules are to
61
Cf: G. Fezer, Strafprozeßrecht, 2. Auflage, “Verlag C. H. Beck“, München, 1995, р. 54–55.
98
the greatest extent of international legal character, as the right to freedom is
one of the fundamental human rights, which is consequently protected by an
array of international legal norms.
Contrary to the previously discussed international legal standards, in
the proceedings before the ICTY, detention is routinely imposed,62 almost
the only measure to ensure the appearance of the accused, and its duration is
not limited, and in some cases extends to a very long term, without the
possibility for that measure to be substituted by another less severe measure.
A case that is characteristic in this respect certainly is that of former senior
official of the Republic of Srpska, Momcilo Krajisnik, who was arrested in
April 2000, and whose trial was scheduled, after several delays, only for 3
February 2004, which means that he spent nearly four years in detention
before the trial, and it is expected, of course, that he will remain in detention
throughout the trial, which will, given the usual duration of the proceedings
(which in this case is rather complex), certainly mean a multi-year period.
An incredible and certainly paradigmatic case in terms of the breach
of the right to a speedy trial is that of Vojislav Seselj, who had gone
voluntarily to The Hague as much as ten years ago, for the “actual” trial to
begin as much as four years after the order of detention and has not yet been
completed, with the end of the trial still not even in sight.63
In accordance with Rule 64, upon being transferred to the seat of the
ICTY, the accused shall be detained in facilities provided by the “host
country” (The Hague, the Netherlands), or by another country. This implies
that detention upon transfer of the accused to the seat of the ICTY is
mandatory. In accordance with Rule 65 (А), once detained, the accused may
not be released except upon an order of a Chamber. The above norms imply
that ordering detention is a rule, and that it is mandatory, and that only
62
Another interesting observation is that by Wolfgang Schomburg, a former German Judge at
the ICTY: “The impression that is imposed is that the arrest warrant is issued only when the
investigation has actually just started, and therefore not, as is usual in Germany, only when
there is reasonable doubt.” Source: “Spiegel“, No. 3, from 17 January 2005, Hamburg, 2005,
р. 97.
63
In the Seselj case is rather evident that the ICTY sometimes acts in accordance with the
Wild West shooting rule (first shoot, and ask questions later) – by ordering detention first,
and building the prosecution case later …
99
subsequently, after the accused has already spent some time in detention, an
order of his or her release may be issued. In other words, there is no
possibility for an accused before the ICTY not to spend any time in
detention. Therefore, detention must be ordered in any case, and prospective
release of the accused in the pre-trial phase is considered only subsequently.
These rules contravene certain international law norms, which obligated
most members of the international community. The International Covenant
of Civil and Political Rights,64 proclaimed the right to liberty (Everyone has
the right to liberty and security of person... (Article 9, Para. 1), and in
accordance with the provisions of its Article 9, Para. 3: “It shall not be the
general rule that persons awaiting trial shall be detained in custody...). In the
proceedings before the ICTY, detention is essentially mandatory, even when
the accused voluntarily complied with the ICTY summons and came to its
seat. That fact is only a circumstance that may be considered during the
subsequent consideration whether he or she should be released, but initially a
detention order must be issued, which is a serious legal anomaly, and is
completely uncharacteristic of all modern national criminal procedure
systems, and in contravention of international law.
9. Lack Of Compensation To Persons Wrongfully Deprived Of Liberty
And Wrongfully Prosecuted Before ICTY
The Statute of the ICTY and the Rules of Procedure and Evidence do
not contain any standard that would regulate the important issue of
compensation of damages to persons unjustifiably, i.e., wrongfully, arrested,
or put on trial that ended in acquittal. This is serious anomaly of the rules of
procedure applied by the ICTY, violating the international law obligations
that have by now become universal. In addition, this is a solution that is,
even at first glance, extremely unfair and highly inappropriate, i.e., that lack
of a solution for an important issue, which undoubtedly relates to the
protection of the fundamental human rights and freedoms, i.e., compensation
of damages to persons whose right to liberty, by mistake of a certain
authority, was suspended for a certain a period of time.
64
Adopted and opened for signing in accordance with the UN Security Council Resolution
2200A (XXI) from 16 December 1966, and effective form 23 March 1976. Yugoslavia is a
signatory (“Službeni list SFRJ” – Međunarodni ugovori, No. 7/1971.).
100
Today it is impossible to find a modern criminal procedure legislation
that does not provide for the obligation of the national authorities to
compensate persons wrongfully deprived of liberty, as well as persons who
acted as defendants in trials initiated against them, but were not proven
guilty, and the proceedings did not end in convictions, so that it is
inconceivable that such a possibility does not exist in the Statute of the ICTY
or other source of law that applies before the ICTY. This normative solution
is not only consistent with the most elementary requirements of fairness, it is
also formally based on a number of binding international law sources, i.e.,
the internationally recognized right to compensation of such persons, which
is also the obligation of authorities whose actions contributed to the
wrongful deprivation of liberty, i.e., detention of the accused, whose guilt in
the later stage of the proceeding has not been proven. Consequently, the only
possibility that remains to individuals who find themselves in such situation
is to engage in very costly civil lawsuit against the Organisation of United
Nations, with very uncertain prospects. The lack of possibility for
compensation to an accused who is wrongfully or unlawfully deprived of his
or her liberty, or illegally detained, is in violation of Article 9 of the
International Covenant on Civil and Political Rights, according to which
“Anyone who has been the victim of unlawful arrest or detention shall have
an enforceable right to compensation.”
10. Imposed Counsel And Elements Of The Choice Of “Cooperative”
Counsel In Proceedings Before ICTY
In general, the legal counsel is a knowledgeable person who is
authorised to perform, together with the accused, the defence function in
criminal proceedings.65 Naturally, this is a specific individual, although the
defence can be taken over by an appropriate law firm, as a legal entity, but
even then specific counsel members can only be individuals. The separate
Directive on the Assignment of Defence Counsel regulates an array of issues
that relate to counsel before the ICTY. The accused has the right to counsel,
and primarily the right to defend himself or herself in person (Article 21,
Para. 4 (d) of the Statute and Article 3 of the Directive). That at the same
time means that the ICTY does not recognise the institution of mandatory
counselling, and that the right of the accused to defend himself or herself in
65
Z. Jekić, Krivično procesno pravo, “Savremena administracija”, Belgrade 2001, р. 167.
101
person, i.e., without the chosen counsel, constitutes his or her special and
inviolable right that must be exercised “without any prejudice,” and which
applies to both the suspect during the investigation, and the accused against
whom the indictment is legally effective.
The right of the accused to defend himself or herself in person is
stipulated in the Statute of the ICTY based on some examples from the
Anglo-Saxon criminal procedure systems, i.e., it is founded on the rules of
original adversarial criminal procedure legislation, where the parties are not
only left to present the original evidence, but also have full autonomy in
relation to other important procedural issues, which is, in respect to the
accused, reflected also in his or her absolute right to choose the way of
defence, not only in terms of content, but also in terms of whether he or she
will defend himself or herself in person, or choose to hire counsel. In such
systems, if the accused chooses a professional defence counsel, he or she
does not necessarily have to bear the cost of counsel alone, and they can be
borne also by the court, i.e., the state budget, for persons who cannot afford
it. While similar rules exist also in the proceedings before the ICTY, recently
there have been some deviations from the rules in practice. The most striking
case of such deviations is certainly the trial of the former president of Serbia
and FR Yugoslavia Milosevic, although there was a similar, even if not that
drastic, deviation in the case of Vojislav Seselj, president of the Serbian
Radical Party.
In the Milosevic case, the right of the accused to self-representation
was respected from the beginning of the trial, so that the accused throughout
the proceedings, during the presentation of the prosecution case, acted alone,
without counsel, and cross-examined witnesses called by the Prosecutor.
After that, after a break, it was the turn for the accused, who in the meantime
had not hired counsel, in accordance with the adversarial construction of the
proceedings before the ICTY, to present evidence. Immediately after the
beginning of his part of the procedure, i.e., immediately after the opening
statement by the accused, the Trial Chamber adopted a decision appointing
two previous amicus curiae,66 i.e., friends of the court, as counsel assigned
66
The assigned counsels were Stephen Kay and Gillian Higgins, the former “friends of the
court,” who were practically the only ones (together with the third friend of the court –
Belgrade lawyer Tapuskovic) who could have become counsels, who could not be criticised
that they were not present during the previous part of the trial. However, in the previous part
102
to the accused, as he was no longer considered able to defend himself due to
his chronic health problems, i.e., heart problems and high blood pressure.
That is how, in the formal sense, the procedural roles were transformed and
the former “friends of the court” defence counsel of the accused. The Trial
Chamber found that the right of the accused to self-representation was not
absolute and that he could be appointed counsel if it was in the interests of
the criminal proceedings, and at the same time, they found applicable the
report by the medical board, according to which the accused was not able to
represent himself due to health reasons, and the accused was even denied the
right to challenge that report (in that respect, the opinion of Judge Robinson
can be singled out), although the medical board comprised also a Belgian
physician, and the NATO Headquarters is located in Belgium, in Brussels.67
After that, the accused refused to participate actively in the further course of
the trial, and particularly did not want to further examine witnesses only
after his assigned counsel has finished the examination. The accused took
the so-called hostile approach towards the assigned defence counsel, i.e., he
did not considered it in any respect a part of his defence, but on the contrary,
asserted that such counsel acted solely in the interests of the Prosecution.
Naturally, the assigned counsels could have been considered a part of the
prosecution team and they had tried to participate as best as they could in the
presentation of the defence case, i.e., presentation of evidence in favour of
the defence, but, even at first glance, that was very difficult, not only
because the accused ignored them, but much more because of their complete
lack of preparation, considering that they had not participated in calling
witnesses, preparing them to testify, preliminary evaluation of the actually
and expected testimonies, and generally in the previous stage of the
of the trial, they had a different procedural role and were not formally a part of the defence
counsel, and, what is particularly important, Gillian Higgins, before she was appointed “friend
of the court,” had even been a professional associate of the Prosecution for a period of time,
which was in obvious contravention to the principle of monofunctionality in criminal
procedure, directly compromising her impartiality and independence.
67
This issue is not insignificant, considering that although NATO was not directly a subject
of the trial against the former president of FR Yugoslavia and Serbia, its role in that trial was
of special importance due to the fact that a part of the indictment relates to the events that
occurred in Serbia during the NATO aggression in 1999 and the role of NATO after the
aggression, and in the previous period, during previous armed conflicts in the formed FRY,
and also due to the fact that the trial before the ICTY could be linked at an extent to FR
Yugoslavia’s action before the International Criminal Court against several NATO member
states.
103
preparation of his defence. Considering that most of the witnesses refused to
appear at the trial, in circumstances where the accused had been denied the
right to represent himself, the counsel faced almost insurmountable
difficulties, and at the same time, even some bar associations condemned
their accepting such a role. Finally, the assigned counsels appealed their own
appointment, arguing that the accused had the right to represent himself, i.e.,
in person, and requested that in any case they should be freed from their role
of assigned (imposed) counsel.
The appeal filed by the assigned defence counsel Stephen Kay against
his appointment to the position in which both himslef and the accused found
themselves was partially upheld by the Appeals Chamber of the ICTY,68
which made already very complicated procedural situation even more
complex, although any other decision by the Appeals Chamber, and above
all the confirmation of the contested decision by the Trial Chamber to assign
counsel to the accused, in its original form, would probably made even
regular conduct of the proceedings even more difficult.69
The basic assumptions of the decision by the Appels Chamber include
the following: 1) the Appeals Chamber confirms the imposition of the
counsel;70 2) the Appeals Chamber changes the procedure for the application
68
The Hague, 1 November 2004 CT/ P.I.S./906-e – http://www.un.org/icty/latest/index.htm
Although it would be only the Chamber itself could issue subpoenas to witnesses, who had
previously refused to appear in the situation where Milosevic had been imposed counsel, such
a solution would be neither efficient nor fair, as on the one hand, there is no doubt that the
credibility of such “forced” testimony would be seriously called into question from the
beginning, while on the other hand, in respect to a large number of witnesses, and especially
former and current politicians from powerful states and senior state officials, it would be
virtually impossible to implement such orders. That would in turn only further compromise
both that specific criminal proceedings, and the ICTY itself, as it would become evident that,
in this case, politics and the factual balance of powers prevail over the law, and that
practically there are two categories of witnesses - those who have to respond to the summons
by all means or who might be otherwise forced to testify, and those about whom the tribunal
is powerless.
70
In the spirit of the typical criminal procedure terminology, this would rather be “assignation
of counsel” and consequently “assigned counsel,” but the term “imposition of counsel,” and in
connection with that – “imposed counsel” proved to be more adequate in this case, both on the
basis of the English term “imposition,” and the fact that this became a conflicted issue during
the trial, and that assigned defence counsel was absolutely not accepted by the accused, as he
himself admitted very quickly, so that both the accused and the defence counsel promptly
agreed that that was the imposed legal counsel at play.
69
104
of the adopted decision; 3) Milosevic assumes the leading role in the
presentation of his case; 4) The assigned counsel remains in the trial to
ensure its continuation in the event Milosavic is unable to participate in the
trial due to health reasons.
Although the Appeals Chamber of the ICTY corrected the above
defect mistake of the Trial Chamber, there is a need to consider the key
anomalies in the decision on the appointment of counsel, given that the
Appeals Chamber actually upheld the decision, without considering the
substance of that mistake, although it factually annulled, i.e., visibly
modified its legal effect.71 The finding of the Trial Chamber that the right of
the accused to self-representation is not absolute is simply not true. In fact,
even the broadest interpretation of the provisions of Article 21, Para. 4, of
the Statute does not provide for the claim that the accused has no absolute
right to self-representation, but quite the contrary, this provision explicitly
guarantees him the right to defend himself, and it depends only on his free
will whether he will hire counsel, or represent himself. It is another issue
whether this solution is justified and whether the Statute should provide also
for mandatory counselling, either due to the severity of the crime (although
all the crimes that fall within the jurisdiction of the ICTY are undoubtedly
the most serious crimes, and cannot be selected based on their weight), or
when that is necessary due to certain personal characteristics of the accused,
or his physical or mental anomalies, illness, etc., but in that event it would be
necessary to determine precisely the procedural point from which, i.e., upon
which the accused must have counsel. However, even a revision of the
Statute, which would be the only legal way to introduce mandatory
counselling in the legal proceedings before the ICTY, should not be allowed,
for reasons of fairness and compliance with the principles of fair trial, to
apply to cases that have already been initiated, but it could have only pro
futuro legal status.
Linking the issue of assigning (imposing) counsel to the accused in
the proceedings before the ICTY with the criminal procedure legislations
71
In fact, it is evident that the Appeals Chamber did not wish to find strictly that the Trial
Chamber made a mistake when it assigned defence counsels to the accused, which in the
formal sense resulted in an appellate decision that only modified the decision of the Trial
Chamber, which means that in the formal sense it was both confirmed and reversed, but
naturally, in the factual sense, its content and procedural scope was significantly changed.
105
that recognise the instrument of mandatory counselling, 72 is completely
wrong. On the one hand, it is absolutely wrong, as contrary to such
legislations, as it is explained above, such provisions are not contained in the
Statute of the ICTY at all, which stipulates completely the opposite - the
right to self-representation formulated as an absolute and inviolable right of
the accused. On the other hand, this reasoning is completely wrong, as in the
criminal procedure systems which recognise the institute of mandatory
counselling, such a defence has to be ensured strictly from a specific
procedural moment and for the duration of the proceedings, upon the
occurrence of such procedural moment, which means that in this specific
case, it is completely absurd that the first half of the proceedings, which is a
sort of a party half (presentation of the prosecution case) is finally closed in
one procedural regime, which is characterized by self-representation, and
then the second part of the procedure (presentation of the defence case),
proceeds in a different procedural regime, based on compulsory participation
of counsel in criminal proceedings. This leads to an illicit procedural
imbalance, which directly affects the fair conduct of the trial, and even at
first glance gives the impression of biased treatment of the accused and his
defence. Such a procedural imbalance is not a characteristic of democratic
criminal procedures, which are based on the ultimate criminal procedure
principle of honest and fair conduct of proceedings (fair trial).
In respect to illness of the accused as the grounds for the appointment
of counsel, it is obviously inadmissible, both in the formal and in the factual
sense. In the formal sense it can be concluded that the accused’s illness did
not occur at the exact moment when the prosecution ended the presentation
of its case, or at any subsequent time, or at the time when the accused was
about to begin the presentation of his case, and that, contrary to that, it had
existed much earlier and, in fact, it had existed from the beginning of the
trial, or even earlier, before the trial, and thus the occurrence of illness
cannot be considered in any case as a special procedural moment, upon
which the accused must be by all means appointed counsel. In the factual
sense, it is not contestable that the imposition of counsel presents additional
72
Mandatory legal counsel is recognised in most continental European criminal procedural
legislations, and it was recognised also in the Criminal Procedure Code of the former
Yugoslavia, and that procedural institute is recognised in the criminal procedure legislations
of all new states formed in the territory of the former SFRY.
106
stress for the accused which can only aggravate his condition, and it is
almost impossible to consider real the constatation that accused’s health
condition would be maintained or improved by preventing him to conduct
his own defence, and leaving that issue to the assigned defence counsel. This
sort of “sparing” of the accused may, at first glance, only cause the opposite
effect from that which is declared as the reason for the decision on the
appointment, i.e., imposition of the defence counsel to the accused. Contrary
to that, it could be expected that the appointment of counsel against the will
of the accused, and in contravention of his right, which is by the way
absolutely guaranteed by the Statute of the ICTY, may by causing additional
stress only further aggravate the condition of his illness. In addition, the
issue of illness in this case can be considered only as the matter of the ability
of the accused to stand the trial in the first place, and consequently as the
matter of meeting the conditions for the continuation of the trial, and not as
the condition or grounds for the appointment, i.e., imposition of counsel, as
the ICTY simply does not recognise the institute of mandatory counselling,
but diametrically opposite to that institute, the defendant has the inviolable
and absolute right to self-representation, and cannot be in any respect legally
appointed counsel again his will.
11. Friends Of The Court In Proceedings Before ICTY
Friends of the court (amicus curiae) is an interesting institute of
criminal procedure rules that is applied by the ICTY, considering that, on the
one hand, it is rather difficult to find an example of this in the modern
comparative criminal procedure law, although these procedural entities are
particularly prevalent in some Anglo-Saxon criminal proceedings, while on
the other hand, the amicus curiae institute itself in the practice of the ICTY
has became quite controversial. In fact, in the original sense, as specified in
Article 74 of the Rules, hiring a friend of the court is one the one hand,
optional, while on the other hand, it is limited to specific cases. It is optional
as the Chamber may, if it considers it preferable for proper adjudication, i.e.,
in order to make appropriate ruling in the case, invite the specific entities or
grant them access, i.e., the appearance before the Chamber, and to file
submissions on any issue that is considered by the Chamber. These entities
include: 1) a State, 2) an organization, or 3) an individual.
It is not specified, even in the exemplary terms, what matters the
“friends of the court” can verbally to exhibit, or contribute to in their
107
submissions, with the exception of a very broad specification of the caserelated limitations for their appearance as: “any matter considered by the
Chamber.” By the logic of things, this would have to mean the issues related
to providing assistance to the Chamber in addressing some specific issues
related to the application of substantive or procedural law, especially
considering the potential issues related to a series of criminal law and
criminal procedure institutions, though it that case hiring experts (experts professionals) could come into consideration, as in the proceedings before
the ICTY, an expert may be hired also to analyse the specific legal issues.
Thus, for example, the case law of the Hague Tribunal recognises one case
(the Blaskic case), 73 in which two German criminal law theorists were hired,
who submitted a report to the Tribunal in which they analysed a series of
criminal procedure regulations of some countries (with a particular focus on
the differences between the Anglo-Saxon criminal procedure and the
continental European criminal procedures) with respect to certain issues
pertaining to the law of evidence, and particularly to the possibility of the
court to use procedural enforcement measures to coerce a witness to appear
before the court and testify give evidence.74
A specific case of hiring of the “friends of the court” occurred in the
trial of former Serbian and Yugoslav president Milosevic, when the
appointed amicus curiae were assigned specific tasks, which largely
pertained to the elements of the defence, while their hiring was not of ad-hoc
nature, and related to the entire course of the trial, which altogether diverges
greatly from the typical character of the amicus curiae institution, and from
the rules of procedure applicable before the ICTY. Notwithstanding that
Article 74 of the Rules specifies the amicus curiae function in a very broad
and general manner, by the logic of things, their procedural function can
include only that which does not specifically fall within the function of
another procedural entity. In this case, they perform the activities that clearly
fall within the function of the defence in criminal proceedings, which is in
that case originally performed by the accused, and may optionally be
performed by counsel, but only on condition that the accused expressly
73
Case No. IT-95-14–29. July 1997.
For further details see: A. Eser and K. Ambos, The Power of National Courts to Compel the
Production of Evidence and its Limits – An amicus curiae brief to the International Criminal
Tribunal for the Former Yugoslavia, “European Journal of Crime, Criminal Law and Criminal
Justice“, Vol. 6/1, “Kluwer Law International“, 1998, р. 3–20.
74
108
consents with the appearance of counsel in the proceedings. In fact, that is a
form of mandatory counselling, which is by the way not provided for in the
proceedings before the ICTY, which recognises a special right of the
accused to self-representation (Article 21, Para. 4 (d), of the Statute).
This is a case of mandatory counselling sui generis, which is, on the
one hand, only “disguised” by a differently labelled (in the declarative sense)
procedural function of the entities that implement it, and which is, on the
other hand, severely limited by a number of elements, so that essentially it
can not be even minimally effective. Its main limitation is reflected in the
rejection of that form of defence by the accused, and effective legal defence
is inconceivable without the cooperation and trust relationship between the
defendant and counsel. Another significant limitation arises from the
unauthorised interference or confusion of procedural functions, as the very
term “friends of the court” implies that such entities are in a special
relationship with the court by which they were selected and appointed, and
assigned their procedural tasks, and that they have no formal relationship
with the accused who does not accept them. Consequently, on the one hand,
there is no question of their independence and objectivity, and on the other
hand, that does not create the necessary procedural and factual conditions to
allow them to contribute effectively to the improved position of the accused
in the proceedings, which is, at least nominally, cited as the objective of their
appointment, i.e., the appearance of these specific entities in the criminal
proceedings. In addition, if the task assigned to these “friends of the court”
includes also the presentation of the extenuating, i.e., mitigating
circumstances in relation to the accused, that, in fact, already in the early
stages of the trial, i.e., during the presentation of evidence by the prosecutor,
unlawfully prejudices in a certain way the conviction and the sentence,
because the court takes into account such circumstances only in determining
sentence.
12. Witness Protection, Illegal Proofing Of Witnesses,
And False Testimony Before ICTY
The sources of law applicable to the proceedings before the ICTY
address with a great deal of attention the issue of witness protection, which
has often been used as an example of the creation of a “precedent”, which
109
was also used for further elaboration of similar rules in the procedure applied
by the permanent International Criminal Court,75 although this institution has
been greatly compromised in a number of examples in the ICTY case law,
especially with respect to the so-called secret testimonies, i.e., testimony of
an individual whose identity is withdrawn from the public, although the
parties to the proceeding are privy to the identity of witness. The issue of
witness protection in practice has been raised from the very beginning of the
ICTY’s operation. Thus, for example, the German literature cites the
example of the D. Tadic case, when a Serb witness who lived in the German
province of Baden Wurttemberg agreed to testify in the proceedings, but
only on condition that his identity remained hidden for fear of the media
reactions in particular, whereby a number of practical problems arose on the
relation between the German legal system and the rules of the Statute of the
ICTY.76
In the Tadic case, the institution of “protected witness” in the
proceedings before the ICTY was also particularly severely compromised,
which has already been dubbed in the professional literature “proofing of
witness.” In August 1996, a Serb Dragan Opacic appeared as “witness L” in
the hearing against Dusko Tadic before the ICTY, which was closed to the
public, and after having taken the oath, stated before the Tribunal’s Chamber
that Tadic in the Serb camp in Trnopolje in northern Bosnia, where allegedly
the witness had been a guard, had raped a number of women prisoners and
had killed a number of male prisoners. Later, in October of that same year,
that same witness admitted that he had been ”proofed” to give a false
testimony by the Bosnian Muslim authorities, and that the Muslim military
police had been proofing him for one whole month, using horrifying threats
and torture, to give such testimony against Tadic.77 The author whom we
75
Cf: T. Ingadottir, F. Ngendahayo and P. Viseur Seller, The Victims and Witnesses unit
(Article 43.6 of the Rome Statute), in: T. Ingadottir, “The International Criminal Court –
Recommendations on Policy and Practice – Financing, Victims, Judges, and Immunities“,
“Transnational Publishers“, Ardsley, New York, 2003, р. 1.
76
S. R. Lüder, Der Schutz von Zeugen im Recht des Jugoslawien-Strafgerichtshofes und im
nationalen Recht, in: H. Fischer und S. R. Lüder (Hrsg.), “Völkerrechtliche Verbrechen vor
dem Jugoslawien-Tribunal, nationaler Gerichten und dem Internationalen Strafgerichtshof“,
“Berlin Verlag Arno Spitz“, Berlin, 1999, pр. 139-140.
77
H. Spieker, “Zeugenpräparierung im Tadic-Prozeß vor dem Jugoslawien-Strafgerichtshof,
in: H. Fischer und S. R. Lüder (Hrsg.), р. 101.
110
have previously quoted on this world famous case goes on to carefully
analyse multiple consequences of this false testimony, arguing in favour of
calling the government of Bosnia and Herzegovina to account for this, as the
state has violated its international obligations by having its officers torture a
man to force him to falsely testify, and even prepare him for it.78
Unfortunately, that issue has never been raised in practice, and naturally the
state of Bosnia and Herzegovina in the international law sense, and its
officers in terms of individual criminal responsibility, who in order to
“prepare” the witness, subjected the man to severe torture, have never been
held accountable. Neither this witness who gave a false testimony was called
to account for it, although that possibility is provided for in the rules of the
Tribunal, even if in that case he could naturally refer to acting under duress,
which would be treated, from the aspect of criminal law, as perjury in
emergency. Naturally, it would not be morally justified that this witness,
after all the horrors he had suffered, should even be punished for having
been coerced by torture to give false testimony, but it is really not logical
that none of the Bosnia and Herzegovina officials involved in this case and
particularly those who had directly tortured the witness, and deliberately
instructed him to give false testimony, should not be held responsible, and
bear serious consequences for their unlawful conduct.
As a matter of fact, it was exactly in the Tadic case that the accused’s
defence counsels had considerable problems with gathering evidence
relevant to the defence, and then counsel in this case pointed out that, unlike
the Prosecutor, the counsel was not a body of the court, and that
consequently the obligations of states and some state governments to
cooperate with the international tribunal did not extend directly to the need
to cooperate with the accused’s defence counsel, which, in the opinion of
this author, referred also to the Rome Statute regime, so that even if states
were much more cooperative in relation to the bodies of a permanent
international criminal court, there would be no reason to believe that this
approach would extend also to the defence counsel.79 In fact, this is a much
deeper issue, as on the one hand the proceedings is designed as a typical
78
Ibid., pр. 102–115.
M. Vladimiroff, Position of the Defence: The Role of Defence Counsel before the ICTY and
the ICTR, in H. Bevers and C. Joubert (Ed.), “An Independent Defence before the
International Criminal Court“, “Thela – Thesis“, Amsterdam, 2000, р. 39.
79
111
adversarial proceeding, and the parties are treated equal in principle, while,
on the other hand, the prosecution in a privileged position in many elements,
and this is especially true of its relationship with the states, as it has greater
possibilities in this respect than the defence, which is in practice reflected in
the fact that the Prosecutor routinely notifies the Security Council in case
any state is uncooperative with the Prosecutor, in order for that authority, by
threatening to implement corresponding sanctions or by implementation
sanctions and other forms of pressure, to force the state to cooperation. At
the same time, the Prosecutor is generally only one party to the proceedings,
just as the accused is a party to the proceedings, and it is difficult to conceive
that the Security Council could sanction any state for refusing to cooperate
with the accused, i.e., defence in the criminal proceedings before the ICTY
in general, in terms of, for example, gathering some evidence, making
available relevant documents, assisting in contacting witnesses, etc.
A witness is not necessarily warned before giving testimony of his
duty to tell the truth, although he or she is clearly warned of it by having to
make a solemn oath committing himself or herself to truthful testimony. The
Chamber, proprio motu or at the request of a party, may warn a witness of
the duty to tell the truth and the consequences that may result from a failure
to do so (Rule 91 А). If a Chamber has strong grounds for believing that a
witness has knowingly and wilfully given false testimony, it may direct the
Prosecutor to investigate the matter with a view to the preparation and
submission of an indictment for false testimony (Rule 91 B). A disadvantage
of this solution is its optional character, which is not an adequate solution.
The obligation should have been stipulated that the Trial Chamber or its
President should by all means inform the Prosecutor of any doubt that the
witness has falsely testified, and to furnish to the Prosecutor all available
evidence thereof, with a concurrent obligation of the Prosecutor to consider
the case, and, if it is assured that such doubt exists, issue an indictment for
false testimony. In the case of false testimony by D. Opacic, in the trial of D.
Tadic, the Trial Chamber ordered the Prosecutor to investigate the case and
take action against the witness, if it deems that he gave false testimony, but
indictment was raised.80
80
Cf: J. R. W. D. Jones & S. Powles, op.cit., р. 340.
112
The Prosecutor did not explained why this witness was not prosecuted
for giving false testimony, 81 although considering all the circumstances in
the case, the real culprit is not the witness, but those who used grave
violence to force him to do so, and that the representatives of the Muslim
authorities, who, unfortunately, have never been called to account for it.
When a party claims that a witness gave false testimony, the burden of proof
lies on the party that made such claim.82 Naturally, this rule applies only if
the Trial Chamber has not already found itself, based on a claim by a party,
or its own reasoning, that there was a high probability that a certain witness
gave false testimony.
13. Expert Witnesses And “Judicial Historical Revisionism”
In The Hague
The practice of the ICTY included, on several occasions, hearings of a
specific category of witnesses – the so-called expert witnesses. Essentially,
these are persons whose procedural status corresponds to that of court
experts in the continental European criminal procedure. However, unlike the
expertise in the typical criminal proceedings, which is necessarily limited to
consideration of certain factual technical issues without going into any
analysis of legal issues (which in accordance with the iura novit curia rule is
exclusively under the competence of the court), in proceedings before the
ICTY, expert witness were often called exactly to clarify certain legal issues,
particularly when certain probative issues related to the norms of the
Yugoslav legal system, especially its criminal law, with which of course the
judges and prosecutors in the ICTY were not thoroughly familiar. In
addition, another interesting and atypical situation in comparison to the
81
Here, the Prosecutor acted in accordance with a sort of factual opportunism in criminal
prosecutions, which is naturally not provided for in the rules of procedure, but considering
that the witness who gave false testimony was himself a victim of torture and extortion of
testimony, from the criminal and political aspect, such a solution is justified, but at the same
time, unfortunately, there are no other procedural and legal mechanisms for those responsible
for such instruicion of witness to give false testimony (his “proofing”) to be held accountable.
In addition, from the aspect of criminal law, this would probably constitute false testimony in
emergency, i.e., under threat of force or violence, but even such issues should have been
addressed as a part of the relevant proceedings, and not simply on grounds of prosecutorial
discretion.
82
J. R. W. D. Jones & S. Powles, op.cit., р. 341.
113
conventional criminal proceedings was reflected in calling witnesses experts to testify and clarify the historical and political background in a
particular case, linking that particular case or prosecution of a crime with a
series of historical and political circumstances.
The first such case can be found in the very first trial before the ICTY
against the accused Dusan Tadic, a Serb from Kozarac, who was arrested in
Germany, where he was staying as a refugee, and who was charged with a
series of crimes against Muslim civilians in Kozarac, and in certain labour
camps. In this case, which, in itself, does not seem overly important (except
for it being the first trial before the ICTY), a certain James Gow from the
British Department of War Studies, presented in the Tribunal as an expert for
Yugoslavia, also appeared as the expert - witness, and explained in his
testimony the historical background of the conflict in Bosnia and
Herzegovina, and the reasons that lead to the break-up of SFRY (as which
point even the film BBC – “Death of Yugoslavia” was shown), arguing in
particular that the conflict in Bosnia and Herzegovina was not a civil war,
but an international conflict, and giving before the Tribunal, “a four-day
history lesson.”83
This type of testimony or in fact “expertise” is, in a way, a special
form of abuse for a number of reasons. On the one hand, it is cynical to have
such a lengthy and energetic presentation of evidence relating to the complex
political and historical background of certain events in a case that is
presented as a classic criminal (criminal law) case. On the other hand, it is
frivolous in such a manner, in a statement of one or several (not much of a
difference) “experts”, to draw far-reaching historical conclusions about the
facts that are otherwise, under normal circumstances, studied by whole
generations of historians, and on which, based on serious scientific research,
volumes are written and scientific meetings held, arguments and counterarguments are exchanged, etc. In addition, the selection of these “experts” is
not based on any objective criteria, but it is rather a matter of prosecutorial
discretion (when it calls them to stand witness), and of course, this is always
highly subjective and focused on creating appropriate grounds for the
indictment, which is, even in this case, all in violation of the principle of
83
M. P. Scharf, Balkan Justice – The Story Behind the First International War Crimes Trial
Since Nuremberg, “Carolina Academic Press“, Durham, North Carolina, 1997, р. 120–122.
114
minimising bias in dealing with historical issues. Finally, the problem of
such “historical expertise” in the proceedings that plead to be “judicial” lies
exactly in the fact that this in one roundabout and shortcut way, turns the a
priori the so-called judicial truth into historical truth and the irrefutable fact.
In fact, when the allegations of such “experts” become a part of the
final judgment, then in accordance with the res iudicata pro veritate
accipitur rule they are believe to be true, which is in complete contrast to the
simple logic of life, but what is even much more important in this case, to
the logic of scientific research, according to which historical issues and their
related political and historical issues cannot be addressed in such manner,
which in our opinion presents, in fact, abuse by an institution that otherwise
vigorously strives to be of “judicial” character. However, the appropriate,
i.e., true judiciary must be characterized by consistent respect for their own
independence and impartiality, without resorting to resolving things that
even in the broadest possible sense do not fall within the scope of judicial
settlement, and should not deal with historical issues in that manner, as
otherwise it becomes a servant of the “politics”, and it actually loses the
character of judiciary. From the procedural aspect, here lies another crime
and misuse which stems from the fact that, given the accepted Anglo-Saxon
concept of criminal law and procedure, any final judgment becomes
plausible and applicable, and even mandatory formal source of law to be
applied in other cases in which such an issue is raised, providing
considerable room for serious abuse, in respect to testimony of expert
witnesses in the sphere of politics and history, as in that case individual
claims already made in the case that has been legally closed can no longer be
called into question in other pending proceedings, and that “truth” irrefutably
applies to such new cases as well.
History, however, cannot be created by any authority, including
judicial authorities and the ICTY. Although all international trials, as well as
many national trials, and also those that take place before the ICTY, are a
part of history, those trials cannot by themselves create, i.e., formulate
historical conclusions, which will then, also by itself, and on the basis of res
iudicata pro veritate accipitur rule, be regarded as the absolute truth.
Therefore, efforts directed in the opposite direction are not only a procedural
abuse, and to a great extent political use of an authority for which it is
pleaded that is should be seen by the international community as an impartial
and independent court, but also the abuse of some historical facts, and
115
(mis)use of various experts and “experts.” However, despite this, in the
strictest doctrine terms, while the proceedings before the ICTY, and its
rulings are undoubtedly a part of the war and post-war history of the former
SFRY space, as well as the wider European and global space, history is still
not written before that Tribunal, and, inevitably, after a certain lapse of time
and the creation of the necessary historical and scientific hindsight, certain
historical conclusions can be made only in accordance with the classical
scientifically established method for their formulation.
14. Illogical Relations Between Trial And Appellate Chambers In ICTY
– Example Of “Appeal Level” Liberation Of Croatian Generals
In the classical national judicial system, the right of the Appeals
Chamber to revise or reverse the first-instance ruling is based on the
principle of devolution, and the Appellate Court is not only a “variant” of the
same court that ruled in the first instance. In a “normal judiciary system”, the
Appellate Court judges are, in principle, of higher rank than the trial judges,
and one of the requirements for their appointment is more years of
experience in the judiciary. The Appellate Court is considered, by operation
of law, as “smarter,” and therefore it does have the “final word.”
In the ICTY, the same judges are, from case to case, both the “firstinstance” and the appellate judges. The Appeals Chamber of the ICTY is
certainly not “smarter” than the Trial Chamber. This calls into question the
legitimacy of its rulings, especially considering that before that Chamber
evidence is not presented directly, but rather as a “paper trial,”, i.e., it is
ruled on the basis of written documents.
The first-instance judgment of conviction in the case of Gotovina and
Markac was passed unanimously by three judges. In the appeals procedure,
the ruling was 3 to 2 in favour of the accused. Thus, five ICTY judges
considered the generals’ proven guilty, and only three judges found in
favour of their release, which in itself, makes all that is clear become even
clearer.
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15. “Crime And Punishment” In Nuremberg And In The Hague
– A Comparison
The judgments and therein implied sanctions for international crimes
are of special nature, as they generally seek to have a wider social impact,
which is often reduced to “disseminating a sort of lessons from history.”
This is especially characteristic of the Nuremberg trials,84 when the
proceedings were conducted against a large number of the accused who had
been in important positions in the Nazi Germany political, military and
economic elite, but even then, a number of the most important Third Reich
officials (and above all, Adolf Hitler, J. Goebels, H. Himler, etc.), were not
on the dock, and the dead shall be judged only by history. On the one hand,
the Nuremberg judgments sought to convey a message to the defeated
Germany and the Germans that many of their compatriots had committed
serious crimes, which were, in fact, of individual character, although a
specific mark of moral responsibility inevitably remained also on the state,
and on the German people, while, on the other hand, they sought to create a
new international criminal law, which should serve also in the future as a
barrier to new wars of aggression and crimes that arise from them. This trial
represents a rare historical example of a case in which an exceptionally high
degree of legitimacy of the criminal proceedings and the resulting judgments
completely obliterated even some aspects of the principle of legality in the
criminal law, considering that some of the crimes for which individuals were
convicted at Nuremberg were not even prescribed as crimes of individuals at
the time of their execution.85
Unfortunately, notwithstanding that, the past century abounded with
wars, war crimes, and other crimes, and the events that occurred during the
1990s civil war in the territory of the former SFRY also have a prominent
place in the war history of mankind. In addition to national jurisdictions, the
issue of those crimes and the responsibility for those crimes has bean dealt
with for more than a decade by the ICTY. In respect to the sanctions implied
84
For further details see: M.Škulić, Neke poruke suđenja u Nirnbergu, published in the
proceedings: “Od Nirnberga do Haga – pouke istorije”, Beogradski forum za svet
ravnopravnih, Belgrade, 2012, р. 131 – 159.
85
For further details see: M.Škulić, Načelo zakonitosti u krivičnom pravu, Anali Pravnog
fakulteta Univerziteta u Beogradu, broj 1/2010, Belgrade, 2010, pp. 66 – 128.
117
by the judgments of that Tribunal, one can discern some very interesting
historical parallels, or rather, an interesting lack of possible similarities.
Unlike the Nuremberg trials, where the important individuals were (a
sort of “VIP Circle”) were on trial, the ICTY's first defendant was a certain
Dusko Tadic, a Serb from Bosnia and Herzegovina, who was charged with
the murder and torture of prisoners. Regardless of the specific gravity of the
respective crimes for which he was convicted, he was only the direct
perpetrator and essentially a marginal figure in relation to wartime events.
However, the penalty imposed on him (twenty-five year imprisonment
in the first-instance trial, and twenty-year imprisonment in the appeals
judgment), is comparable to some of the sentences imposed on some of the
accused at Nuremberg, i.e., it is much more strict than some Nuremberg
penalties. For example, Albert Speer, Minister of Armaments and Munitions,
was sentenced to 20 years in prison, and Karl Dönitz, Naval Commander and
the successor to Hitler after his suicide, at only 10 years in prison, while
Konstantin Neurath, Protector of Bohemia and Moravia, was sentenced to 15
years in prison.
A diametrically opposite example in relation to the Tadic judgment,
but also to the judgements imposed on many other Serbs in The Hague, is
the case of Naser Oric, who was punished with an incredibly lenient
sentence of only two years in prison. The Tribunal in this case was
apparently guided by both the indictment, which did not include all of the
crimes that should have been imputed to the defendant but only a relatively
small number of crimes, and the general stereotype of the Srebrenica
Muslims as the exclusive victims, despite the fact that had been previous
systematic annihilation of the surrounding Serb populations.
The judgements imposed on the former Serbian senior government
officials, and part of the former senior military and police officials have
rightly attracted great attention of the Serbian public. Although the ICTY
rules on the basis of individual criminal responsibility, which can never be
objective, and especially not the collective, whenever former senior state
officials are tried for serious international crimes, certain repercussions may
affect even the state, and the people. A good example of this is Germany, as
even the third generation of the post-war Germans had face a number of
118
consequences for the crimes that were committed by the Nazi regime,
ranging from material, to those of moral character.
Public attention has focused primarily on the acquittal of former
Serbian president and the sentences imposed on other defendants. The ICTY
prosecution has not been able to prove guilt of any president of the Serbian
state, as Slobodan Milosevic’s “death was faster than his judgment,” and
Milan Milutinovic, as it has always been known, was never a “key player,”
which spared him of criminal responsibility. This opinion is not shared by
the ICTY Prosecution, which proved even in this case that it “first indicts,
and gathers evidence later.” As a matter of fact, this objection is not the fruit
of the action of any “anti-Hague lobby” or “impassioned Serb nationalists,”
but rather a statement made by the German Judge Wolfgang before the
ICTY a long time ago, who also openly criticized the Prosecution to be
overly involved in politics, and that detention was often ordered without
justification and for too long duration.86
The imposed sanctions are in line with the current penal policy of the
Tribunal, but only in the case of the Serbs. Firstly, one should not forget the
absurdly lenient sentence imposed on Naser Oric, which was followed by his
final release, or the scandalous trial of Ramush Haradinaj, who was not only
acquitted, but also provisionally released to freedom during the trial and
allowed to go into politics, because “that contributing to the peace in
Kosovo” (and during the trial, some prosecution witnesses were permanently
“pacified”), and even now, there is mention of the possibility of him
becoming an official “peacemaker” in Uganda.87 The imposed sanctions are
86
Judge Wolfgang Schomburg made such a statement in the interview to the German weekly
Spiegel (No. 3, from 17 January 2005, Hamburg, 2005, p. 97), in which he was asked inter
alia the following question: “In Belgrade the cooperation with the ICTY is rejected by many
politicians and most citizens. Is this the emergence this defensive front provoked by the Chief
Prosecutor Carla Del Ponte?” In response to this question, Judge Schomburg stated: “A state
prosecutor should focus on the proceedings and the cooperation with the state in question,
therefore, not get involved in the daily political events. It does not help much to complain
about the lack of cooperation before the elections, though it is clear that the responsible
parties in the region are in a very difficult position. It would seem better to use encouragement
rather threats and intimidation.”
87
In the trial against Haradinaj, there were scandalous cases of (still surviving) witnesses
refusing to testify, when it was obvious that they were either intimidated or instructed.
119
too high and for some of the accused (though we should first see for the
rulings of the Appeals Chamber) they will actually mean life imprisonment.
The construction of collective or joint criminal enterprise,88 by
definition, imputes also state responsibility to an extent, notwithstanding that
it pertains to individual criminal responsibility. If the senior civil, police and
military officials were involved in such an “enterprise,” does it not mean that
the state itself can bear some responsibility? Of course it does not, because
this criminal law structure is also rather “vague” and too “flexible” criminal
law category, which is not always very clear and precise, and it sometimes
comes down to a sort of “rubber institute.”
The Serbian public may be particularly sensitive to the convictions of
the people who defended the country during the NATO aggression. Here, a
particular problem is the concept of command responsibility, which in one
form imputes commanders’ responsibility even when they failed to
“reasonably anticipate” certain crimes committed by their subordinates,
regardless that they not only did not order the commission of those crimes,
or did not participate in any specific way in those crimes, they were also not
aware of them.89 In that part, this reminds of objective responsibility, which
is, as a matter of fact, uncharacteristic for criminal law.90 In fact, there has
never been a war without crimes, because in spite of all the efforts of the
officers and military organisation there will always be criminals who will
take advantage of these circumstances and do what they would otherwise
have done, even in peacetime. This was the case in every war so far, and
Vietnam, Iraq, Afghanistan, etc., were no exceptions. That is why inter alia
the honourable Indian Judge Pal in the Tokyo trials, held after the World
War II, stated, disagreeing with the judgment pronounced to the Japanese
defendants, that in fact, “the greatest crime is the war itself.”
88
In the recent practice of the ICTY, joint criminal enterprise has been almost reduced to its
funny, but quite realistic derivation from its abbreviation in English - JCE (joint criminal
enterprise) or “Just convict everybody.”
89
For further details see: M.Škulić, “Komandna odgovornost – istorijat, Rimski statut i
jugoslovensko krivično pravo”, Arhiv za pravne i društvene nauke, No. 4/02, Belgrade, 2002,
pp. 489 – 532.
90
For further details see: Ј.Ćirić, Objektivna odgovornost u krivičnom pravu, Institut za
uporedno pravo, Belgrade, 2008, pp. 7 – 8.
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ESTABLISHMENT OF ICTY…
Prof. Vladimir Čolović, PhD
Institute for Comparative Law, Belgrade
ESTABLISHMENT OF ICTY – AN EXAMPLE OF
DISRESPECT FOR LAW AND ACTUAL FACTS
Abstract
The establishment of the ICTY is a consequence of the armed conflict
in the territories of the former SFRY. The specificities that characterise this
Tribunal require an analysis of its establishment, bearing in mind the
political relations at the time of its establishment, and the specificities of its
bodies and the regulations that were adopted as a part of this Tribunal. This
paper discusses the circumstances that preceded the creation of the ICTY,
and the role of the UN Secretary-General, and the Commission for
Investigation of Violations of International Law in Former SFRY, whose
Report on the conflict in the former SFRY served as a basis for the
establishment of the Tribunal. In addition, the author draws attention to
some issues related to the work of the ICTY’s bodies, the content of its
Statute and some of its regulations, and the key issue, which is the
qualification of the conflict in the former Yugoslavia, giving some initial
elements for an assessment of the validity of the establishment of this
Tribunal.
Descriptors: the ICTY, UN Secretary-General, Commission, Report,
jurisdiction, SFRY, conflict.
*
**
Even after twenty years from the establishment of the International
Criminal Tribunal for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia (hereinafter: the
ICTY), the legitimacy, fairness, and impartiality of this institution continue
to be questioned. The aftermaths of the war in the territory of the former
Yugoslavia have been vast, they will be felt for a long time in this region and
121
will reflect on the life of all the nations in the newly created states in this
territory in general. However, the consequences that have been and will be
produced by the decisions that have been and will be adopted by the ICTY
are no lesser and they will have a great impact on the position of the states former SRFY republics, in relation to both the other former republics, and
the international organisations and other countries in the world. It is certain
that Serbia has suffered and will continue to suffer the worst consequences
of the ICTY’s decisions, considering that the greatest number or those
indicted and convicted by this institution are Serbian nationals and nationals
of the Republic of Srpska. Without dwelling on the numbers related to these
judgments, we can ask what the legal basis that led to the establishment of
the ICTY was, and weather the conflict that occurred in the territory of the
former SFRY, and the role of the Yugoslav People’s Army (JNA) in that
war, were properly qualified. While these questions have already been
discussed extensively, this paper will attempt to answer them exactly
through a review of the legal rules, regulations and professional opinions
that led to the establishment of the ICTY.
In the introductory part, we will also argue that the main cause of the
ICTY’s establishment and subsequent operation “lies” in the criteria that
were used and the evaluations that were made by international organisations,
as well as the greatest part of the international community, which were not
equal. In fact, international organisations and the international community
tried to “pinpoint” the culprit for armed conflict, and, therefore, misqualified
the armed conflict in Yugoslavia.
As a matter of fact, the ICTY has attracted great attention of everyone,
not just judicial professionals. The Statute and the Rules, which were
adopted to regulate the operations of that tribunal, and which are interesting
also from the point of application of law and from the standpoint of history,
considering that this tribunal can, in a way, be compared to the International
Military Tribunal at Nuremberg and Tokyo. In accordance with the 1945
London Agreement, the Allies established an ad-hoc tribunal to prosecute
war criminals, and its judgments had a great impact and influence on the
subsequent development of international criminal law, and international law
in general. However, there are some differences between the 1945
International Military Tribunal (IMT) and the ICTY. The first difference is
that the IMT was a tribunal created by the World War II winning states,
while ICTY was set up to prosecute the perpetrators of war crimes that
122
occurred in the territory of one country, the former Yugoslavia. The second
difference is that the IMT had to adopt on its own the rules of the trial and
criminal responsibility of persons who had committed crimes in World War
II, thus violating the basic rule of nullum crimen, nulla poena sine praevia
lege, and exposing itself to the objections of its retroactive application of the
criminal law. On the other hand, the ICTY applies predetermined rules,
which were adopted before the beginning of its operations. Finally, the third
difference is that the ICTY provides also for concurrent jurisdiction, i.e.,
1
parallel jurisdiction of the Tribunal and national courts.
The aim of this paper is not political, although the circumstances that
led to the creation of this tribunal show that political considerations can
influence the creation of law or legal surrogates. The dilemma has always
been politics or law, force or justice. The issue of the viability of the ICTY’s
establishment has been raised ever since its establishment. For the first time
in the history of international law, this sort of a tribunal, which encroaches
on the sovereignty of a country, its legal system, in its court proceedings,
was created. It is very difficult to answer the question why there was a war
in a country. A long and difficult history, religions differences, and centuries
of considerable influences and interests of the great powers are the main
causes of the war that took place. And due to all that, qualifying that conflict
was so difficult and dangerous.
Commission for Investigation of Violations of International Law in
Former SFRY
The Commission for Investigation of Violations of International Law
in the Former SFRY has made the biggest impact on the establishment of the
ICTY. The Commission’s report, which will be discussed later and whose
content is primarily a set of general, rather than specific facts, contributed to
the preconceptions about not only the establishment of the ICTY, but also
his work. The Commission was established in October 1992, which means
more than one year after the onset of the war in the former SRFY. Just as
before, when the whole of mankind was shocked by the war crimes and
other serious violations of international humanitarian law in the First and
1
Čolović V., Međunarodni sud za ratne zločine na području bivše Jugoslavije, časopis Pravni
život No. 12/1998, Belgrade 1998, pp. 455-456
123
Second World Wars, the international community, after various doubts and
long hesitations, established an investigation commission to determine the
violations of international humanitarian law in the territory of Yugoslavia
during the civil war in Croatia and, later, in Bosnia and Herzegovina. The
commission was established at the request of the UN Security Council,
pursuant to Resolution 780 (1992) dated 06 October 1992, under the name
“Commission Of Experts To Investigate And Collect Information With
Respect To The Secretary-General’s Conclusions On The Evidence Of
Grave Breaches Of The Geneva Convention And Other Violations Of
International Law In Former Yugoslavia” (hereafter: the Commission). The
Secretary-General appointed four members of the Commission and its
Chairman. The first Chairman was F. Kalshoven from the Netherlands, and
the members were M.C. Bassiouni of Egypt, W.J. Fenrick from Canada,
2
Keba M’baye from Senegal, as well as T. Opsahl of Norway.
While, the scope of the Commission initially focused on the analysis
of information, and not on the collection of evidence, after the adoption of
the Security Council Resolution 787 (1992) of 16 November 1992, its scope
was extended to include the investigative function, which related especially
to the investigation of the information about “ethnic cleansing.” Although
the Commission had difficulty in gathering evidence, and during the
investigation activities, which was reflected, above all, in the lack of funding
and other problems in the field, and which led to the Commission sometimes
issuing statements that did not correspond to the actual situation, finally,
after a year and a half, it succeeded in collecting 65,000 pages of written
materials, as well as large quantities of other proofs, such as films and video
recordings. The written materials contained the statements of witnesses and
victims of crime. All the material was processed through an electronic
database, and as such was forwarded, along with the Commission’s final
2
Krapac D., Međunarodni kazneni sud za teška kršenja međunarodnoga humanitarnog prava
na području bivše Jugoslavije od godine 1991: pregled glavnih povijesnih, međunarodnopravnih i kaznenopravnih pitanja, Zagreb 1995, p. 17; After Kalshoven’s resignation on 19
October 1993, and after Opsahl’s death, Bassiouni was elected Chairman and C. Cleiren and
H.S. Greve from the Netherlands and Norway respectively were appointed members.
124
report, in April 1994 to the UN Secretary-General, and to the ICTY
3
Prosecutor.
Although the work and contribution of the Commission was
undoubtedly of great importance for the ICTY Prosecutor and the Tribunal
itself, it has to be noted that the Commission’s report was at the verge of
unacceptable because of its qualification of the armed conflicts in the former
Yugoslavia. The same report was based on the fact-finding field work,
which, as we have said, considering the difficulties in the work of the
4
Commission, was of dubious credibility. It is characteristic that the report
contains the findings of constant crimes, and it is interesting that it deals in a
comprehensive manner also with the identification and interpretation of the
relevant rules of international humanitarian law. Similarly, in the report, the
Commission sought to provide definitions of specific crimes, particularly
genocide and crimes against humanity. The report also warned of the
probable defence of the accused, who would argue in their defence that they
committed the crimes at the orders of their superiors, and that they were not
aware or could not have been aware of the massive crimes that were
committed by paramilitary groups or local armed groups. That was
considered important by the Commission, as in the territory of Yugoslavia,
in addition to the regular military forces, there were also paramilitary groups,
5
more specifically some 45 groups involved.
- Report of the Commission
Attention will be devoted to some parts of the Report, from which it
can be seen that the above statements are true. If the establishment of the
ICTY, as an international judicial institution, depended on this Report, then
the facts stated in that Report had to be more specific. It could be argued that
3 The Final Report in the English language contained 84 pages and included several annexes
with more than 3000 pages; Čolović V., op. cit., p. 457
4 By 31 March 1884, the Commission had received the information that enabled it to establish
the existence of 143 mass graves, each containing 3 to 5,000 dead bodies, created during the
war in Bosnia and Herzegovina, and 44 in Croatia.
5 Krapac D., op. cit., p. 18; The Report states that some of these militias, or for the purposes
of the Report “special units,” committed “some of the gravest violations of international
humanitarian law.”
125
the Final Report (hereinafter: the Report) of the Commission was
unsystematic. The impression is that the members of the Commission
“pieced” the information about the events in the territory of Croatia and
Bosnia according to the criterion of awareness of certain events, rather than
chronologically, by date of such events or their importance for the war in
that region. We will describe the order in which the members of the
Commission stated the information they had obtained (these are Sections
from the Report):
The study of Opština [the Municipality of] Prijedor, located in
north-western Bosnia: alleged genocide and mass violations of the
6
fundamental principles of humanity. The data relating to events in
Prijedor is not specific. By the way in which is it stated, it can be
concluded that it was obtained indirectly, and not through concrete
fact-finding work in the field. We will cite some of the examples.
The Commission states that in early 1992, “a very small Serbian
paramilitary group took control of the television transmitter on the
Kozara mountain in Opština [the Municipality of] Prijedor, and as
a consequence the population in the district could not receive
television programmes from Sarajevo or Zagreb any longer.” It is
not stated what paramilitary group that was, but it can be
concluded, considering that the reception of the TV channels from
the above cities was closed, that it was a Serb paramilitary group.
Why did the Commission fail to state that? Maybe it pertained to
something else. Secondly, are there any facts that prove that that
was done by a paramilitary group? Furthermore, it is stated that
that was a small group. How many members should a military or a
paramilitary group have to be considered small. Similarly, it is not
stated who commanded the group, i.e., at least an assumption in
that respect could have been attempted. The next thing that is
confusing in this Section relates to the sentence, “Prior to the
power change on 30 April 1992, Serbs secretly armed other Serbs
in the district.” What Serbs were these? Where did those Serbs
come from? From Croatia, Serbia, other parts of Bosnia and
Herzegovina? Were they representatives of the authorities or not?
Furthermore, it discusses in very general details the dismissals of
6
Sections 151-182 of the Report.
126
those individuals who were not Serbs, radio broadcasts that
insulted and slandered all those who were not Serbs, etc. It is
interesting that the Report uses the term “non-Serbs,” although that
was not a large area, and is was relatively easy to determine the
ethnicities that were in question. In addition, based on that it can be
concluded that all those who had lived in the area, and were not
Serbs, experienced all of the above. We certainly do not claim that
this is false information. We cannot do that, as in that case we
would have to establish these facts on our own, but the
Commission had to make an effort to provide more specific data on
those who had been banished, maltreated, liquidated, as well as
those who had committed these acts;
7
The battle and siege of Sarajevo. This part is rather confusing.
Perhaps also due to the fact that, at the time of the collection of
information and the preparation of the Report, Sarajevo was under
siege. We will present only one part that relates to Sarajevo based
on which no conclusion can be made, even though the Commission
claims otherwise. It relates to a soccer game in the Dobrinja, a
suburb of Sarajevo, played on 1 June 1993. This information is
based on the statements of several witnesses on the Bosnian side,
and the crater analyses, which was provided to the Commission by
UNPROFOR. The Commission concluded that two mortar shells
landed at the soccer field, and that thirteen persons were killed, and
133 injured. Furthermore, they concluded that the shells were fired
from the Serb side. What is interesting here relates to the part
where it is stated that the weather was clear and sunny with good
visibility, and that the game site could not be seen from the Serb
side because it was surrounded by apartment buildings. The climax
of this part of the Report is the Commission’s conclusion that
persons on the Serb side deliberately attacked civilians and,
therefore, committed a war crime, and that with the information
available, it was not possible to identify the probable offenders
who committed that crime;
7
Sections 183 – 209 of the Report.
127
8
Medak Pocket investigation. In this section, the Commission
could have stated the names of the Croatian officers who were
responsible for the events in the Medak Pocket. Furthermore, it is
incredible that the Report states that the territory was “under the
control of the Serbs,” without stating that in that territory the Serbs
had been an indigenous population for centuries;
9
Detention facilities. The Commission was not able to find out who
operated 308 camps. The Report states that there were 715 camps
opened, of which 237 were operated by the Serbs, as well as by the
former Republic of Yugoslavia. It is not certain what country it is
referred to. At that time, FR Yugoslavia had already been
established, but that is not stated. Furthermore, it is not stated who
operated those camps from Yugoslavia, which is referred to in the
Report. In this part, only one small paragraph is dedicated to the
camps operated by the Bosnian Government, a somewhat bigger
paragraph is dedicated to those under the control of the Croats,
while the paragraph dedicated to the camps under the control of, as
it is not stated, the Bosnian Serb Republic, is several times longer;
10
Rape and other forms of sexual assault. The part of the Report
that pertains to cases of rape and other sexual assault is somewhat
more detailed. It is stated that the perpetrators have been identified.
But it is not clear why the Commission compares the execution of
this crime in wartime and in peacetime. The Commission states
that rape is among the least reported crimes. While that is true, in
wartime there are also other ways to identify rape cases,
considering that there were also cases of mass rape, at all sides, and
the Commission links rape with ethnic cleansing;
11
Mass graves. The Report states the tentative number of graves,
and well as the dead bodies buried in those graves. It is stated that
the information relating to the mass graves may change, and that
8
10
11
9
128
the graves contain also the bodies of those who were “not
necessarily unlawfully killed.”
The Report also includes parts dedicated to the investigation of the
12
13
grave sites at Ovčara near Vukovar, Dubrovnik investigation, and
14
destruction of cultural property. In respect to Ovčara, the Report deals
more with the communications with the administration of the Serb Republic
of Krajina, than the event itself. That part is rather brief. In respect to the
destruction of cultural property, the Commission deals with the Dubrovnik
events and with the destruction of the Old Bridge in Mostar. These parts are
also very brief. The Commission does not consider the destruction of other
famous cultural sites, as if it did not have sufficient time, or perhaps
sufficient credible information, which cannot serve as a justification for the
Commission. Finally, very little room is dedicated to Dubrovnik. But even
that little room is dedicated solely to one incident of bombardment of the
Old City on 6 December 1991, the St. Nicholas Day in the Catholic
Liturgical Calendar. That date and that Saint Day are repeated several times.
In addition, the Report states also the tentative number of victims (82 or 88),
as well as the estimate of the damages expressed in Deutsche Marks. The
Commission finds that based on all the above it is possible to develop cases
directed against the officers responsible for the St. Nicholas Day
bombardment. St. Nicholas Day is celebrated by both the Catholic and
Orthodox religions. But the above Saint Day is much more revered (if not
the most revered Saint Day) by the Serb population, and therefore it is not
clear why the Commission insists on repeating that it occurred on this Saint
Day.
While the Commission’s Report deserves a much broader analysis, the
above review is, in our opinion, sufficient to show that it is based on too
general information, which, as we have argued, was obtained indirectly, and
which was the basis for the proposal for the establishment of the ICTY. The
objections that can be made about the Report do not relate only to the data,
the systematic and chronological order, but also to the way in which these
facts are exhibited. In fact, some parts are devoted to the events in certain
12
14
13
129
cities, areas, regions, and some are related to the specific crimes. For
example, Dubrovnik is mentioned in the part where it relates to the
destruction of cultural property, and in the part dedicated to this city. The
same case is with the information about mass graves, rape, etc. On the basis
of the above, we can raise a number of questions about the work of the
Commission. More specifically, was the time that Commission had to draw
up the Report inadequate, could it have obtained more specific data, was the
Commission prevented by someone in obtaining such data, and whether the
Commission had the capacity to do this job. Of course, other issues can also
be raised.
UN Secretary-General’s Proposal To Establish ICTY
The UN Secretary-General, in his report of 3 May 1993, proposed the
Security Council to adopt the decision on the establishment of the ICTY,
pursuant to Chapter VII of the UN Charter, as its subsidiary body to perform
15
its functions. The Secretary-General cited several reasons for this. First,
from the criminal and political aspect, that way of establishing the tribunal is
more expeditious than its establishment on the basis of a multilateral
agreement, which could take a very long time to collect the required number
of signatures and ratifications of the UN Member States, or by a decision of
the General Assembly. Secondly, the establishment of the Tribunal in this
regard corresponds with the scope that is, pursuant to the Chapter of the UN
Charter, granted to the Security Council in the case of any threat to the
peace, breach of peace, or act of aggression. In addition, the SecretaryGeneral believes that, despite its character as a subsidiary body, the ICTY
would perform its activity as a judicial body autonomously and
independently, as it would not be under the supervision of the Security
Council, in terms of adjudication, and it would not apply any norms that
would be prescribed by the Security Council, but only the norms of
international criminal law.
The question that is raised is weather these reasons, given by the
Secretary-General, are based on the UN Charter. The UN Charter in Article
15
Article 29 of the UN Charter sets out that the Security Council may establish
subsidiary bodies as needed for the performance of its functions; Krapac D., op. cit.,
p. 22 130
39 grants the right and obligation to the Security Council to determine “the
existence of any threat to peace, breach of the peace or act of aggression,”
and to make recommendations, or decide what measures shall be taken to
16
maintain or restore international peace and security. However, the
establishment of an ad-hoc international criminal tribunal is not expressly
provided for in the UN Charter, although the basis for the establishment of
the ICTY was found in the provisions of Articles 24, 29, 39 and 40 of the
UN Charter. The rationale cited for this type of establishment of the ICTY is
rather inconclusive, notwithstanding that, at first glance, it appears to reflect
the true situation in the field, i.e., the former SRFY republics. Such onesided approach to this problem has contributed for the key arguments for the
establishment of the ICTY to include the following: 1) following the breakup
of the former Yugoslavia and the international recognition of the successor
states, the war that perhaps in the beginning and could have been considered
a civil war became undoubtedly an international conflict, threatening
international peace and security. If we remind ourselves how the war in
Slovenia and Croatia, and later in Bosnia and Herzegovina, started, we will
be able to see that the Yugoslav Army, i.e., the former JNA, defended the
territorial integrity, i.e., integrity of SRFY. Subsequently, after the JNA
withdrew from the territory of the former SRFY republics, the conflict
between peoples who had lived in these territories for centuries continued.
The conflict in the former Yugoslavia cannot be in any respect qualified as
international, and therefore this reason for the establishment of the ICTY is
not valid; 2) the second reason suggests that, although the war in Bosnia and
Herzegovina could be considered an internal conflict between different
ethnic and religious communities, the fact that there were mass and serious
violations of international humanitarian law during the conflicts between
different ethnic groups living in these territories requires the creation of a
strong judiciary institution that would have a preventive effect on the
participants in the conflict and that will convey a clear message to them that
17
the war crimes and crimes against humanity will not be tolerated. The
16
Those measures are specified in Article 41 (measures not involving the use of armed force)
and Article 42 (measures involving the use of armed force).
17
Krapac D., op. cit., p. 23; In respect to all the above, the victims of the war in Bosnia and
Herzegovina also have to be noted. A collection of documents of the European Parliament
“The Crisis in the Former Yugoslavia“ EU, Directorate General for Research, Vol.18,
Luxembourg 1994.
131
above factors, stated as the reasons for the establishment of the ICTY could
have even been justified, if the crimes had not occurred in the territory of a
sovereign state, and if all the parties of the conflict had been treated equally,
regardless of their ethnicity or religion. Even when Bosnia and Herzegovina
was internationally recognised, it should have been considered that in the
territory, i.e., within the confines of the SFRY Bosnia and Herzegovina, a
18
new entity, a new state was created; 3) having undertaken all the
provisional measures under Article 40 of the UN Charter, such as the
numerous appeals to the warring parties to abide by international
19
humanitarian law, the Security Council has a duty to ensure prompt and
effective UN action and to fulfil its responsibility to maintain international
peace and security, which was entrusted to it by the UN Member States.
We can argue that the ICTY does not have any solid foundation in the
UN Charter, as well as in the above reasons for its establishment. These
shortcomings later affected also the work of the ICTY. Specifying this
reason was in the function of bringing one party in the conflict in a much
worse position in relation to the others. They did not take into account the
facts that this related to a federal state, which had still existed at the time of
the onset of the conflicts.
3. Establishment of ICTY
From February 1993, i.e., from the adoption of the Security Council
20
Resolution 808 until the adoption of the Security Council Resolution 827
(1993), which is a period of several months, the UN Secretary-General
received a considerable number of proposals by some UN Member States,
NGOs, and think-tanks relating to the establishment of the ICTY. The report
of the UN Secretary-General from 13 May 1993 indicates an array of the
comments and suggestions, which were submitted after the adoption of the
UN Security Council Resolution 808, by 29 UN Member States and
18
Republic of Srpska.
In its Resolution 764 of 13 July 1992, the Security Council warned the warring sides that
they were obliged to abide by international war and humanitarian law, and that there was
individual responsibility. Similarly in Resolution 771 of 13 August 1992, and in Resolution
820 of 17.March 1993.
20
The Security Council Resolution 808 was prepared at the motion of France.
19
132
Switzerland, as well as several reports by special judicial commissions
(France and Italy), i.e., Secretary of the Conference on Security and
Cooperation in Europe, the International Red Cross, and numerous non21
governmental organisations.
The Resolution 827, along with the Report and the Statute of the
ICTY, was adopted on 25 May 1993 by the UN Security Council, and
unanimously at that. Pursuant to Article 15 of the Statute, in the general
meeting on 11 February 1994, the ICTY adopted the “Rules of Procedure
and Evidence,” and in the general meeting on 05 May 1994, the “Rules
Governing The Detention Of Persons Awaiting Trial Or Appeal Before The
Tribunal Or Otherwise Detained On The Authority Of The Tribunal.” As for
the “Rules of Procedure and Evidence,” it is based on the classical
adversarial model, i.e., adversarial procedure, in which the burden of proof
lies with the prosecutor. More specifically, the prosecutor is obliged to
provide proof as the foundation of its indictment, and to present evidence
during the hearing. In the course of this procedure, the parties, rather that the
court, present evidence in accordance with the principle of contradiction.
However, that there are two exceptions. The rules do not contain elaborate
regulations on the use of certain evidence before the Court, and the Court is
given a relatively wide discretion to obtain evidence on its own initiative.
The Rules address also the issues of the protection of witnesses, who were
victims of crimes, and trials in absentia. In principle, trials in absentia are not
allowed, but if after having conducted the investigation against the accused,
the judge confirms the indictment, and the indictment is announced, and the
state of the residence of the indicted or convicted person refuses to execute
the warrant for arrest and extradition, the indictment will again be confirmed
by the ICTY Trial Chamber, and an international arrest warrant will be
issued for the accused.
Here, we will draw attention only to a couple of main characteristics
of the ICTY’s Statute. These characteristics relate to the specifics of this
tribunal, which can and should be criticised. We will not dwell on the
general provisions. The Statute includes a Preamble, which indicates the full
21
Čolović V., op. cit., p. 458
133
22
name of the Tribunal and refers to Chapter VII of the UN Charter, which
also underlies the decision on the establishment of the ICTY. According to
Article 6 of its Statute, the ICTY tries only individuals for crimes committed
after 1 January 1991. Why was the exact date of the beginning of the conflict
not stated? It certainly was not 1 January 1991. Interestingly, the Statute
(Articles 9 and 10) provides for concurrent jurisdiction of the ICTY and
national courts, respecting the non bis in idem principle, but the ICTY
reserves the right, in certain cases, to act in the place of the national court,
i.e., adjudicate in its place. We will devote a special part to concurrent
jurisdiction of the ICTY.
CONCURRENT JURISDICTION OF ICTY
As we have stated, the Statute of the ICTY defines the jurisdiction of
this Tribunal as parallel, i.e., concurrent with the national courts of the states
23
created in the territories of the former SRFY. However, the second
paragraph of Article 9 of the Statute specifies that the ICTY’s jurisdiction
shall have primacy over national courts, so that, at any stage of the
procedure, the ICTY may formally request national courts to defer to the
competence of the ICTY “in accordance with the present Statute and the
Rules of Procedure and Evidence of the International Tribunal.” Concurrent
jurisdiction that is provided for in the ICTY Statute did present an
innovation in international law, but it was of limited effect. More
specifically, the primacy of the ICTY’s jurisdiction can only be achieved
pursuant to the provisions of the Statute and Rules of Procedure and
Evidence. These provisions provide as follows:
a) Article 10, Para. 2, of the Statute specifies only two events in
which jurisdiction is ceded; and
22
It is interesting that there have been complaints about the name of the Tribunal, particularly
the phrase “the former Yugoslavia.” More specifically, it was proposed that it should refer to
Croatia and Bosnia and Herzegovina.
23
Article 9, Para 1, of the ICTY Statute.
134
b) the right to initiate the issuance of a request to a national court,
under the conditions specified in the two events from Article 10 of
24
the Statute, is granted exclusively to the prosecutor.
As it can be seen, it is very unlikely that the ICTY would engage in
deciding on its own concurrent jurisdiction. The above two events, provided
for in Article 10, Para. 2, of the Statute, stipulate that a person who has been
tried by a national court for acts that fall within the jurisdiction of the ICTY
will be tried subsequently before the ICTY on subsidiary basis, i.e., “only if:
a) the act for which he or she was tried was characterised as an “ordinary
crime;” or b) the national court proceedings were not impartial or
independent, were designed to shield the accused from international criminal
25
responsibility, or the case was not diligently prosecuted.”
When the ICTY Trial Chamber agrees with the Prosecutor’s request,
in accordance with Article 9, a formal request shall be submitted through the
Registrar to the State under whose jurisdiction the court is. If the State fails,
within 60 days, to file a response to the ICTY that it has taken or is taking
adequate steps to comply with the request, the Trial Chamber may request
the President to report the matter to the UN Security Council, in accordance
26
with Rule 11 of the Rules of Procedure and Evidence.
The terms used in Article 10, Para. 2 of the Statute, such as “ordinary
crime”, “not impartial or independent,” “to shield the accused from
international criminal responsibility,” or “not diligently prosecuted” have
created and will create major problems with their interpretation, and
therefore in the relations between national courts and the ICTY. These terms
are very difficult to interpret, as the qualification of the crime, the course of
the procedure, or the nature of the procedure itself depends on the nature of
the authority or the institution that qualifies, i.e., interprets these concepts.
The ICTY does not have to agree with the qualification of any of the above
24
Rules of Procedure and Evidence, Rule 9; Krapac D., op. cit., p. 37
As a matter of fact, the first paragraph of Article 10 of the Statute, under the title Non-bisin-idem, states: “No person shall be tried before a national court for acts constituting serious
violations of international humanitarian law under the present Statute, for which he or she has
already been tried by the International Tribunal”.
26
Čolović V., op. cit., p. 468
25
135
institutions. On the other hand, is the ICTY competent and qualified to
interpret a country’s national legal system and procedure? How is it assessed
whether a trial is not conducted in an impartial, independent and diligent
manner? Could one also raise the question of weather the ICTY would
assess the respective procedure in the same way? Do the Statute and the
Rules of Procedure and Evidence include any reference of professional
incompetence of the national legislative and judicial authorities, which
created the legal system of the country in the first place? In assessing the
impartiality and objectiveness of the procedure, the ICTY may use the
standards that have been developed in practice by international human rights
law protection bodies such as the Commission and the Court of Human
Rights of the Council of Europe, but even these standards cannot be a sure
way to assess a criminal procedure, which is governed by the laws and
regulations adopted by the authorities of the respective country. Therein lies
the reason for the uncooperativeness of state authorities with the ICTY. For
serious breaches of the Geneva Convention, the ICTY can easily make a
distinction between the legal qualifications of the legally qualified war
crimes and ordinary crimes under national legislation, i.e., the legislation of
the former SRFY republics, while it will have more difficulties with crimes
against humanity.
Other Issues Pertaining To The Work Of ICTY
We have described just some of the elements that relate primarily to
the establishment of the ICTY. However, other issues can also be raised in
connection with the work of the Tribunal. Specifically, the ICTY is not a
general, or “regular,” criminal court, but an ad- hoc tribunal which has its
temporal, territorial, and content-limited task to adjudicate. It has to be noted
that the duration of the ICTY’s operation is not predetermined, or otherwise
tied to any tasks that had to be finalised in relation to indictment, arrest, and
trial of the accused. The content-based limitation of the ICTY’s operation
results from its political task that consists of establishing and maintaining
27
peace and security in a particular region affected by conflict. Unlike the
Nuremberg IMT, the ICTY’s competence relating to adjudication does not
arise from the occupation rights of the occupying power after the
27
Roggemann H., Kaznenopravna i regionalna suradnja – napomene o odnosu prava i
politike, časopis ADRIAS, Vol. 12, Split 2005, p. 24
136
unconditional surrender within the legal space without own sovereign power,
but is based on a limited scope of interventions, aimed at achieving a
28
specific political goal. Therefore, we refer primarily to the political
element that “follows” the ICTY.
On the other hand, although the ICTY has only a limited territorial and
temporal jurisdiction, i.e., it can try only those suspects who are believed to
have committed crimes against humanitarian law and the laws of war in the
former Yugoslavia from 1991, until now it has not tried any suspects who
are not members of one of the former Yugoslav nations. Even after the 1999
war between NATO and FR Yugoslavia in connection with the Kosovo
crisis, when there were very clear indications that NATO may have
committed serious violations of international laws of war by deliberately
bombing civilian targets, the former ICTY Chief Prosecutor, Carla Del
Ponte, concluded that there was no sufficient grounds to even launch a
29
serious investigation of those crimes. Based on this we can conclude that
the ICTY was established to try the citizens of the former SFRY republics.
The next issue that has to be pointed out refers to the work of the
prosecutors and other bodies within the ICTY. In fact, the prosecutors played
a controversial role, as there has always been a large difference in terms the
proportions of the indictments raised against members of different ethnic
groups. While that, in itself, is not an argument against the objectivity of the
prosecutors, if this discrepancy corresponds to the current political rating of
the specific ethnic communities, then it becomes a reasons for concern, as it
opens room for the interpretation that, in terms of the sequence and scope of
indictments against members of certain ethnic groups, the prosecutors are
30
guided also by the political influences and current priorities. We said, at
the beginning, that we would not dwell on the numbers, but there is an
incredible disproportion between the numbers of accused and convicted of
citizens of Serbia and the Republic of Srpska, and the numbers of accused
and convicted of citizens of other former SRFY republics. Furthermore, the
ICTY’s organisation itself shows that the prosecutors and the defence are not
28
Roggemann H., op. cit., p. 25
Fatić A., Međunarodni krivični tribunal za bivšu Jugoslaviju u savremenoj diplomatiji,
Međunarodni problemi, Vol. 54, No. 1-2, Belgrade 2002, p. 50
30
Fatić A., op. cit., p. 62
29
137
in equal position, as the prosecutors are an organisational unit of the ICTY,
and not an independent party that appears before it, which implies that the
prosecutors enjoy a number of procedural and normative preferences in
31
relation to the defence. One of the main objections relates to the extremely
high level of discretion that the ICTY judges have in the interpretation of the
32
ICTY Statute and Rules of Procedure. In fact, that is the root problem in
the work of the ICTY, and less importantly in the qualifications of that
institution.
Qualification of the Conflicts
However, the main problem relating to the work of the ICTY, i.e., all
the facts related to the establishment and operation of this Tribunal, is
perhaps the qualification of the war that took place in the territories of the
former SRFY. The war in Bosnia and Herzegovina cannot be qualified as a
civil conflict or as an international armed conflict. The armed conflict was
sui generis a conflict that had both the elements of a civil war, i.e., internal
conflict, and international conflict. Until the proclamation of the
Independence of Bosnia and Herzegovina by the incomplete Assembly
(Parliament) of Bosnia and Herzegovina, the recognition of Bosnia and
Herzegovina as a new subject in the international community, and its
subsequent admission to the United Nations, the conflicts in Bosnia and
Herzegovina had been an internal conflict, more specifically a form of a
rebellion of one part of the territory against the central government. At that
time, a national militia of the secessionist (rebel) authorities was established,
and (in early 1991) initiated general attacks on the central federal
33
government authorities and the JNA forces.
After the proclamation of the sovereignty and independence of Bosnia
and Herzegovina by thee incomplete Assembly, the civil war (internal
conflict) evolved into, as some authors argue, an international armed conflict
in which one party existed as the fictional, legally non- established state.
Such a creation cannot be called the state as it does not have all the main
31
Ibidem.
Ibidem.
33
Jončić V., Pravni osnovi učešća JNA u ratovima 1990-1991 na prostoru SFRJ, časopis
Vojno delo, Vol. 60, No. 3, p. 28
32
138
elements for the state power, i.e., it did not have full control over its territory
(it could not impose its control, and it did not have a full legitimate and
effective legal authority), which implies that Bosnia and Herzegovina not
only did not control its territory (as a condition for the admission to the UN),
it did not even have sovereignty - one of the main attributes of the state. On
the other hand, two states were de facto not recognised by the international
community – the Republic of Srpska and Croat Republic of Herzeg-Bosnia.
This view is founded primarily on the opinion of the International Court of
Justice in The Hague, ruling in a dispute regarding the Bosnia and
Herzegovina action against the Republic of Serbia. In the case of the
application of the Convention on the Prevention and Punishment of the
Crime of Genocide in a dispute regarding the Bosnia and Herzegovina action
against Yugoslavia, the International Court of Justice found that the acts of
the Army of the Republic of Srpska could not be considered acts of
34
Yugoslavia and its army.
On the other hand, the war in Croatia had different characteristics,
depending on the period of the conflict that is analyzed. At the beginning of
the armed conflict in Yugoslavia there were three clearly distinct sides:
Croatia, with its paramilitary forces that, according to the decision of the
Presidency of SRFY, should have been dissolved, the people of Serb
Krajinas with their armed formations, which also should have been
dissolved, according to the decision of the Presidency of SRFY, and the JNA
as the legitimate armed forces of SRFY whose task was to try to prevent the
35
escalation of the war on ethnic basis and separate the conflicting forces. In
fact, that should be the starting point when it comes to qualifying the conflict
in Croatia. The JNA was present in the territory of Croatia and defended the
sovereignty of SRFY, the SRFY Presidency acted as the supreme
commander of the armed forces, and the federal state still existed. These are
the facts that had to be taken into account.
34
35
Ibidem
Jončić V., op.cit., p. 35
139
Conclusion
The creation of the ICTY is a sort of precedent, and it is certain that its
establishment and its work, and the rules adopted for the trial of war
criminals and establishment of accountability will have a major influence on
the development of international law in general. The main problem in terms
of the work of ICTY is its qualification of the armed conflict in the SFR
Yugoslavia. A question that can be raised is weather the establishment of
this Tribunal is viable. The answer may be different depending on the
interpretation of the ICTY regulations, and the general attitude towards that
court. The ICTY is indeed a court, established by the UN Security Council,
but its character depends primarily on the actions of its bodies, as well as on
the application of the regulations by these bodies.
If we had to make a certain conclusion about the creation of the ICTY,
it would relate to the question of the viability of the establishment of the
ICTY, and that question can be posed also as a question of the relationship
between the current political interests and international law. This stems from
a number of problems that occur in the work of this Tribunal. This problem
does not relate only to its establishment. It is customary that courts are set up
by parliaments, and not by the executive authorities. The ICTY was
established by the UN Security Council, which is an executive authority,
while, from the procedural aspect, it could have been expected naturally that
the debate on its establishment would be initiated by the UN General
36
Assembly. These problems relate also to the incorrect assessment of the
circumstances that led to the creation of the ICTY, as well as a
misunderstanding of the historical events, which led to the 1990s conflict in
the former SFRY.
36
Fatić A., op. cit., p. 64
140
LACK OF PRINCIPLES IN THE…
Goran Petronijević,
Lawyer from Belgrade
LACK OF PRINCIPLES IN THE APPLICATION OF
LEGAL STANDARDS IN ICTY OPERATIONS
1. 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, or the
International Criminal Tribunal for the former Yugoslavia (hereinafter: the
ICTY) was established by the UN Security Council, in accordance with its
Statute adopted on 25 May 1993, Resolution 827, UN Security Council
Resolutions that were revised on several occasions,1 with the principal
objective of fulfilling the universal principle of individual criminal
responsibility of persons responsible for violations of international
humanitarian law and the rules of war. This activity of the ICTY was
intended to provide assumptions and enable the other purpose of its creation,
in accordance to the Resolutions of the UN Security Council, which is to
create conditions for the reconciliation between the nations and ethnic
groups involved in the conflicts in the former Yugoslavia in the period from
1991 and onwards.
2. It is widely known that in the territory of the former Yugoslavia
from 1991 there had been several armed conflicts, whose character has
remained controversial even to this day in the case law and international
1
Resolution No. 1166 from 13 May 1998, Resolution No. 1329 from 13 November 2000,
Resolution No. 1411 from 17 May 2002, Resolution No. 1431 from 14 August 2002,
Resolution No. 1481 from 19 May 2003.
The Resolutions that did not revise the Statute, but which relate to the Statute:
Resolution No. 1503 from 28 August 2003,
Resolution No. 1504 from 4 September 2003,
Resolution No. 1534 from 26 March 2004.
Goran Petronijević
141
legal theory.2 Such conflicts have left behind considerably disturbed interethnic relations in the former Yugoslavia, which even to this day (more than
20 years since the onset of the conflicts) have not returned even close to a
tolerable level. It is also known that these conflicts had a large number of
casualties of all nations and ethnic groups that were involved in the conflicts,
which were committed by the members of those same nations and ethnic
groups in their mutual clashes.
3. From its establishment and from the beginning of its practical
operation, the ICTY has demonstrated many weaknesses, which ultimately,
in the opinion of many legal experts, resulted in greatly impairing its
reputation and credibility, which were given to it by the authority of the
decisions and by its very establishment by the UN Security Council. It
appears that the ICTY by its work and the way of adoption and
implementation of some decisions did not meet the expectations and
objectives for which it was established by the UN Security Council. As a
result of such conduct by the ICTY, today, that is, 20 years after its
establishment, the issue is raised regarding the achievement of the purpose
and the viability of the establishment of an ad-hoc tribunal, such as the
ICTY. Meny legal professionals, but also the lay public, can come to the
conclusion, by monitoring the work of the ICTY, that in its work and in the
way it applies the Statute under which it was established, international legal
rules in this area, and in particular the Rules of Procedure and Evidence as
the ICTY Process Code, that there are unexplained inconsistencies.
4. Based on a simple statistical review of the data on the ethnic
composition of the persons against whom investigations were initiated at the
order of the ICTY, as well as the persons against whom the trials were
conducted, and the persons who were pronounced final judgments, and
specifically an analysis of the type and severity of sanctions that were
imposed, one can come to the conclusion that the ICTY’s work was
dominated almost by a discrimination against members of the Serb people in
all the territories of the former Yugoslavia. This has led to the violation of
the universal principles of the prohibition of war crimes and the need for
2
According to one opinion, it is exclusively a civil war between the nations and ethnic groups
from the former Yugoslavia, according to others, it is partly a civil war, and partly an
international conflict, while according to the third opinion, it is a civil war with some
elements of religious conflicts.
142
their punishment regardless of the ethnic or religious background of the
perpetrators of war crimes. A particular problem is the attitude towards
victims of war crimes, where the conduct of the trial, and ultimately at its
outcome, must not reflect their ethnic, racial, or religious origins. All victims
of crime before this tribunal would have to be equal. Unfortunately, in the
practical work of the ICTY, there have been very serious differences in the
application of certain standards of legal rules and legal institutions when it
comes to “the Serb side” in relation to the other sides in the conflict. Such an
observation can be turned into a serious expert conclusion if all the ICTY’s
decisions and pending actions until now were to be considered and analyzed.
5. In the recent work of the ICTY, a total of 89 persons were
convicted to a total of 1380 years in prison, of which 67 Serbs, who were
sentenced to 1125 years in prison, with two final life sentences so far (and
another two still not final), while the members of all other nations and ethnic
groups were sentenced to 225 years in total, of which 14 Croats were
convicted to a total of 183 years, 5 Bosniacs to 41 years, two Albanians
sentenced to a total of 19 years, and a Macedonian to 12 years in prison. If,
on the other hand, these statistics are compared with the total number of
casualties in all the conflicts in the former Yugoslavia, a major inconsistency
is evident. By simply comparing the population numbers by the nations and
ethnic groups that made up the former SFRY, in accordance with the last
census before the war, and the number of casualties by the same nations and
ethnic groups in all of the conflicts, almost a mathematical parity is evident,
based on which one can draw the conclusion that all the nations and ethnic
groups had similar numbers of victims. This leads to the next logical
assumption that among all nations and ethnic groups there were members
who carried out acts qualified as war crimes against the other nations or
ethnic groups, which implies a certain statistical parity in the number of the
convicted and the length of sentences imposed before the ICTY. Based on
the above, it can be seen that that parity has been to a large extent impaired
by the ICTY applying different standards.
6. If one analyses the victimological aspect of the work of the ICTY, a
large illogicality and almost a discrimination against the Serb victims is
evident, which is a much more serious consequence of the inconsistent work,
and a result of such work of the ICTY. It is widely known that other
nationalities and ethnic groups were also mutually involved in the conflicts
without the participation of the Serbs (Muslims and Croats, Macedonians
Goran Petronijević
143
and Albanians), especially in the territory of Bosnia and Herzegovina and
Macedonia, and that during these conflicts a large the number of crimes
occurred, in which the Serb side was not involved. The subject of the trials
before the ICTY, in terms of Bosniacs and Croats, for the most part is this
part of the conflict in the former Yugoslavia, between Croats and Muslims,
but not crimes committed by Croats and Muslims against the Serb side. This
raises the legitimate question which side killed almost 28,000 Serb people,
of which more than a half civilian population? Who killed that number of
people, and who is responsible for these acts? The same question could be
asked also for a large number of Serb casualties, mostly civilians, in Kosovo
and Metohija? This and similar questions, when the aftermaths are on the
Serb side, have not been answered by the ICTY.
7. In addition to the inadequate treatment of the Serb victims, when it
comes to their killings, the same treatment is given to the Serb victims who
had survived various forms of torture (prisons, concentration camps, etc.),
where the perpetrators were the Croats, Muslims and Albanians. The largest
ethnic cleansing in the former Yugoslavia was committed exactly against the
Serb population. The Serb population was almost completely ethnically
cleansed from Croatia (only during one operation “Storm”), with
approximately 220,000 people forcibly expelled, and thousands of people
killed. The Kosovar Albanians also committed pogroms and the biggest
ethnic cleansing of the Serb population, drastically disrupting the ethnic
composition of this Serbian province (whose status is now the subject of a
dispute before the international community), expelling nearly 300,000 Serbs
from this area. For the ethnic cleansing of the Serbs from Croatia, or for the
ethnic cleansing of the Serbs from Kosovo no one has been found
responsible by the ICTY.
8. If one considers the below statistics on the numbers of persons
against whom the investigation was initiated by the ICTY or at the order of
the ICTY, and the numbers of withdrawn indictments and judgements of
acquittal, one can see that on the side of the Serb people (though far more
processed) the number of those against whom the indictment was withdrawn
and who were acquitted is the lowest. All that has been presented above can
and must be a subject of a serious analysis of the perception of the ICTY’s
role and the results of its work so far. The reasons for this and similar
treatment by the ICTY should be a subject of a serious study by an
independent team of experts, under the auspices of the UN, and the purpose
144
of this activity should be the final evaluation of the achievement of the
purpose for the ICTY’s establishment and operation.
9. There is no need to remind ourselves that the equality of all people
is one of the fundamental principles and assumptions for the enjoyment of
any human rights. The 1948 Universal Declaration of Human Rights, as one
of the most important documents issued under the auspices of the UN, in its
Article 1 states, “All human beings are born free and equal in dignity and
rights.” This principle must be incorporated as a fundamental principle in all
the international and national legislations. Article 7 of the same Declaration
states, “All are equal before the law and are entitled without any
discrimination to equal protection of the law.” The International Covenant
on Civil and Political Rights, in Article 14, Para. 1, guarantees that, “All
persons shall be equal before the courts and tribunals.” Article 21, Para. 1, of
the ICTY Statute guarantees that, “All persons shall be equal before the
International Tribunal.” All the above cited provisions of international
treaties, including the ICTY Statute, undoubtedly imply a guarantee of
equality for all, with equal respect for their rights before international courts.
Unequal treatment of defendants in criminal proceedings completely
undermines this concept, and seriously calls into question the legitimacy,
legality and fairness of the decisions made in such proceedings.
10. In the practical application of some substantive law and procedural
law issues, in the proceedings before the ICTY, they are very broadly
interpreted and inconsistently applied. Most often these deformations, as it
has previously been stated, occur in the cases against the accused of Serb
ethnic background for any of the events resulting from the conflicts in the
territory of the former Yugoslavia. In the following presentation, we will try
to describe a few of them to substantiate this claim with facts.
11. One of the most problematic instruments applied by the ICTY in
terms of the forms of liability of the persons prosecuted in the proceedings
before the ICTY, is the definition and the application, as well as the
extensive interpretation, of joint criminal enterprise as a form of liability
(hereinafter: JCE). The application of this instrument in the manner it has
been interpreted in the ICTY’s work and decisions has led to the widest form
of responsibility that verges on and in some instances evolves into the
objective responsibility of an entire nation or ethnic group, thus making a
large number of innocent people responsible. One of these forms of
Goran Petronijević
145
accountability is particularly the third form of JCE, JCE III - the indictments
for the crimes that were never intended, but were nonetheless reasonably
foreseeable. Such legal interpretation and application of this form of strict
(inevitable) responsibility by the ICTY may apply to any individual, from
ordinary soldiers, to the top commanding structures, with only one condition
that the individual is in any way engaged in combat on one of the sides. In
this situation, one may be attributed the crimes for which one has not even
heard of, let alone was in any way involved in their execution, or in any form
of liability that is known in the criminal law practice in the world. As it has
been discussed above, regardless of the controversy about the nature of the
conflict in the territory of the former Yugoslavia, in each of these options,
the dominant opinion is that the conflicts in the territory of the former
Yugoslavia had the character of a civil war. It is common knowledge that
civil wars, and especially those that occur in the territories with ethnically
and religiously mixed populations, which are additionally burdened with the
difficult historical facts from previous conflicts, can be very bloody. Such
conflicts regularly lead to commission of very serious crimes on all sides.
That was true also in the case of the conflict in the territory of the former
Yugoslavia. Starting from this assumption, and considering this third form of
the JCE liability, that would simply mean that whoever has fulfilled his or
her constitutional obligation to be engaged in any way in the conflict could
have foreseen that during these conflicts various crimes would be committed
also by the side on which he or she is engaged, and therefore he or she could
be responsible for such crimes. In addition to persons who were engaged in
the conflict on one of the conflicting sides (soldiers, policemen, and the
like), the third form of the JCE liability applies also to some civilian
structures of the warring sides. First of all, these are the political structures
that were in power at that time. An extensive interpretation of the third form
of the JCE liability, and introducing the political factors to the responsibility
considerations, may lead to a very paradoxical possibility that, ultimately,
every citizen who voted for a specific political option could have foreseen
that that political options was involved in JCE, and that it could lead to
armed conflicts – a civil war, in which probably crimes would be committed
for which even a voter could account for. This is absolutely unacceptable.
This shows the absurdity of the use and interpretation of this form of liability
by the ICTY.
12. Such expansion of liability is the negation of one of the basic rules
of criminal responsibility, and that is individual responsibility for the act of
146
committing a crime. The purpose of criminal proceedings in all jurisdictions
in the world, including the procedures as regulated by the ICTY, is strictly to
establish individual responsibility of each processed individual and his or her
role in the commission of each individual crime. The application of the third
form of JCE completely relativises this principle, and leads to an almost
objective responsibility in its widest form.
Finally, in respect to JCE, it has to be noted that when one considers
the indictments, judgments, and even the final judgements, it is evident that
this problematic form of accountability is almost reserved for the members
of “the Serb side.” As for the Serb side, JCE was applied to all military,
police, security, political, and local government structures in the Republic of
Serbia and the Republic of Srpska, which again confirms the initial
arguments in this paper.
13. Another form of liability used by the ICTY and the manner in
which it is applied present a breach of the basic criminal law rules on
responsibility. Aiding and abetting, in the manner this form of liability is
applied by the ICTY, may also be a basis for establishing responsibility of a
large and wide circle of persons who provided the logistics in any way for
one of the sides in the conflict. The ICTY’s practice regarding this and the
previous forms of liability is not uniform, and there are different opinions,
but unfortunately the prevailing opinion is that anyone who in any way
supports or assists one of the sides in the conflict, even if he or she does so
with no direct intent of committing any act, much less any crime, can be
responsible for crime. According to this prevailing opinion in the ICTY,
anyone who assists and supports any side may be responsible for the crime
that he or she never wanted or that he or she was not even aware of. This
form of liability is based on the assumption that a person who assists a party
in a civil war is aware that crimes are likely to be committed, and thus any
form of assistance makes him or her guilty of aiding and abetting someone
who is doing something unlawful during the conflict. We believe that this is
also an unacceptably way of extensive interpretation of this form of liability,
which, similarly as JCE, can lead to a very large numbers of individuals
responsible for specific crimes.
14. By combining these two forms of liability, as it has been
previously described, i.e., aiding and abetting and the third form of JCE, the
liability may be extended to extreme levels to make a whole nation, ethnic
Goran Petronijević
147
group, or even an entire country accountable. Such combined use of these
two unacceptable forms of liability can again be found only in the
indictments and convictions against the accused on the Serb side, which is
another evidence of the application of different standards and inequality by
the ICTY.
15. The overall problem of the application of these two unacceptable
forms of liability could be considered as follows:
It is common knowledge is that in recent times it has been both
scientifically and historically established that the main cause of the outbreak
of the inter-ethnic conflict and the civil war in the territory of the former
SFRJ were the external factors, followed by the secession of some of the
former republics and provinces. The question is raised weather the parts of
the international community that had fostered, supported, and encouraged,
and in some cases, had been directly involved in the breakup of the former
Yugoslavia and the secession of its parts, would be responsible? Had they
been aware that such activities would necessarily evolve into a civil war in
which crimes would occur?! Had they been aware that the premature and
unlawful recognition of the self-proclaimed independent parts of the territory
of a sovereign state would foster inter-ethnic conflicts, which at the time
were reasonably foreseeable?! Could those who delivered arms to some of
the parties and provided them with other equipment during the conflict itself
have reasonably foreseen that those weapons and equipment would be used
in the commission of crimes?
If the standards for the application of JCE and aiding and abetting had
been applied to the specific external factors that had played a key role in the
breakup of the former Yugoslavia, would that have led to their
responsibility, and would those parts of the international community then
support these standards before the ICTY?!
16. The interpretation and application of the provisions of
international criminal law, which define genocide as one of the worst acts of
violation of international law, by the ICTY is also very problematic. An
extensive interpretation of the term genocide, based on multiple
assumptions, has led to a complete absurdity. Defining genocide on the basis
of an objective element (number of casualties), without a clear subjective
element (genocidal intent) is also unacceptable. Indirect derivation of the
subjective element (genocidal intent) from the objective element (methods
148
and consequences of committing some forms of war crimes) is also
unacceptable. The method of qualification of the 1995 events in and around
Srebrenica is exactly one such example. The ICTY’s decision that in
Srebrenica the Serb side committed genocide against the Muslims, which is
based on the assumed number of casualties on the Muslim side, which has
never been established explicitly or in any of the trials as required by the
case law in all countries in the world, and the creation of a new concept of
“situational (temporary) genocidal intent,” is a negation of everything that
essentially is genocide.
It appears that in this situation one political decision, which was likely
needed to provide an excuse, had to be pre-validated through the court
proceedings. In this situation, the decision-making process was completely
the opposite from the regular procedure. Instead of applying the predefined
legal standard (the definition of genocide) on the established factual
situation, the starting point was the assumption that this had to be genocide,
and then, in that situation, the ICTY was obviously forced to change the
forms of some of the essential elements of this crime, and adjust the factual
situation to bring it under the decision that has already been rendered.
17. In addition to these several substantive law examples of the
method of operation and application of the standards by the ICTY, it appears
neccessary to draw attention to some procedural problems relating to the
case law created before the Tribunal.
18. The proceedings before the ICTY, in many cases, start with the
presumption of guilt, and not with the presumption of innocence. The facts
that are integral parts of the previously passed final judgements are treated in
new procedures before the ICTY as established and ruled, and therefore, at
the beginning, impose the presumption of guilt on the person who is
prosecuted, as the burden of proof is now effectively passed to the defence.
Therefore, the defence has to prove “reasonable doubt” in relation to these
facts, so that they could be re-examined in the respective new trial. A
particular problem is that the facts from the previously adjudicated
proceedings may have been less relevant for the defendant in this respective
procedure, and that he or she did not challenge them or questioned their
validity individually during the previous procedure. Such facts are included
in the judgment, and in the following proceedings are already treated as the
established facts that impose a priori the presumption of guilt on the new
Goran Petronijević
149
defendant in this second procedure, even though he or she, or his or hers
defence did not have a chance by that point to examine the truthfulness of
these facts in any way. The most common explanation of the ICTY
Chambers for the rejection of the defence proposals for verification of this
type of facts is that they have already been verified in the course of another
proceeding (witness was cross-examined by another defence). Such practice
is unacceptable as both the indictment and responsibility would have to be
individualised, which in turn implies considering each fact from different
aspects.
19. Poor conditions of the defence, the inequality of arms at the
expense of the defence, the lack of funds for the defence, and imposition,
rather than a choice of counsel, for the most part lead to the methods of
defence in which a legally uneducated individual who is faced with a large
number of general and specific facts deals exclusively with the lowest
factual level, i.e., specific facts that related to him or her personally. In his or
her inability to review higher factual levels, in terms of generality, these
facts are often included as integral parts of the judgments, without having
been tested in any way in terms of their accuracy. The new defendant in the
new procedure, on whom this general fact imposes the presumption of guilt,
is now faced with all sorts of problems, just as the previous defendant in the
previous procedure, but now with an additional aggravating circumstance,
and that is the burden of the general facts that the Tribunal considers already
proven.
20. Regardless of the factual relationship, temporal overlaps and often
interconnections between the events that occurred during the conflicts in the
territory of the former Yugoslavia, each individual trial would have to be a
procedure sui generis in terms of the complete factual situation with which
the defendant is charged. Otherwise, which is what has happened before the
ICTY, subsequent trials involving the events that have already been tried, in
accordance with the Tribunal’s practice, turn into “paper trials.” Not
allowing witnesses to appear in vivo before the Tribunal, and to be crossexamined now by the new defendant’s defence, and for the facts that were
not previously challenged to be examined, is a serious violation of the
defendant’s right to enter into trial with the presumption of his or her
innocence. In this way, the presumption of innocence before the ICTY is
usually only declarative in nature, and its factual application, in the manner
previously described, proves to be the opposite.
150
21. The application of the provisions of the ICTY Rules of Procedure
and Evidence, in terms of the recognition of witness statements without
cross-examination, is also a problem that often results in imparing the rights
of the defence. Not allowing the accused to confront the witness completely
undermines the principle of immediacy of evidence.
22. The standards established by the ICTY in its decisions in terms of
the treatment of circumstantial evidence (second- and third-hand evidence,
and conveying information from unknown sources - hearsay) also greatly
compromise the possibilities to establish the material truth in the
proceedings before the ICTY.
23. The violations of the Rules of Procedure and Evidence relating to
the method of disclosure of evidence are very common. In more than 90% of
cases that is done by the prosecution, and of course to the detriment of the
defendant and the defence. The prosecutorial investigation system implies
the obligation of timely disclosure of exculpatory evidence by the
prosecution to the defence, which the prosecution in the majority of cases
fails to do. This phenomenon can be described as an abuse of the procedural
rights by the prosecutor, and as an unpunished obstruction of law. In some
cases, 3 in the pre-trial and the trial phase, at the written objections of
defence relating to the violations of the rules on the disclosure of evidence
by the prosecution, the tribunal found that the prosecution had violated the
rules for a total of 76 times! No sanctions were imposed, and the prosecution
had no interest to refrain from this illegal conduct. In the same case, only
after the prosecution case (presentation of evidence by the prosecution) had
been finalised, the prosecution disclosed to the defence a large number of
documents that had been usable by the defence in the previous stage.
24. The procedural issues relating to the possibility for the defence to
present quality evidence by calling defence witnesses to testify are created to
a large extent by the fact that the prosecution, through its investigators, had
examined in the preliminary stages thousands of people who might have had
any knowledge of the facts that needed to be proven. In this way, the
prosecution has “reserved” the witnesses, who have been intimidated in
3
The trial of the former president of the Republic of Srpska Dr. Radovan Karadzic IT-955/18-I.
Goran Petronijević
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some way by their treatment by the prosecution, and often refused to
cooperate with the defence. Although the “intimidation” and influencing of
witnesses comprise a serious offence that falls within the contempt of the
court, the prosecution has not been objected for it. This conduct by the
prosecution remains unsanctioned as well. Almost all of the witnesses who
are contacted by the prosecution are summoned as suspects, which among
them creates a special feeling of intimidation and concern for their own fate,
and in such situations their accounts of certain facts are very often not true,
and naturally go to the detriment of the other persons’ defence.
25. Despite clearly proclaimed rules of procedure and evidence
relating to the obligation of all parties to cooperate with the ICTY (both
prosecution and defence), there are different standards in terms of failure to
comply with this rule. When certain documents, evidence or the accused are
requested from the Republic of Serbia or the Republic of Srpska, that is done
in a rather brutal manner, threatening with the authority of the UN Security
Council and the introduction of sanctions and using similar threats, but when
it comes to, for example, Croat and Muslim sides and their failure to comply
4
with orders of the ICTY, neither threats, nor sanctions are imposed. That
has created at the level of states and nations a feeling of discrimination by
the ICTY, which has evolved into a general opinion “that the ICTY was
established to try the Serbs.”
26. The principle of equality of arms of the prosecution and the
defence is one of the basic principles and a precondition for the right to a fair
trial. This principle has never been established in practical application by the
ICTY. On one side, there is the prosecution with huge financial, human, and
documentary resources, and on the other side, there is the defendant, usually
without any financial resources, and the very restricted possibility to obtain
the relevant documents and adequate preparations for calling the necessary
witnesses. The material strength of the prosecution and the amount of money
spent by investigators and the prosecution is several hundred times greater
than the material resources that are very restrictively and irregularly
4
The case of uncooperativeness of Croatia with the ICTY, and the alleged disappearance of
the Toplica Diaries in Gotovina case, etc.
152
approved to the defence. If we add to this that the prosecution and the ICTY
are backed by the authority of the UN Security Council with whose
assistance they can force any state to turn over the requested documents
without any problems, and that from the territories of the former Yugoslavia,
and especially from Serbia and Bosnia and Herzegovina, in some areas,
whole archives were excluded by the international forces, investigators, and
prosecutors, while on the other side, the defence had to spend several months
in order to, say, obtain any evidence from the other side, there are obvious
inequalities in all directions.
27. The inequality in terms of the time granted to the defence violates
the defendant’s right to have adequate time to prepare his or her defence.
The defence’s right to a fair trial is often violated by limiting its time for
cross-examination, and then also by depriving it of the adequate time for the
presentation of their evidence. Thus, the prosecution spends vast UN
resources, has unlimited time resources, and a large number of qualified
lawyers, and on the other side, the defendant is given little time for the
preparation and presentation of evidence, scarce and almost demeaning
resources, and limited defence team in terms of the number and
qualifications of personnel, so that it cannot bring the entire burden of more
complex cases on itself.
28. All the above stated is only a part of the irregularities and
inconsistencies in the application of the standards by the ICTY, which makes
a large number of cases, and most often those against the Serb indictees,
illegitimate and unjust. All these facts can be verified through an analysis of
the adopted decisions and the proceedings before the ICTY that would be
done by a qualified expert group within a process that could be organized by
the UN Security Council. Considering the reasonable doubt as to the
fulfilment of the objectives of the establishment of the ICTY, the UN
Security Council should take such a step. It is generally accepted that the
proceedings before the ICTY were not aimed to a large extent at establishing
truth, which may create only additional burdens on the already disturbed
inter-ethnic relations in the territories of the former SFRY. The nations in
this region after all the adversities that the civil war has brought with it, need
the most one thing which still has not been found, and that is the truth.
Without the truth in the territories of the former Yugoslavia, there will be no
reconciliation, and false facts covered in judicial form may cause new
conflicts in the future. A review of the ICTY’s work and the achievement of
Goran Petronijević
153
the purpose for which it was created would surely be directed towards
preventing the emergence of new conflicts, and would be a major
contribution to the creation of conditions for the reconciliation of the peoples
in this region. All in hope that a general effort would be made to review the
ICTY’s work and the purpose of its establishment.
154
INTERNATIONAL CRIMINAL TRIBUNAL FOR…
Marko Novaković M.A.
Institute for International Politics and Economics, Belgrade
INTERNATIONAL CRIMINAL TRIBUNAL FOR
FORMER YUGOSLAVIA – GOTOVINA CASE1
Abstract
Objectively, the analysis the work of the International Criminal
Tribunal for the former Yugoslavia (ICTY) from the perspective of someone
from the former SFRY is certainly not an easy task, and the bias is often an
integral part of such an analysis. One of the reasons for such non-objective
analysis is the use of the data that are of dubious origin or obviously biased.
That is why this paper will discuss only the data provided by the ICTY, in
order to ensure that our analysis and our opinion avoid this stigma. In the
first part of this paper, we will draw attention to some problems relating to
the work of the ICTY, but also the legal background of the problems that are
often interpreted as biasedness of the tribunal, judges, and prosecutors. We
believe that the main problem is the international community as a whole,
which in spite of unlimited financial resources, manpower, etc., has failed to
constitute a tribunal worthy of his task, which, it has to be said, has not been
an easy one. I honestly believe that this opinion is shared by the people in
this region. However, while they see it as non-legal elements, we shall focus
exclusively on the legal weaknesses of this tribunal. Similarly, in the second
part of the paper, we will focus more directly on the judgment in Gotovina
case. Through this judgment, the consequences of all the errors made in the
establishment of the tribunal, which will be mentioned in the first part, can
1
The paper is a part of a scientific and research efforts of the researchers on the project:
“Serbia in Contemporary International Relations: Strategic directions for strengthening the
international position of Serbia in integration processes - foreign policy, international,
economic, legal and security aspects” (Srbija u savremenim međunarodnim
odnosima:Strateški pravci razvoja i učvršćivanja položaja Srbije u međunarodnim
integrativnim procesima – spoljnopolitički, međunarodni, ekonomski, pravni i bezbednosni
aspekti), funded by the Ministry of Science and Technological Development of Republic of
Serbia , Project No. OI179029, and implemented by the Institute for International Politics and
Economics in the period 2011-2014.
155
be seen. As the crucial problem in the reasoning of the Trial Chamber we see
isolated consideration of facts, rather than considering them in their context.
INTRODUCTION
Even during the war in the former SFRY, the Security Council
adopted its Resolution 827, based on its Resolution 813, establishing the
International Criminal Tribunal for the former Yugoslavia (ICTY). 2 In
addition, it specified several objectives, which were formally established, but
which mostly have not been met. Although the ICTY Statute mentions the
role of the Court in the process of reconciliation in the former SFRY, it is
difficult to say that the actions of the Tribunal went in that direction. The
slogan of the Tribunal on its website to this day is “Justice for the victims.” 3
Therefore, here we speak of both law and justice. In respect to law,
weaknesses in terms of the procedure, judicial rulings, and knowledge of the
matter will be discussed in more details below. Before that, we will briefly
consider the concept of justice. Here, this abstract concept, whose
satisfaction is inevitably linked to any trial, assumes a special significance.
Far from it that the stakeholders in the case before the European Court of
Human Rights in Strasbourg did not wish to see that justice is done, at least
in their eyes. However, here, all the participants in the process are, in fact,
the personifications of the ethnic groups they belong to, much more than it is
the case with the states before the International Court of Justice, and
therefore each trial for them represents opening wounds of war on all sides.
The bloody civil war that was fought has left deep consequences. Therefore,
it was necessary to take all the measures to make all individuals and peoples
who carefully follow these trials not feel deceived and injured once again.
We must conclude that the ICTY has not shown due care and attention to
this in their actions, and that that would be so could even be seen from its
establishment, i.e., from the manner in which it was constituted. The main
error is that the concept of justice, which is characteristic of the AngloSaxon law, is based on retribution. Consequently, a priori equating justice
with the conviction, the ICTY has set an impossible task to acquit the leaders
2
3
http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf
www.ICTY.org/homepage
156
of one country, while convicting the leaders of the other country, without
having to inflict suffering and a sense of injustice.
1. JUDGES
1.1 Number of Judges
The Appeals Chamber, which has the most serious task in the ICTY,
and has the power to both rule and give the strength of finality not only
before this tribunal, but also before all potential judicial authorities, consists
of 5 judges. This number is inappropriately low, even for a first-instance trial
body, given the importance of this body, as well as the specificity of the
political situation in which it operates. A small number of judges leads to
many problems in an effort to bring justice and enforce the law. One of the
essential qualities that is required in the selection of judges is their highest
moral qualities. Morality, especially in the context of appointing judges, is a
very abstract concept, and therefore difficult to determine. In this case, as the
centre of morality, we will focus on their independence and the inability to
influence their decisions in any sphere (political, financial, etc.). However,
all evidence of one's morality, even in this particular sense, is indirect.
Consequently, there is a chance for a judge of poor morale, susceptible to
various influences from one or more sides, to slip through this moral
detector. That is why it is necessary that the number of judges is
significantly greater than 5, as it is not the same whether there is 20% or 5%
immoral judges. The fact that the Chamber has a small number of judges
leaves a much wider room for influencing the court’s ruling, and makes it
significantly easier to lobby for judges to pass a specific ruling. It is
completely incomprehensible why such an important body has been
established on such a narrow basis, when this is not the case in the national
judicial systems or in other European international judicial bodies. The
Grand Chamber of the European Court of Human Rights, which deals
directly with the interests of individuals, although its indirect role has
significantly broader effects, consists of 17 judges.4 The Chamber of the
International Court consists of at least 9 judges, but it is common that the
number of judges is considerably higher. In addition, the judges of the
4
http://www.echr.coe.int/ECHR/EN/Header/The+Court/The+Court/The+Grand+Chamber/
157
chambers always come from the countries involved in the respective dispute
(either as permanent or ad hoc judges), and therefore the introduction into
the subject is considerably easier. The Grand Chamber of the European
Court has 15 judges. A large judicial body allows for a more fruitful
discussion, a more detailed investigation of all matters, both procedural and
merits, and generally speaking, a more thorough analysis of all aspects of the
case, and thus reduces the possibility for illogical and biased judgments to
see the light of day.
Gotovina case has rightly shown another reason why it is necessary to
have a larger number of judges, and what absurdities can result from such
pitifully small chambers. Since there were two separate opinions, and two
dissenting opinions, there was a paradoxical situation that 5 different
opinions brought one “majority” judgement.
The size of the Chamber is more a precaution than a measure that
directly affects the fairness of the trial. However, in cases before the ICTY,
it was necessary to invest greater efforts and not leave any aspect
unregulated, no matter how insignificant it appeared. This additional caution
is necessary not only because of the increased sensitivity of the public due to
the nature of the crime, but also because the ICTY’s judgements are final.
The states of the former SRFY accept the ICTY’s judgments as final, and
have no legal mechanisms to initiate a re-assessment of liability before
another court, both national and international. Therefore, if we assume that
the tribunal made a wrong decision, as an international authority, it cannot
be expected in any way that their error will be corrected, and that is why
every little detail that is omitted is too great a failure.
1.2 Knowledge of SFRY War and History
The first-hand knowledge of the matter one deals with is crucial in any
line of work. The importance of knowledge, in order to see the things
correctly, is even greater when deciding on someone’s life and death. The
fact that the judges who adjudicate in the ICTY, in most cases, are people
who have not intensively engaged in international criminal law, and even
international public law, during their careers is itself debatable. However,
when you add the fact that their knowledge of war and the state of war is
very limited, the problem becomes even more serious. In some things, the
difference between theory and practice is significantly greater than in others.
158
Dealing with an abstract matter, such as the difference between the
presidential and parliamentary arrangements, is not the same as dealing with
war, which is a very tangible condition, and can completely change the
perceptions of the participants. That is why the fact that the judges did not
have the first-hand understanding of the state of war, or did not have enough
understanding to bridge the gap between ordinary people, who have
experienced the horrors of war, and their views on the war, or more
importantly, their changed views as a result of the war, is still a major
objection. This could be best seen during the cross-examination, when the
judges with their well-meaning interventions often only further confused the
witnesses.
We can argue that the judges and the tribunal as a whole have invested
considerable efforts to get familiar with the details of the relationship
between the peoples of the former SFRY. However, they did not succeed to
get fully acquainted with the factual situation, and especially the historical
development of these relations. Although it is not a small undertaking to
penetrate into the details of these relationships, there is no excuse for their
failing to do so. It requires extensive knowledge of history, including the
history of every ethnic group in particular, from multiple sources, a detailed
insight into the situation in the field, and so on. Such extensive and through
analysis requires considerable time and great intellectual capacities, as
generally, before the trials, the judges had practically no contact with the
countries of the former SFRY. However, their administrative services, the
documents that were available to them, and big pay checks they received,
give us the right not only to expect that they fulfil this task, but to insist on it.
1.3 Topography and Geographical Locations
Most judges have never visited the places in which the crimes they
adjudicated took place. While this may seem irrelevant, ask yourself how
many times you heard something about a place, and then when you go there,
you realise that this is not how you imagined it at all. The problem is that the
judges on very rare occasion visited the places they adjudicated about. The
first-hand understanding of the relations, the size of towns, proportions, the
terrain configuration itself, can play a key role in understanding the events in
the field. According to some information, the ICTY judges visited the places
thy adjudicated about only once. This is completely unacceptable as there is
159
no justification for it, neither financial nor in terms of security concerns, for
such a small, almost nonexistent number of visits.
2. ICTY’S ADVERSARIAL SYSTEM
Adversarial procedure is a two party procedure in which the court has
no obligation, and even, in the most extreme model, no right, to consider a
case on its own and determine the criminal responsibility of the accused.5 It
is characteristic for the Anglo-Saxon legal jurisdictions. On the other hand,
inquisitorial procedure is a procedure in which despite extensive
presentations by the defendant and defence counsel, regardless of the agility
of the prosecutor and the defence, and regardless of the quality of
communication achieved in the courtroom in the respective case, the court
has the ability, but also the obligation to determine the true grounds that
would, in accordance with the provisions of the current criminal law, inform
the criminal sanction.6 The ICTY applies a sort of a mixed adversarial
procedure. Its Anglo-Saxon foundation is reflected, for example, in the
appeal procedure, in which the Appeals Chamber does not examine the
factual situation, but only the legal aspects of the judgment. It is mixed in so
much that it does not include the jury of peers in the first instance that is
common to the Anglo-Saxon systems, and that even in the first instance the
decisions are made by professional judges (the Trial Chamber). The rationale
for this change surely needs no clarification. However, the overall system of
the mixed adversarial procedure that has been applied by the ICTY appears
to be a little chaotic, and has often left both the judges and the prosecutors
confused and ambiguous.
What is in our opinion the main problem of the adversarial system
applied by the ICTY? Primarily the fact that people from the former SFRY,
and they are the ones who will be on trial, and also the ones who are most
directly interested in the trials, are not familiar with this system. When one
talks about familiarity, one refers primarily to the understanding of the
system in which the trial functions, the roles of the judges, prosecutors, legal
5
Breneselović L, Novaković M. O osnovnoj postavci Nacrta Zakonika o krivičnom postupku
za Republiku Srbiju, 14 September 2010. Revija za kriminologiju i krivično pravo
2010;48(2):191-225.
6
Ibid.
160
advisers, counsel, defendants, etc. That has led also to the defence being
designed in a way in which it would be done if a trial was held before a
national court, and similarly to the public watching the course of the trial
through the prism of the continental system trials.
It can be noted that the creators of this mixed system realised that the
clean adversarial system would not be suitable for a court whose target
group is the peoples of the former SFRY. However, we have to conclude
with regret that the creators either failed to identify the real reasons why this
system was unfit to serve its purpose or failed to adjust the system to that
purpose. In fact, the people of the former SFRY do not have any
understanding of one of the main characteristics of the adversarial system,
which remained unchanged also in the procedure applied by the ICTY, and
which relates to the different roles of the prosecutor and the judge.
3.1 Roles of Prosecutors and Judges
The role of the prosecutor is the most obvious, if not the major,
difference in terms of the procedural roles between these two systems. The
role of the prosecutor in the adversarial system is subject to a strict division
of roles. The ideal of truth is something that is present as an obligation,
larger than the defence or indictment. If the prosecutor is not obliged to
respect the ideal of truth, collecting also potentially exculpatory evidence,
and if the prosecutor conceals evidence and prepares witnesses to testify as it
has always been done in the USA, is it not obvious that the outcome of such
trial will never be accepted as fair in the jurisdictions with the GermanAustrian legal tradition? If the judges remain silent in their benches, is it not
obvious that people from Serbia and Bosnia would see it as a sign that the
verdict has already been made?
The issue of witnesses is extremely a sensitive one. If the witness
comes from a country where there is no prosecution or defence case
presentation, where he or she acts only as a witness for the court - then it is
quite normal and expected that the witness will not be able to remain
objective in his or her role of a witness for the defence or the prosecution.
He or she is anthropologically (culturally) unaccustomed to that role.
The fact that the prosecutor “proofs” witnesses is particularly
inappropriate and contrary to the very notion of being “a witness of truth,”
161
which is common in the continental law. Consequently, the witnesses called
by the prosecution are not supposed to tell the truth, but to tell that which
was agreed with the prosecution and, most problematic of all, conceal
anything that could jeopardise the indictment. Here, witnesses were often not
only “proofed” to avoid mentioning certain things, but they themselves also
acknowledged that they signed the statements that were prepared by the
prosecution, which is completely unacceptable even in the USA and, in the
eyes of people from the continental law, scandalous.
GOTOVINA CASE
Every new appearance of the accused before the ICTY re-agitates the
public in the former SFRY states. The public in all of the countries closely
monitors everything that goes on in and around the courtrooms. That is why
all the shortcomings that we mentioned in the previous section have led to
the increased tensions regardless of the verdict. More specifically, if the
accused is acquitted, the public in the state against whose nationals he or she
allegedly committed crimes would construe it as if the court protected the
criminals from the “other” side. Similarly, if the accused is convicted, the
public in the state whose national he or she is will perceive it as a campaign
against themselves. But let us go back to the field of law, and put aside for a
moment the socio-political aspects of these judgments. The judges’
reasoning is often very disputable, and they have a unique interpretation of
both the procedural rules and the merits of the case. One such case is
undoubtedly the case against Ante Gotovina and Mladen Markac
(hereinafter: Gotovina case).
3. REVIEW OF THE TRIAL JUDGEMENT
The Appeals Chamber made two errors in reviewing the trial
judgement that related to: 1. the scope of review of the judgement passed by
the Trial Chamber, and 2. the method of review.
162
3.1 Scope of Review of the Trial Judgement
The first procedural oversight of the Chamber, which was evident in
the separate opinions by Judge Agius7 and Judge Pocar,8 relates to the scope
of the review of the trial judgement. In fact, we have already stated that the
ICTY applied a sort of a mixed adversarial system, which is in principle the
Anglo-Saxon system. Thus, we can argue that this is an Anglo-Saxon system
with some elements of the continental system. In a pure Anglo-Saxon
system, the appeals authority does not enter into consideration of the factual
findings of the first-instance trial chamber. There are many reasons for that,
and one of them is the fact that the first-instance trial authority has had much
more time to establish the facts, and also much more resources at hand to
come to the correct conclusions. In this way, logically, it is considered that
the authority that had access, and it has to be underlined immediate access,
to all that information is more competent to adjudicate it. Whether that court
has made a proper decision is considered by the appeals authority.
However, exactly because the ICTY applies the mixed system, and
because it is a tribunal that works differently and has a very specific role,
that scope of the review of the trial judgement is quite flexible. That is
exactly why Article 25 of the ICTY Statute leaves a broad room for the
review of the judgments passed by the Trial Chamber.9 It leaves the
possibility to identify both errors in the application of law and errors in
identifying the factual situation. 10 However, light discarding of the facts
established by the Trial Chamber cannot be in any respect justified,
especially if it was done as in Gotovina case, meaning
4. Without a detailed analysis of the error, but only concluding
that an error was made.
5. Replacing the Trial Chamber’s findings with the opinions
and reasoning of the Appeals Chamber.
7
Dissenting opinion of Judge Carmel Agius, Paras. 2-4.
Dissenting opinion of Judge Fausto Pocar, Paras. 9-14.
9
ICTY Statute.
10
Ibid.
8
3.2
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Methods for Review of the Judgement
The main problem is not that the Appeals Chamber reviewed the trial
judgment as was observed by judges Agious and Pocar. If that had been
done properly, we would be able to argue that the judges of the Appeals
Chamber did not exceed the scope of the review of the trial judgement, as it
is, by itself, a variable. However, the problem is that they only rejected the
allegations of the Trial Chamber, without going any further. If the judges
had already found it necessary to enter into the consideration of the Trial
Chamber’s findings, they should have found it necessary to do so in a proper
manner. Therefore, the judges reduced the review to rejecting the Trial
Chamber’s findings without justification or affirming them, without going
into any further consideration. With such a review of the judgment, the
tribunal created a gap in the reasoning of the Trial Chamber. Their task
could not stop at rejecting the 200 Metre Standard. On the contrary, that was
only the beginning. The Tribunal exceeded the scope of review of the trial
judgment by analysing and rejecting the 200 Metre Standard. Once it
exceeded that line, in the interest of justice and to complete the analysis, it
must have given its opinion and not de facto delete the evidence of the Trial
Chamber.
4. 200 METRE STANDARD
First of all, we have to draw attention to one error of the prosecution,
which has no rational explanation. In the indictment, Gotovina was not
charged under Article 52, Para. 1, for attacks on civilian targets, but only
under Article 51, Para. 2.11 It is much easier to prove attacks on civilian
targets, exactly because it minimises the room for legal manoeuvres that was
left in the indictment pursuant to Article 51 (2). We see no reason why the
charges pursuant to that Article were not included in the indictment. This
would avoid having to identify the standard for the legitimacy of the attack,
and that legitimacy could be identified is a much easier way.
11
http://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17512English.pdf - Geneva Convention
164
4.1 What is 200 Metre Standard?
It was found that during the shelling of Knin out of 900 missiles, 50
ended up in the locations that were 300 to 700 metres away from the nearest
target from the list of targets of the Croatian Army. The Trial Chamber
found that every missile that fell more than 200 metres away a target
specified in the list of artillery targets of the Croatian Army was an evidence
of indiscriminate attacks, i.e., that is was directed onto illegitimate, civilian
targets. This standard was certainly established considering the terrain
configuration, as well as the type of artillery that was used, and statements
by witnesses - Harry Konnings and Geoffrey Corn, and many others.
4.2 Its Establishment
We believe that in the course of the debate on the viability of the 200
Metres Standard, its nature, i.e., role was forgotten. The standard does not
serve to establish definitively that all the missiles out of the 200 metre radius
are illegitimate, and vice versa, but rather to provide a realistic and an
approximate picture of the degree of legitimacy of the attack in this case. To
avoid having to establish the legitimacy of each missile separately, the
standard was introduced. Therefore, there were probably missiles that fell
out of the 200 metre radius as a result of targeting legitimate targets, and
similarly there were probably missiles within that radius that were not
legitimate. The question is how the Appeals Chamber could establish
whether the 200 Metre Standard was adequate or not. In his dissenting
opinion, Judge Agius stated, “In this case, the Majority has not identified
any error of law “arising from the application of an incorrect legal
standard”. It has simply identified an error of law in the Trial Chamber’s
failure to provide a reasoned opinion, and such a failure is clearly not an
error of law arising from the application of an incorrect legal standard.
Thus, as I see it, without identifying any other error arising from the
application of an incorrect legal standard.12 Therefore, in accordance with
Article 25 of the ICTY Statute, the Appeals Chamber can identify an
application of incorrect legal standard, or incorrectly identified facts. In this
case, the Chamber rejected the Trial Chamber’s findings on the grounds of
12
Dissenting opinion of Judge Carmel Agius, Para. 9, Gotovina Case.
165
inter alia the 200 Metre Standard, simply noting, “…However, the Trial
Chamber adopted a margin of error that was not linked to any evidence it
received; this constituted an error on the part of the Trial Chamber. The
Trial Chamber also provided no explanation as to the basis for the margin of
error it adopted;13 The Prosecution suggests that the Trial Chamber created
the 200 Metre Standard as a maximum possible range of error based on the
evidence before it. However, the Trial Chamber did not justify the 200 Metre
Standard on this basis. In addition, absent any specific reasoning as to the
derivation of this margin of error, there is no obvious relationship between
the evidence received and the 200 Metre Standard. There are two problems
in this procedure by the Appeals Chamber. The first is, as Judge Agius
noted, the fact that the Appeals Chamber failed to provide the reasons for
rejecting the 200 Metre Standard, and simply stated that the Trial Chamber
failed to show on what basis the 200 Metre Standard was adopted. This “lack
of explanation” was sanctioned by the Appeals Chamber with a rejection of
the standard. On the other hand, Judge Pocar believes that, “… the Majority
is simply not entitled to conduct a de novo review of the evidence on the
basis of the Trial Chamber’s failure to provide a reasoned opinion.14 As we
have already stated, the problem lies a few steps further. Therefore, just by
considering the 200 Metre Standard, the Appeals Chamber acted contrary to
the spirit of the procedure. As we have already noted, the Chamber is not in
any way prohibited to do so. The real problem lies in the fact that the
Appeals Chamber only rejected the 200 Metre Standard without any further
analysis of the problem, and without proposing a new standard, or method
for the establishment of legitimacy. Thus, if the Appeals Chamber found it
necessary, in spite of all the principles underlying the Anglo-Saxon system
that the ICTY is based on, to enter into a consideration of the facts
established by the Trial Chamber, that can be interpreted only that the
Chamber realised that there was a fundamental error of such importance that
it had to intervene even in that restricted zone of the review of the trial
judgement. It failed to achieve the task that it assigned to itself. That is, if we
assume that their opinion on the legitimacy of the attack replaces the 200
Metre Standard, we could argue that they did achieve the task, but also that
their opinion and its consequences had nothing to do with law.
13
14
Appeals Court Judgment, Para 61.
Ibid.
166
By rejecting the 200 Metre Standard, the Appeals Chamber also
rejected the theory of illegitimate attacks. In has to be noted that Trial
Chamber did not at any point directly link the two elements, or marked the
200 Metre Standard as the crucial evidence for the illegitimacy of the
attacks. That was only one in a series of evidence through which it attempted
describe the legitimacy of the attack on Knin. In addition to that, a large
body of evidence, witness statements, expert statements, etc., were
presented. Although witness statements made an important part of the
justification of the decision on the illegitimate attack, dozens of both witness
statements and expert statements were not taken into consideration. The
Appeals Chamber emphasised that cautiously, noting that many witnesses
had little artillery training, may have had trouble assessing artillery impacts
while under fire, and may have mistaken shelling outside of Knin for shelling
inside the town.15
Even in chronological order, in the judgment of the Trial Chamber, the
200 Metre Standard is mentioned after an extensive presentation of
testimonies, and therefore it is unclear why the Appeals Chamber passed
over it so lightly.16 Exactly this fact - that there was other evidence of the
illegitimacy of the attack, inter alia forced Judge Agius to separate his
opinion.17
Let us also draw attention to the mere fact that the whole town was
designated as a military target, which clearly indicates the indiscriminate
nature of the attacks,18 i.e., if not deliberate targeting of civilians, then a
failure to take sufficient measures to prevent their killings. 19
4.3 Importance of Knin Attack Legitimacy
By establishing that the attacks on Knin were not illegitimate, the
Appeals Chamber also rejected the existence of JCE. That was exactly what
Gotovina argued – “Finally, both of the Appellants contend that, absent a
15
Appeal Judgement, Para. 75.
16
Trial Judgment
Dissenting opinion of Judge Carmel Agius, Para. 4.
18
Trial Judgement, Para. 2305.
19
Ibid.
17
167
finding that unlawful artillery attacks took place, it is not possible to uphold
the Trial Chamber’s findings regarding the JCE. Gotovina asserts that the
Trial Chamber specifically found that the JCE aimed to deport Serb civilians
through unlawful artillery attacks, and that reversal of the Trial Chamber’s
findings concerning unlawful attacks would negate the actus reus of the
JCE.“20 But, was that really so, or whether qualifying the attack on Knin as
legitimate would negate actus reus. Here, Gotovina’s defence attempted to
link the legitimacy of the attack on Knin with actus reus. 21 They did that by
noting, “The allegations in the Amended Joinder Indictment are limited
strictly to the shelling of civilians and “civilian areas.” There is no
allegation (and thus no notice) of shelling of legitimate military objectives as
a factor relevant to the deportation charge,22 citing Paragraphs 28, 34, and
48, Amended Joinder Indictment, 12 March 2008, but leaving out the
Paragraph that states, “From at least July 1995 to about 30 September 1995,
Ante Gotovina, Ivan Cermak and Mladen Markac, acting individually and/or
through their participation in the joint criminal enterprise, planned,
instigated, ordered, committed, and/or aided and abetted the planning,
preparation and/or execution of the forcible transfer and/or deportation of
members of the Krajina Serb population from the southern portion of the
Krajina region to the SFRY, Bosnia and Herzegovina and/or other parts of
Croatia, by the threat and/or commission of violent and intimidating acts
(including the plunder and destruction of property), the effect of which was
to displace, transfer or deport the Krajina Serbs from the area (including
causing them to flee or leave the area) and/or to prevent or discourage them
from returning to the area, including in the following municipalities or parts
thereof: Benkovac, Civljane, Donji Lapac, Dmis, Ervenik, Gracac, Kistanje,
Knin, Liliane Ostrovicke,Lisicic, Nadvoda, Obrovac, Oklaj, and Orlic, By
these acts and 0In!ssions (including those alleged in paragraphs 12-20 and
27-47). Ante GOTOVINA, Ivan CERMAK and Mladen MARKAC are
responsible for the following crime(s): Count 2: deportation, a CRIME
AGAINST HUMANITY, punishable under Statute Articles 5(d), 7(1) and
7(3).Count 3: inhumane acts (forcible transfer), a CRIME AGAINST
20
Appeal Court Judgment, Para 36.
Therefore, much before than the Appeals Chamber did, author’s intervention.
22
Ante Gotovina’s Supplemental Brief Pursuant To The Oral Order Of The Appeals Chamber
Of 14.May 2012, Para 5.
21
168
HUMANITY, punishable under Statute Articles 5(i), 7(1) and 7(3).”23 Here,
it is clearly stated that they did so through threats and/or commission of
violent and intimidating acts.24 Threat and/or commission of violent and
intimidating acts to prevent or discourage them from returning to the area is
exactly what makes it possible for the procedure to be conducted even if the
legitimacy of the attack on Knin is established. The threat of attacks is not
limited to civilian or military targets, and that is why we are of the opinion
that this claim by the defence is simply untrue, and that their request is
unjustified, as what they stated in not stated in the indictment, i.e., the
indictment states exactly what they argue does not exist. However, the
Appeals Chamber granted the desire of defence to directly link JCE to the
legitimacy of the attack on Knin, and by doing that it adopted, in fact, the
interpretation of the indictment by the defence, instead of the indictment
itself.
The notion of fear was not included in the indictment without a
reason, as the Brioni Transcripts show that fear and confusion were created
not only by the attacks on Knin, but also by other, more sophisticated tools,
such as throwing leaflets to cause disarray. 25 We will add to this only the
definition of the forced deportation, which was provided by tribunal itself The term “forced”, when used in reference to the crime of deportation, is not
to be limited to physical force but includes the threat of force or coercion,
such as that caused by fear of violence, duress, detention, psychological
oppression or abuse of power against persons, or by taking advantage of a
coercive environment.26 27
Finally, one has to come to the obvious question why the Serbs then
fled Knin. One answer is that they left alone, and the other one is that they
23
Corrected Corrigendum to Prosecution’s Notice of Filing of Amended Joinder Indictment,
Para 49.
24
Ibid.
25
Thus, one leaflet means general disarray, the victory of Croatia with the support of the
world, etc., Serbs, you are already leaving, etc., and we tell you there is no need to leave, we
guarantee you... So in that way, to give them a road, while ostensibly guaranteeing them civil
rights, etc., the Brioni Transcripts
26
The Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Appeals Chamber, Judgement, 22
March 2006, Para. 281
27
Krajišnik Momčilo Appeal, 17/03/2009, Paras. 304, 308-309, 319
169
were expelled. There is no third explanation. If the Appeals Chamber found
that the shelling of Knin was legitimate, does that exclude the possibility that
that was the reason why the Serbs fled Knin? You will agree that this is not
so. It cannot be assumed that the illegitimacy of the attack on Knin is the
proof that the Serbs were expelled, and that automatically legitimising of the
attack is an indication that the Serbs left their homes on their own. As for the
orders to the Serb authorities for the Serbs to withdraw, even during the trial
it was argued that the Serbs started withdrawing even before this order was
issued, immediately after the onset of the attack on Knin. Thus, if it is
determined that the attack on Knin was legitimate, what was the reason for
the Serbs to go into displacement. We will reiterate that the Appeals
Chamber responded that such movement, “can be interpreted, absent the
context of unlawful artillery attacks, as inconclusive with respect to the
existence of a JCE, reflecting, for example, a lawful consensus on helping
civilians temporarily depart from an area of conflict for reasons including
legitimate military advantage and casualty reduction.”28 If JCE is taken out
of the context, maybe it would be possible to interpret it in that way.
Therefore, that the Croatian Army, in fact, did not wish to expel the Serbs,
but only to relocate them temporarily, in order to reduce civilian casualties.
However, shortly after the Serbs were displaced, Croatia enacted
discriminatory laws that prevented the return of the Serbs. On the other
hand, in the years after the war, there were hardly any Serbs in Knin, their
return was negligible, and Croatia was frequently criticized for a slow return
of refugees. Therefore, the Serbs were not able to return neither legally, nor
factually, so that the theory of the temporary departure makes no sense in
reality. This is an obvious example how pronounced the particularity of the
Chamber was, and how the big picture was lost, and replaced by considering
each of the events in the series as isolated incidents.
5. JOINT CRIMINAL ENTERPRISE – JCE
Considering isolated facts regardless of the context has already been
seen in the case of the 200 Metre Standard. Something similar occurred also
in the consideration of JCE, where it is particularly evident. First of all, we
must note that in the very name of this crime – joint criminal enterprise – an
28
Appeals Court Judgment, Para. 93
170
integral part is that of an extended action, which is by itself comprised of
several elements. An “enterprise” means a systematic, targeted activity.29
That is exactly why we believe that JCE as a crime must be regarded as a
series of correlated events. It is exactly a series of individual acts brought
into correlation what makes a joint criminal enterprise. If viewed in
isolation, they certainly cannot constitute alone JCE, and sometimes if they
are viewed isolated they can become completely pointless, or have a
completely different meaning. Chronologically, over a very short span of
time, Franjo Tudjman gave his speech at Brioni about the necessity of
removal of the Serb population from Croatia, followed by the military
actions that directly resulted in the expulsion of a large number of Serbs (and
not Croats, therefore selectively and precisely as agreed at Brioni), with
accompanying atrocities against the Serbs, and finally other discriminatory
measures were introduced preventing the return of the Serbs.
As we have shown, the Appeals Chamber, citing rather questionable
reasons, dismissed the conclusion of the Trial Chamber that the attacks on
Knin were illegitimate. However, on top of the fact that it rejected
illegitimacy of the attacks, it added the consequence that JCE did not exist
either. In this case, the Trial Chamber has taken one step further in the
reconsideration of facts, as the Trial Chamber did not at any point link the
existence of JCE with the legitimacy of the attack on Knin.30 Proving that
connection cannot be conditional on the legitimacy or illegitimacy of the
attacks. It is unbelievable that this sequence of events, in a state of war, can
be viewed as a series of unconnected events. As,“In this context, no
reasonable trial chamber could conclude that the only reasonable
interpretation of the circumstantial evidence on the record was the existence
of a JCE with the common purpose of permanently removing the Serb
civilian population from the Krajina by force or threat of force.”31 We can
ask what other interpretation is possible if it is considered that the attacks on
Knin were legitimate. The Appeals Chamber gives a very interesting
explanation, “Considered outside this context, it was not reasonable to find
that the only possible interpretation of the Brioni Transcript involved a JCE
to forcibly deport Serb civilians. Portions of the Brioni Transcript deemed
29
A systematic purposeful activity - http://www.merriam-webster.com/dictionary/enterprise
Trial Judgement, Part 6.2, pp. 992-1177
31
Trial Judgment, Para. 96
30
171
incriminating by the Trial Chamber can be interpreted, absent the context of
unlawful artillery attacks, as inconclusive with respect to the existence of a
JCE, reflecting, for example, a lawful consensus on helping civilians
temporarily depart from an area of conflict for reasons including legitimate
military advantage and casualty reduction. Thus discussion of pretexts for
artillery attacks, of potential civilian departures, and of provision of exit
corridors could be reasonably interpreted as referring to lawful combat
operations and public relations efforts.Other parts of the Brioni Transcript,
such as Gotovina’s claim that his troops could destroy the town of Knin,
could be reasonably construed as using shorthand to describe the military
forces stationed in an area, or intending to demonstrate potential military
power in the context of planning a military operation.32 We believe the
Chamber in their judgment did not give sufficient weight to many facts that
were obvious from the documents, witness statements, and transcripts.
The Appeals Chamber in Item 95 states, “The fact that Croatia
adopted discriminatory measures after the departures of Serb civilians from
the Krajina does not demonstrate that these departures were forced. The
Appeals Chamber also observes in this regard that the Trial Chamber did
not find that Gotovina and Markač played a role in creating or supporting
Croatia’s discriminatory efforts in the Krajina.”33 Both the first claim - that
the adoption of discriminatory measures does not show that the departures of
the Serbs were forced, and the second claim - that Gotovina and Markac did
not play a role in creating these measures are true, if they are considered in
isolation. But if we consider the other aspects, these statements appear to be
completely pointless.
6. BRIONI TRANSCRIPTS
The problem that is particularly acute in perceiving JCE as a whole,
i.e., in failure of the Appeals Chamber to perceive JCE as a whole, was
present also in the very analysis of the Brioni Transcripts. This stubborn
refusal to look at the whole picture and view the facts together in the overall
context is best described in the Chamber’s comment regarding the Brioni
32
33
Trial Judgment, Para. 93
Trial Judgment, Para 95
172
Transcripts: „However, the Brioni Transcript includes no evidence that
an explicit order was given to commence unlawful attacks and
Gotovina’s statement regarding a strike on Knin could be interpreted
as a description of HV capabilities rather than its aims, especially in
the context of general planning for Operation Storm which took place
at the Brioni Meeting.” 34
6.1 “Ostensibly” Guaranteed Civil Rights
In the Brioni Transcripts, which are quite long, one sentence by Franjo
Tudjman is particularly singled out, “So in that way, to give them a road,
while ostensibly [“tobože”] guaranteeing them civil rights, etc.“ 35 In its
commentary to this sentence, the Appeals Chamber states, “In fact, it is very
hard to understand what President Tudjman is referring to when he speaks
of “guaranteeing civil rights”. What “civil rights”? It is surely vital, to
make any sense of what he said, to understand which “civil rights” were
“ostensibly” to be guaranteed. There is, however, no indication whatsoever
of what it means in the transcript.” 36
We can ask ourselves how it would change our perception if we knew
exactly which human rights would be “ostensibly guaranteed.” But, even
notwithstanding that, this conclusion of the Appeals Chamber is incorrect. It
is stated – “Serbs, you are already leaving, etc., and we tell you there is no
need to leave, we guarantee you... So in that way, to give them a road, while
ostensibly guaranteeing them civil rights, etc.” Why did the Appeals
Chamber not consider the possibility that this “ostensibly” refers to the
guarantee rather than to civil rights? Firstly, it is entirely possible
semantically and it is in the spirit of the language, and a comma put in
37
another place would completely change its meaning. That “ostensibly”
refers to the guarantee rather than to civil rights is logical as the
consequences could be easily added to that sentence, while in the first case,
34
Appeals Court Judgment, Case No. IT-06-90-A, page 28, para 81.
http://www.icty.org/x/cases/gotovina/custom6/en/111005_markac.pdf
36
Ibid
37
One must not forget that these are transcripts, and that here the interpreter decided what
Tudjman meant to say, author’s intervention.
35
173
this statement has much less sense. Therefore, it would be immaterial what
rights he had in mind, as there was certainly no real intention to guarantee
them.
Judge Agius, in his comment of the Brioni Transcripts, mentioned the
difference between credibility and truthfulness, to which we will add our
comment. As the credibility of the transcripts was not contested, it remains
to be seen to what extent the speech is true. In that case, if one considers the
plans that were made, and the final outcome, they fully coincide. Thus,
everything that had been agreed was achieved, the big picture is clear. Even
if we were to accept everything that the Appeals Chamber rejected in the
trial judgement, the fact that the Serbs are “missing” from the Knin region
exactly as it had been described in this meeting, remains. How is it then
possible to contest JCE, i.e., intention?
CONCLUSION
The questionable judgment in Gotovina case is merely the
consequence of the errors made by the international community during the
creation of the Tribunal, and during its existence. It is unbelievable that the
international community, embodied in many international organisations, as
well as the association of the individual states, which has unlimited
resources,38 information and personnel, allows for a tribunal with so many
weaknesses to be created.
Finally, we should draw attention also to the possibility of review.
The possibility of review is provided for in Article 119 Rules of Procedure
and Evidence.39 A request for review has so far been approved only once, in
the case of Sljivancanin.40 The request for review in that case was initiated
by the defence, citing the witness testimony of the retired JNA officer
Miodrag Panić.41 In the case of Gotovina the review is possible, but it has to
38
The fact that many states such as the UK refused to fund the ICTY for years does not lessen
the financial potentials of the UK or the rest of the international community, author’s
intervention
39
http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev48_en.pdf
40
Case “VUKOVAR HOSPITAL” (IT-95-13/1)
41
Ibid.
174
be initiated by the prosecution. However, it is not realistic to expect that such
a thing will happen, as new crucial evidence is hard to find, especially
considering the great level of mistrust showed by the Appeals Chamber in
relation to witness statements.
REFERENCES:
Breneselović L, Novaković M. O osnovnoj postavci Nacrta
Zakonika o krivičnom postupku za Republiku Srbiju, 14 September
2010, Revija za kriminologiju i krivično pravo 2010;48(2):191-225.
Appeals Court Judgment, Case No. IT-06-90-A
Trial Judgment, Case No. IT-06-90-A
Ante Gotovina’s Supplemental Brief Pursuant To The Oral
Order Of The Appeals Chamber Of 14 May 2012
The Geneva Convention
The Prosecutor v. Milomir Stakić, Case No. IT-97-24-T,
Appeals Chamber, Judgement, 22 March 2006
ICTY Statute
ICTY Rules of Procedure and Evidence
Jovan Ćirić, PhD
175
Jovan Ćirić, PhD
Institute for Comparative Law,
Belgrade
WOULD THERE BE A TRUE RECONCILIATION IN
THE TERRITORIES OF THE FORMER
YUGOSLAVIA AFTER “THE HAGUE”?
In this paper, the author analyses, i.e., attempts to answer the
question: weather and to what extent the trials before the ICTY would
contribute to overcoming the tragic events of the 1990s in the territory of
Bosnia and Croatia. The author argues that the judgements pronounced by
the ICTY will not contribute in any way to the establishment of peace and
truth and reconciliation. There are several reasons for reaching such
conclusion. There is a downright disproportion between the numbers of the
highest-ranking military officials and political leaders belonging to specific
ethnic groups who are convicted (indicted). While all four Serb presidents
were indicted, none of the Croat or Bosniac high officials has ever been
indicted, which generates the feeling of injustice, biasedness, and partiality
on one side, the Serbs. The ICTY and its prosecutors have failed to respond
at all to the serious indications of atrocious crimes that had occurred in
Kosovo, which relate to trafficking in human organs. After she left the
prosecutor’s post, Carla Del Ponte stated that such investigation was
obstructed by NATO, and Dick Marti, the Swiss parliamentarian in the
Parliamentary Assembly of the Council of Europe, submitted a fully
documented report, but the ICTY remained silent. In addition, the ICTY
prosecutors have never indicted anyone for launching a war of aggression in
the territories of the former SFRY, which was a precondition for all
subsequent crimes. In the work of the ICTY, i.e., in all the events that
occurred during the armed conflicts in the territory of the former SFRY,
there was a great deal of the media manipulations. With that in mind, it has
to be said that the ICTY had an ambition to put history on trial in its
judgements as well, which is an absurdity par excellence inter alia because
in order for the truth to be established many years need to pass, many
archives need to be opened, and many people need to open up to speak. Here
one has to mention another problem that is evident in the work of the ICTY
176
WOULD THERE BE A TRUE…
that relates to the presumption of innocence, i.e., presumption of guilt. First
the media manipulates or at least exaggerates a case, and then someone gets
indicted for that event. In such circumstances one can hardly speak of
presumption of innocence. Naturally the statistics of the numbers of the
indicted and convicted before the ICTY are a particular story. Although the
official UN expert submitted to the ICTY his findings and opinion, indicating
that there were no material disproportions in the numbers of war casualties,
the number of the indicted and particularly the number of those convicted
for crimes committed against the Serbs are exceptionally low. Practically no
one has been pronounced a final conviction for crimes committed against the
Serbs, except in one case in Bosnia and one in Kosovo, which proves that
David Harland was right when he wrote in the New York Times in December
2012: “Too bad if you were a Serb victim of any crime in the former
Yugoslavia.” Jovan Ćirić argues that all that will not contribute in any way
to establishing the truth and to the actual reconciliation in the territories of
the former SFRY. Such judgments of the ICTY inspire exaltation and
triumphalism among the Croats and the Bosniacs, threatening to reemerge
in the future, and frustration and depression among the Serbs, which could
one day turn into revenge.
Descriptors: The ICTY; history on trial; partiality; statistics;
frustrations in Serbia; truth and reconciliation;
In the title of this paper we use the phrase “true reconciliation”,
which should not be confused with the phrase “truth and reconciliation”,
characteristic for the transitional justice.1 However, it has to be said that even
if it is based on truth and truthful facts, reconciliation may be false,
insincere, and hypocritical. That is even more true if we did not succeed in
establishing the real and complete truth before the reconciliation. It appears
that “The Hague Trials” will not succeed in establishing the real and
1
The term “transitional justice” refers to the set of judicial and quasi-judicial measures
implemented in the post-conflict societies, societies that were characterised by various forms
of religious, ideological, war and other violence and breaches of the fundamental human
rights. The negative aspects of transitional justice include inter alia: a winners’ justice;
pronounced retroactivity; pronounced selectiveness. For further details on these subjects see:
http://plato.stanford.edu/entities/justice.transitional
Jovan Ćirić, PhD
177
complete truth to the most part, and the reconciliation will be forced and
insincere.
It can be argued that truth does not necessarily have to lead to
reconciliation, although it is correct to say that any reconciliation that is not
based on truth, but on deception, is usually not long-lasting. But if the truth
that has been established is very painful, then one can truly question weather
there would be a true reconciliation, rather than a false and hypocritical one.2
With that in mind, one needs to mention also the provisions of the
Peace of Westphalia from 17th century, which prohibited mutual accusations
of guilt, as well as calls for revenge with that respect.3 Therefore, it is
disputable weather a constant reminder of the past war atrocities can lead to
reconciliation, i.e., in order to allow for reconciliation it is important for
individuals, i.e., social groups not to be constantly reminded of some painful
and traumatic events from the past, which was indeed characteristic for the
territories of the former SFRY, where one or other ethnic group always
recalled their difficult and painful past, the past events from the World War I
or the World War II.4 It is very hard to live with a burden of the past
particularly that of the territories of the former SFRY.
“Truth” may be problematic in the philosophical meaning of the
word as well.5 On the other hand, truth may be liberating and cathartic, but
also a burden for the future. However, it cannot be disputed that the
aspirations for “truth and reconciliation”, as well as the aspirations for
establishing individual criminal responsibility for war crimes are, in
principle, something positive. However, the true question, and the question
that we are trying to answer here is weather such general legal and political
proclamations that are characteristic also for the concept of the so-called
transitional justice, as well as for the ICTY itself, are feasible and reachable
2
3
Jovan Ćirić; - Dvadeset godina Haškog tribunala; - “Pravni život“ 9/2012.
Todor Kuljić; - feuilleton “Sećanje na Titoizam“, article titled “Pakt ćutanja“, - “Politika“,
13 August 2011, p. 14
4
For further details on the constant reminders of the tragic events that occurred from 1941 to
1945, which were one of the main causes of the 1990s wars in the territory of the former
SFRY, see also Jovan Ćirić; - Prvi udarac; - in the proceedings “20 godina od razbijanja
SFRJ“; published by the Institute for Comparable law; Belgrade, 2011.
5
First of all because truth is always subjective to an extent and is not easily fathomable.
178
at all, or that is just an empty platitude or phrase which hides beneath itself
something completely different. To simplify, the question actually is weather
and to what extent the ICTY has been objective and impartial in its work and
weather and to what extent it succeeded in finding out “truth”, and
consequently in turn “reconciliation”?
First we have to reflect back to what is stated at the web site of the
ICTY itself. With respect to the ICTY itself and its self-definition, in the
paragraph on its roles and responsibilities, one of the first sentences reads:
“Judges have also ruled that rape was used by members of the Bosnian Serb
armed forces as an instrument of terror.”6 What is the meaning of that
sentence? When did The Hague judges rule that, in what case, based on
what, what evidence, simply – how did they reach the conclusion that (only)
the Bosnian Serbs were rapists? Is the meaning of that sentence that the
Croats and Bosniacs did not commit rapes at all? Or it maybe means that
when they raped, the Croats and Bosniacs did it not for political, but for
purely sexual reasons? It would be much more appropriate of course to have
a different formulation at the ICTY’s website. For example, to say that the
rapes that were committed in the event of war (irrespective of who they were
committed by, and they were committed by all three sides) shall be
considered an instrument of terror. Or to hire demographic and other experts
to assess whether the Serbs raped “this many” women, that the Bosniacs
raped “that many” women, and the Croats raped “that many”. We can allow
also for unrealistic exaggerations that the Serbs raped the most, but such a
generalized statement that only the Serbs raped, and that could be concluded
from the formulation used on the ICTY web site, is not so much an
expression of partiality, but rather an expression of obtuse and utterly
presumptuous arrogance, as anyone willing to think and use his/her head can
clearly see that that is an utter lie.7 That that is so is confirmed also by a
researcher of the war events in Bosnia and Herzegovina, a Bosniac from
Sarajevo, from the Research Documentation Centre, by the name of Mirsad
6
www.icty.org/sections/AbouttheICTY
However, as it was said in an aphorism that is attributed to Joseph Goebbels: “If you repeat a
lie a hundred times, it becomes the truth.” (http://aforizmi.blog.rs/blog/aforizmi/jezik)
7
Jovan Ćirić, PhD
179
Tokača, who established that the death toll in Bosnian war was 96.595 direct
and 2.200 indirect casualties, or approximately 98.000 in total.8
Therefore, although there are such Bosniac researchers who argue
that the total death toll in the war was 98.000, and although the ICTY
recognised, as will we see later, the findings of the Norwegian demographic
researcher Ewa Tabeau, according to which the total number casualties from
all ethnic groups was 108.000, it still states on its website that the Serbs
committed mass rapes of mostly Muslim women, and it goes on to recognise
prejudices and mindless and absurd “spinning” and manipulations that were
characteristic for the Western media, such as, for example, Newsweek’s
allegations from 3 January 1993 about 30.000 to 50.000 rapes committed by
the Serbs.9 That means that for less than a year the number of victims of rape
by the Serbs reached almost one half of the total death toll in the three and a
half-year long war, in accordance with the impartial Norwegian’s claims,
i.e., the number of the raped women is more than one half of the total death
toll as established by a Bosniac, Tokača. Of course, it is clear that this is a
total nonsense, i.e., that the ICTY fell under the influence of fabrications and
media manipulations. For it would be fairly easy to calculate that the number
of 50.000 raped Muslim women in only 9 months10 is even theoretically
impossible.
In any case, when there is such a statement that at the very beginning
of the web site of the ICTY, which implies that only the Serbs were
8
Tokača says that he himself believed that the number of casualties was approximately
200.000, but that he later made a study on missing people for the UN Sub-Commission and
Professor Manfred Nowak and discovered the problem of a large number of names appearing
twice. (http://www.novosti.com/2009/11-intervju-mirsad-tokaca/) Tokača also says that many
people feel offended because he established that there were “only” 98.000 casualties in the
war.
(http://www.glassrpske.com/novosti/vijesti_dana/Mirsad_Tokaca_Smetam-jer-samutvrdio-da-je-u-ratu-stradalo-98000-ljudi(lat/69862.html)
9
http://thedailybeast.com/newseek/1993/01/04/a-pattern-of-rape.html
10
The war began in April 1992, and already in January 1993 Newsweek published an article
on 50.000 raped Muslim women. That means 6.000 rapes per month, 1.500 per week, 200 per
day. If one were to translate that in minutes, hours, days, months, and years, one would very
easily come to a completely ludicrous number that would show that the Serb army forces did
not do anything else but engage in rape.
180
(terrible)11 rapists, then it is clear that that prejudices everything else,
everything that the ICTY deals with, and what can be expressed in the form
of an aphorism: “In The Hague everyone is presumed innocent until he is
proven to be a Serb!”12 With that in mind, could there be any “truth and
reconciliation”, when the ICTY itself on its website, completely arbitrarily,
but also unequivocally, sides with one, and against the other side, clearly
influenced by lies and manipulations.
It is interesting13 also that “The Hague justice” officials themselves,
when they retire, i.e., when they no longer hold their high-level functions,
either as prosecutors or in the tribunal, tend to admit and disclose quite a lot.
Here, naturally, we refer primarily to trafficking in human organs in
Kosovo.14 Thanks to Carla Del Ponte’s conscience finally having got the
11
Here we deliberately use the term “terrible”. Specifically, at the ICTY website there is a
short film on the tribunal, which shows also some scenes from the session of the UN Security
Council in May 1993, when this tribunal was established, and then United States Ambassador
to the UN, Madeleine Albright stating that the tribunal would be impartial and that its justice
would not be a winner’s justice. (http://www.icty.org./sections/OMKSJ) However, that
recording should be linked also to another more recent recording or Mrs Albright, which is
available on youtube. Namely, it you type Madeleine Albright in Prague: “Disgusting Serbs“,
i.e., if you go to the address www.youtube.com/watch?v=1FaPUBUY558 you will be able to
see a recording of Mrs Albright’s book promotion or signing in a bookshop in Prague, Czech
Republic. The said promotion was attended by several (a dozen) Czechs who protested
against the negative role that Albright had in the bombing of Yugoslavia and all the events
that occurred before and after that. The incident ended with Albright leaving the bookshop,
saying “disgusting Serbs“. Therefore, one could use not “terrible Serbs”, as we use here, but
“disgusting Serbs“, as Madeleine Albright says, which is a little stronger and more negative.
In any case, the recording of Albright at the session of the UN Security Council and her
recording in the Prague bookshop are the peaces of the same puzzle.
12
Lawyer Goran Petronijević emphasised that the by pronouncing a conviction to Tolimir,
and judgements of acquittal to the Croatian generals Ante Gotovina and Mladen Markač, and
the former commander of the so-called UCK Ramush Haradinaj, The ICTY only confirmed
that the statement that everyone is presumed innocent until he is proven to be a Serb was
justified.
(http://www.blic.rs/vesti/Politika/357755/Petronijevic-Svako-je-nevin-dok-se-nedokaze-da-je-Srbin
13
If the term “interesting” is appropriate at all in this case.
14
Thus, for example, the renowned British daily newspaper The Guardian published on 12
April 2008 an article under the heading “Former war crimes prosecutor alleges Kosovan army
harvested organs from Serb prisoners – 300 killed in house clinic in Albania, says Del Ponte“
(http://www.guardian.co.uk/world/2008/apr/12/warcrimes.Kosovo...) Del Ponte, in the
interview for the Croatian “Večernji list“ states also that: “NATO obstructed the investigation
Jovan Ćirić, PhD
181
better of her and urged her to disclose what she knew about trafficking in
organs in her memoirs and subsequent interviews, another Swiss, Dick
Marty initiated an investigation in the Council of Europe, i.e., submitted a
report on trafficking in organs.15 However, after all that, after the report was
submitted, nothing actually happened, i.e., the overall case did not see its
logical epilogue before the ICTY. Furthermore, the ICTY, with respect to
Ramush Haradinaj, pronounced a judgment of acquittal. By keeping “The
Hague justice” unreachable for the Serb victims, even after all the
disclosures by Del Ponte and Dick Marty, the ICTY discredited itself to the
highest possible degree. The tribunal did not succeed in convincing the Serbs
about its good intentions, objectivity and impartiality, i.e., to convince them
that through The Hague trials the real truth and the real reconciliation could
be reached. As, to put it simply, the European high-level officials speak
directly, publicly and openly of very brutal crimes committed against the
Serbs, but nothing happens at the level of the international judicial
authorities. It appears that David Harland, Executive Director of the Geneva
Centre for Humanitarian Dialogue was right16 when he stated for The New
Your Times from 07 December 2012 inter alia the following: “Convicting
only Serbs simply doesn’t make sense in terms of justice, in terms of reality,
or in terms of politics. Too bad if you were a Serb victim of any crime in the
former Yugoslavia. More Serbs were displaced — ethnically cleansed — by
the wars in the Balkans than any other community. And more Serbs remain
of trafficking in organs in Kosovo” (http://www.vecernji.hr/vijesti/del-ponte-NATO-otezaoistragu-trgovine-organima-kosovu-clanak-230105) Truth be told, Del Ponte did not say
directly that NATO prevented the investigation and the indictment, but even the fact that they
“only” obstructed it is sufficient to conclude that the ICTY and its prosecutors could not have
been independent, objective, or impartial.
15
The report titled “Inhuman treatment of people and illicit trafficking in human organs in
Kosovo“, available at:
http://assembly.coe.int/asp/apfeaturesmanger/defaultertsiteview.asp?id=964)
16
The Centre for Humanitarian Dialogue is an international nongovernmental organisation
established in 1999, and located in Geneva, and today is one of the world's leading conflict
mediation organisations. As a neutral organisation, its task is to support those solutions that
facilitate the creating of durable and equitable peace, all in accordance with the principles of
international law. The mission of the Centre is to support the efforts on the establishment of
the global response to armed conflicts. (http://www.hdcentre.org/about)
182
ethnically displaced to this day. Almost no one has been held to account, and
it appears that no one will be.”17
There is, however, another fact that further discredits the ICTY itself
and that directly adds to David Harland’s statement that more Serbs were
displaced than any other community and that no one has been held to
account for it. Specifically, the ICTY prosecution indicted as many as four
Serb presidents, and all four founded themselves in The Hague Detention
Unit and in The Hague courtroom. Those are Milošević, and Milutinović,
and Karadžić, and Biljana Plavšić. As is well known, indictments have been
brought neither against Tuđman nor against Izetbegović, and the situation is
similar with respect to some other high-level military and political officials,
particularly those of Bosniac ethnicity. Namely, irrespective of all the
interpretations and reinterpretations of the tragic events that occurred in
Dobrovoljačka Street in Sarajevo on 3 May 1992, dozens of soldiers, 45
members of the Yugoslav People’s Army (JNA) to be exact, in a column that
was withdrawing from the city, were killed by the members of the so-called
“Green Berets”, the Army of the Republic of Bosnia and Herzegovina. That
45 members of the Yugoslav People’s Army were killed is a fact, and it
cannot be refuted. With that in mind, one has to underlined also the words of
the Canadian General Lewis Mackenzie, who was present during those
events, and who later wrote in his book that he had watched how the
members of the “Green Berets” who blocked the Yugoslav People’s Army
column in Dobrovoljačka Street pushed the barrels of their guns through
windows on the vehicles in the column and started shooting the soldiers in
the vehicles. “Blood was pouring down the windshields. It was the most
horrible day of my life”.18 Be as it may, something horrible happened in
Dobrovoljačka Street, 45 soldiers were killed during their withdrawal from
the city, but the ICTY, or any Bosnian or international court, did not process
that case. Thus, even in that case, the Serb victims were left without any
legal and moral satisfaction. Is that the right way to establish the real truth
and reconciliation, i.e., to individualise blame?
17
David Harland’s article is available also in Serbian translation here:
http://www.nspm.rs/rubrika/dejvid-harland-nema-smisla-da-su-samo-srbi-krivi-za-zlocine-uratovima-u-jugoslaviji.html
18
Lewis MacKenzie; - “Peacekeeper: The Road to Sarajevo“, - Vancouver: Douglas and
McIntyre, 1993
Jovan Ćirić, PhD
183
Naturally, there can be no question of the invidualisation of criminal
responsibility if there is a blatant discrepancy in the numbers on the
convicted, i.e., a blatant discrepancy in the severity of the verdicts. There can
be no question that the ICTY did not apply the principles of collective
responsibility to the Serbs, considering that the highest-level Serb official
were all indicted, while even the lower-level Croat and Bosniac officials
were mostly acquitted. This is even more evident if one takes into account
the general statistics about the numbers of those indicted/convicted for war
crimes that occurred during the wars in the former SFRY.
Another issue deserves, by all means, to be mentioned. It pertains to
the question weather the ICTY was able to isolate itself at all from the
exceptionally strong media influences and pressures that followed the work
of the tribunal and all the events that were considered and tried by the
tribunal. The question is, therefore, weather the tribunal was able to do
anything but to succumb to often completely skewed accounts coming from
the media,19 various international PR lobbying agencies,20 and tendentious
comments coming from different, usually very powerful world politicians,
which were of course anti-Serb.21 Both the practice and the theory still have
to answer the question how can a court, comprised of “common” people who
all have their fears and prejudices, remain disinterested after all the
19
For further details on the satanisation by the media see for example: Sloboda Vuković; Etika zapadnih medija - Anti-srpska propaganda devedesetih godina XX veka; - Novi Sad,
2009. Also in: Zoran Petrovića – Piroćanac; - Izbrisati srpski virus (Mala antologija rasizma,
šovinizma i govora mržnje na kraju drugog i početkom trećeg milenijuma) – “Čigoja“,
Belgrade, 2002.
20
Here we should mention by all means the famous American PR Agency Ruder Finn. The
state of Croatia hired this Agency to shape public awareness on 12 August 1991, and
Izetbegović and Bosnia and Herzegovina officially hired this Agency on 23 June 1992. Its
task was to lobby and in other ways influence the global public to side with Croatia and
Bosnia
and
Herzegovina.
For
further
details
on
this
subject
see:
http://sourcewatch.org/index.php?title=Ruper_Finn’s_work_for_Croatia
21
Thus, for example, the British actor and UNICEF Goodwill Ambassador Peter Ustinov
stated inter alia the following: “Even animals use their resources much better than these
wretched creatures – the Serbs.” (http://uk.answers.yahoo.com/question/index?qid
=2009052215144AAbEwG It is a particular case if such comments come from the most
powerful politicians in the world. With that respect, an indicative example it President Bill
Clinton’s speech on 26 March 1999, two days before the onset of the NATO bombing
campaign against Yugoslavia. (http://news.bbc.co.uk/2/hi/europe/304411.stm)
184
accusations and condemnations by the world’s most powerful politicians.
Also, another issue is the marathon-length trials with a myriad of evidence
presented and testimonies heard.22 With that respect, during the trial of
Slobodan Milošević, 5.000 documents were reviewed, and 295 witnesses
heard, while the transcript of the cross-examination of Stipe Mesić was 117
pages long. The problem of ruling based on such excessive volumes of
material still has to be examined by process theory and judicial
psychology.23 Another particularly important issue is whether and to what
extent is that used deliberately and with intent to exhaust and tire out the
defence: the indictees’ lawyers and councillors. In such circumstances, one
cannot see the wood for the trees.
The problems in terms of partiality, biasedness, and excessive
political interferences in the work of the ICTY are, therefore, numerous.
Here it appears necessary to summarise and single out several, in our
opinion, the most important objections that can be made against the ICTY.
1. One of the fist objections relates to the fact that, unlike the Serb
high-level military and political officials, none of the Croat or Bosniac
top-level military or political officials were indicted. That directly
suggested to the broadest political and general public in the countries in the
region that only the Serbs are to blame. Here it is interesting to note also that
the indictment against Slobodan Milošević was raised at the very peak
of the bombing campaign against Yugoslavia in May 1999. It is
particularly unusual that the indictment should be raised at that exact
time also for the crimes that occurred during the war in Croatia in 1992.
In other words, the ICTY prosecutors waited for entire seven years to raise
22
It can be argued that those were deliberately and intentionally exaggerated volumes of
evidence and testimonies to create an impression that every single detail and every fact would
be thoroughly examined. An ordinary person, a layman, or a future researcher may consider
one day only the dry numerical data and “discover” that the prosecution presented thousands
of evidence and heard hundreds of witnesses a single trial. Would that not be enough for that
researcher to conclude that everything was established lege artis and that the “truth” presented
by the prosecution in the trial was undoubtedly “the truth”.
23
Mirjan Damaška; - “Pravi ciljevi međunarodnog kaznenog pravosuđa“; - “Hrvatski ljetopis
za kazneno pravo i praksu“; - Zagreb, Vol.15, No.1/2008 p.17
Jovan Ćirić, PhD
185
the indictment against the President of the Republic of Serbia, as an
instrument to put pressure upon the enemy in the war.24
2. Also, one of the first, i.e., most important, objections against the
ICTY relates to that that the ICTY, i.e., any of the international courts,
did not seriously and effectively respond to some of the most brutal
crimes committed against the Serbs, and here we refer primarily to
trafficking in organs. With the exception of individual investigation
activities by Dick Marty and the direct admission by Carla Del Ponte that
NATO Pact obstructed the investigation and the work of the prosecution,
practically nothing else happened. Moreover, EULEX special prosecutor
Jonathan Ratel accused Russia of obstructing the investigation into
trafficking of organs, because they refused to recognise and cooperated with
the state of Kosovo.25 Therefore, while one prosecutor accuses NATO Pact
(the Western Alliance), the other accuses Russia. It is clear how much
politics is behind all that.
3. The story about non-sanctioning, i.e., failing to raise indictments
for war crimes, i.e., for aging and launching a war of aggression, and about
the ICTY failing to indict anyone for launching the war in the territories
of the former SFRY is particularly problematic. In fact, the main cause of
all war crimes is always the war itself. With that in mind, a question is
raised as to what contribution can an institution that does not even consider
the responsibility for launching the war have in the prevention of war
crimes? That is to say, a question must be raised weather the war in the
territories of the former Yugoslavia would occur at all if the former
Yugoslav republics opted to remain in the Yugoslav Federation, and
therefore it can be argued that the issues of war crimes is secondary to the
issues of who is responsible for launching that war.26 Here one has to take
into account also the responsibility of those who encouraged and supported
the secession of individual republics, particularly as they could have guessed
24
Boris Krivokapić: Putevi i stranputice međunarodnih krivičnih sudova, - the proceedings
“Od Nirnberga do Haga pouke istorije“, priredila Jelena Lopičić – Jančić; Belgrade, 2012, pp.
56-57
25
In the article under the heading “Rastel: Rusija ometa istragu o trgovinu organima na
Kosovu“; - daily newspaper “Politika“ from 12 February, p 9.
26
Slobodan Stojanović; - “Od Nirrnberga do Haga,- nekoliko koraka unazad; - in the
proceedings “Od Nirnberga do Haga pouke istorije“, Belgrade, 2012. pp. 177-178
186
and should have known what the outcome of that would be. However, the
ICTY did not consider any of that at all. With that in mind, we have to quote
a part of the final judgment by the Nuremberg Tribunal: “War is essentially
an evil thing. […] To initiate a war of aggression, therefore, is not only an
international crime; it is the supreme international crime differing only from
other war crimes in that it contains within itself the accumulated evil of the
whole.”27 Recently, this warning of the Nuremberg Tribunal is increasingly
ignored inter alia by lightly given qualifications of genocide and
humanitarian catastrophes, and making war, i.e., humanitarian intervention,
appears as the only way to prevent genocide and continued humanitarian
catastrophe.28 This is a pattern, a media and political stereotype, that ensures
that the road to war is paved, i.e., justified with good intentions.29
4. With that respect, one can also speak of media manipulations
that influence the work of the ICTY. That refers to the media and political
pressures that the tribunal was not able to resist, but also the media and
political manipulations that it sometimes unintentionally and sometimes
unintentionally generates itself. Thus, for example, a renowned French
Professor of Criminal Law Mireille Delmas-Marty describes the work of all
ad-hoc tribunals as “show justice”. That implies inter alia that those courts
have missionary tendencies in their work.30 A feeling or a belief is created
among the judges that they are, by virtue of their work, or the position they
hold, called upon to “bring” justice to various uncivilised part of the world.
They (the judges of such courts) are therefore the ones who need to “show”
justice to the “barbarians” (“show justice”). However one chooses to
understand it, all that in fact means that many non-legal and firstly political
factors come to the scene, and primarily that the judges rule not so much
based on the material factuality, but rather based on some religious27
As quoted by Diane Johnston; - “The Good Intentions That Pave the Road to War“; - the
article translated in the Serbian language is available at: www.nspm.rs/savremeni-svet/put-urat-popločan-je-dobrim-namerama.html
28
Here we can add the stories about terrorism and fear of terrorism. Therefore, action against
terrorism today is a very convincing alibi and justification for various armed military
interventions.
29
For further details about this see the above quoted article by Diane Johnston, op.cit.
30
As quoted in article by Branislav Ristivojević; - “Politika i pravo u radu Haškog tribunala“,
available at: http://www.nspm.rs/istina-i-pomirenje-na-ex-yu-prostorima/politika-i-pravo-uradu-haskog-tribunala.html
Jovan Ćirić, PhD
187
ideological-political mission31 that has been given to them, i.e., that they rule
based on what came out in the media about the wars and the events in the
former Yugoslavia and how it was formulated. Such type of missionary
work, missionary adjudication must, by its nature, imply also exemplary
punishments, exemplarity being another name for selectiveness (in
prosecution).32 That is essentially reflected in the following: the prosecution
selects those cases for which they think that they could be good examples,
which can fulfil their purpose, and their appropriate social and political
mission. Without dwelling on what their political mission is, if and to what
extent we accept it or not, the fact is that all that actually indicates excessive
influence of political factors on the trials held before the ICTY. After all, the
very term and the concept of “transitional justice” are characteristic for the
post-conflict societies and the establishment of truth and reconciliation in
these societies, which is rather a political than a legal category.33 In any
case, missionary tendencies add very nicely to transitional justice, and to the
establishment of truth and reconciliation in the post-conflict societies.
Naturally, it can be rightly noted that that which is today called “transitional
justice” is far from justice in its classical meaning, as specified back in the
Roman times: “Iustitia est constans et perpetua voluntas: ius suum cuique
tribuendi” or “Justice is the constant and perpetual will to render to every
man his due.” Or to keep it very simple, without equality and equal treatment
of all there is not and there can be no true and complete justice. It should not
be surprising that in the work of ad-hoc tribunals, and even the ICTY, there
is neither equality, nor justice, but appropriate objectives and political
missions. While those objectives and missions can be manifested also in a
form of “truth and reconciliation”, most often they are aimed at the
pacification of specific regions and nations, especially those that are
traditionally labelled as “the disturbing factor”. With all this in mind, it
could be argued that the role of the trails before ad-hoc tribunals, and also
before the ICTY, is to put “history on trial”. In that way, the “missionaries”,
i.e., judges of those tribunals, through the so-called transition justice try
history, while what they are actually doing is trying to control the future. To
what extent it all that politics, and to what extent it is based on law is clear
31
The difference between religion, ideology and politics is usually very small.
Jovan Ćirić; - Egzemplarno kažnjavanje; - “Crimen“ 1/2012, pp. 21-38
33
Article titled “Transitional Justice“, available at: http://plato.stanford.edu(entities/justicetransitional
32
188
even at first glance. Naturally, with respect to trials of the past (history), one
must say also this: the complete historical truth is difficult, if not impossible,
to establish, even for professional historians, who conduct their research tens
or even hundreds of years after the events occurred. That becomes even
more illusory if it said about an international court, which is, primarily in
terms of mentality, far from the countries and peoples whose history it is
supposed to consider and try. Putting history on trial is in fact very difficult
also because sometimes it is necessary for many year or even decades to pass
before some archives can be opened, some of the parties involved to open up
to speak, and some additional facts to be considered in a calm manner and in
the real light. That is, however, the case with the accounts about trafficking
in organs in Kosovo and about what was publicly disclosed by Carla Del
Ponte, and investigated by Dick Marty. That is also that case with the two
Muslims - Bosniacs: Hakija Meholjić and i Edin Garaplija. Here we refer
primarily to the Norwegian documentary “Srebrenica - A Town Betrayed”
by Ole Flum. It shows that even in and around Srebrenica there were
concentrations of Mujaheeden and Al-Qaida.34 This documentary, which is
available in its full version on YouTube, describes in a new way the situation
that existed in Srebrenica and in Bosnia and Herzegovina.35 In fact, the
central place, the main role in the documentary is that of a Muslim-Bosniac
by the name of Hakija Meholjić, who was the Srebrenica police commander
during the war events. That is why his testimony has a special weight. Hakija
Meholjić says that in 1995 he was invited with a group of people of
Srebrenica to join the talks in Sarajevo, in the Holiday Inn hotel and that
they were met there by Alija Izetbegović, who told them literally the
following: “Clinton is offering me to allow a group of Chetniks enter into
Srebrenica and massacre 5.000 people of Srebrenica, and that after that he
could approve a NATO intervention.”36 Here one has to mention also the
story of Edin Garaplija, who appeared also at the trial Radovan Karadžić and
stated that the Muslim-Bosniac military formation “Larks” liquidated during
the Sarajevo war a French UN worker only to have the Serbs accused for it.
He testified also that the same “Larks” are responsible for the murder of a
Serb boy and a Muslim girl, the “Sarajevo Romeo and Juliet”, when they
34
http://www.vidovdan.org/index.php?option=com.content&view=article&id=15685:201107-07-20-56-53&catid=48;vesti
35
http://www.youtube.com/watch?u=RUuhSGnlvv8
36
http://www.youtube.com/watch?v=T_VgGPxpTTs
Jovan Ćirić, PhD
189
attempted to flee from Sarajevo on 19 May 1993.37 In fact, Garaplija stated
that back on 12 September 2000 in the interview to the Croatian daily
newspapers “Slobodna Dalmacija”, in an article under the heading “The
Larks Practiced Sniper Shooting Killing Civilians in Sarajevo”.38 Therefore,
a Bosniac-Muslim in his interview to Croatian newspapers reveals that in
Sarajevo/ Bosnia not everything was just as it was shows in a sort of
Hollywood clichés.39
5. Media manipulations are closely connected also with the issues of
presumption of innocence. The fact it that many indictees in the ICTY are
usually convicted in advance, especially if they are high-level officials, and
if the case pertains to the so-called command responsibility. It refers to the
following situation: first there is a long and extensive discussion in the most
influential media in the world about the war and specific war events. Such
events sometimes really can be characterised as war crimes. However, the
problem occurs when someone is indicted for those war crimes, and
especially if that is a high-level military or political official. The public
proclaims abhorrence of the crime and “demands” that someone is held
to account for it. In such circumstances, the indictee is already convicted
in the eyes of the general public. It is very difficult to prove that that
individual indictee is still not guilty, and that the prosecution still has to
prove the guilt. That situation can be described as the so-called “trial by
media“.40 Thanks to the media, a psychological preconception is created
indirectly even among the judges, undermining the presumption of
innocence.41 That is the essence of what is usually implied under the term
“trial by media”. To show someone guilty in the eyes of the broadest public
even before he/she even appears before the tribunal. All in all, in such cases,
after the media has already convicted the indictees, it is virtually impossible
37
Article titled “Svedok na suđenju Karadžiću traži i zaštitu policije“, daily newspaper
“Politika“ from 17 February 2013, p 2.
38
http://arhiv.slobodnadalmacija.hr/20000912/novosti2htm
39
This really is about Hollywood, stereotypes and clichés. I refer to the case of Boško and
Admira – “Sarajevo Romeo and Juliet“, but also all other stereotypes that had their peak in the
film by Angelina Jolie “In the Land of Blood and Honey”.
40
Philip Schlesinger & Howard Tumber; - Reporting Crime – The Media Politics of Criminal
Justice; - Clarendon Press Oxford, 1994, pp 183-206
41
More about this can be found also at: www.newswatch.in/?p=5715
190
to ensure a true and complete equality of arms between the prosecution and
defence. The wars in the territory of the former SFRY were extensively
covered by the media, and all that had negative implications on presumption
of innocence and democratic nature of the overall trials. Therefore, in some
situations, the pressure by the media is so strong that even in this case one
can speak of excessive political interferences in The Hague.
6. And last but not the least, and rather the essence of the problem in
terms of partiality of the ICTY, is the issue of statistics in the work of the
tribunal. It seems to us that that deserves special attention. When we started
working on the analysis of the work of the ICTY, we were interested to see
weather the Croats were tried for crimes committed against the Serbs or
predominantly (only) for crimes committed against Bosnians. And vice
versa, weather the Bosniac were tried only for crimes committed against the
Croats or also for crimes committed against the Serbs, in what manner and
how frequently. Our premonitions proved to be true: the Serbs do appear
very rarely as victims. In fact, even when the ICTY did prosecute them, the
Croats had been killing Bosniacs-Muslims, or the Bosniacs-Muslims had
been killing the Croats. In the activities of the ICTY, the Serbs almost do not
appear as victims at all. Only in a couple of cases: Haradin Bala was
convicted for crimes against the Serbs in Kosovo and sentenced to 13-year
imprisonment; Zdravko Mucić, 9-year imprisonment, Hazim Delić 18-year
and Esad Landžo 15-year imprisonment.42
All in all, it seems to us that a tabular presentation of those convicted
before the ICTY can best illustrate the situation in terms of partiality and
biasedness of the tribunal itself.
42
Name
Ethnicity (Army
Membership)
Verdict
Victims’
Ethnicity
Zlatko Aleksovski
Croat
7 years
imprisonment
Bosniacs Muslims
Milan Babić
Serb
13 years –
committed
suicide
Jovan Ćirić; - Dvadeset godina Haškog tribunala; - “Pravni život“ 9/2012.
Jovan Ćirić, PhD
191
Predrag Banović
Serb
8 years
Vidoje Blagojević
Serb
15 years
Dragan Jokić
Serb
9 years
Tihomir Blaškić
Croat
9 years
Bosniacs Muslims
Janko Bobetko
Croat
Died before
transfer to the
Tribunal
Serbs
Ljube Boškovski
Macedonian
Acquitted
Albanians
Johan Tarčulovski
Macedonian
12 years
Albanians
Radoslav Brđanin
Serb
30 years
Ranko Ćešić
Serb
18 years
Rasim Delić
Bosniac Muslim
3 years – Died
during
provisional
release
Miroslav Deronjić
Serb
10 years
Slavko Dokmanović
Serb
Died in
imprisonment
Đorđe Đukić
Serb
Died during
provisional
release
Dražen Erdemović
Army of
Republika
Srpska
5 years
Anto Furundžija
Croat
10 years
Stanislav Galić
Serb
Life
imprisonment
Croats
Bosniacs Muslims
192
Enver
Hadžihasanović
Bosniac Muslim
3.5 years
In Zenica
(victims’
ethnicity
unknown –
probably both
Serbs and
Croats
Amir Kubura
Bosniac Muslim
2 years
Croats
Mehmed Alagić
Bosniac Muslim
Died before
transfer to the
Tribunal
Croats
Sefer Halilović
Bosniac Muslim
Acquitted
Croats
Goran Jelisić
Serb
40 years
Miodrag Jokić
Serb
7 years
Dario Kordić
Croat
25 years
Bosniacs Muslims
Mario Čerkez
Croat
6 years
Bosniacs Muslims
Milan Kovačević
Serb
Died in detention
Momčilo Krajišnik
Serb
20 years
Milorad Krnojelac
Serb
15 years
Radislav Kostić
Serb
35 years
Dragoljub Kunarac
Serb
28 years
Radomir Kovač
Serb
20 years
Zoran Vuković
Serb
12 years
Drago Josipović
Croat
12 years
Bosniacs Muslims
Jovan Ćirić, PhD
193
Vladimir Šantić
Croat
18 years
Bosniacs Muslims
Zoran Kupreškić
Croat
Acquitted
Bosniacs Muslims
Mirjan Kupreškić
Croat
Acquitted
Bosniacs Muslims
Vlatko Kupreškić
Croat
Acquitted
Bosniacs Muslims
Dragan Papić
Croat
Acquitted
Bosniacs Muslims
Miroslav Kvočka
Serb
7 years
Dragoljub Prcać
Serb
5 years
Milojica Kos
Serb
6 years
Mlađo Radić
Serb
20 years
Zoran Žigić
Serb
25 years
Fatmir Ljimaj
Albanian
Acquitted
Isak Musliu
Albanian
Acquitted
Serbs
Haradin Bala
Albanian
13 years
Serbs
Milan Martić
Serb
35 years
Dragomir Milošević
Serb
29 years
Slobodan Milošević
Serb
Died before
transfer to the
Tribunal
Darko Mrđa
Serb
17 years
Mile Mrkšić
Serb
20 years
Miroslav Radić
Serb
Acquitted
Veselin Šljivančanin
Serb
10 years
194
Zdravko Mucić
Croat (Bosnian
Army)
9 years
Serbs
Hazim Delić
Bosniac Muslim
18 years
Serbs
Esad Landžo
Bosniac Muslim
15 years
Serbs
Zejnil Delalić
Bosniac Muslim
Acquitted
Serbs
Mladen Naletilić
Croat
20 years
Bosniacs Muslims
Vinko Martinović
Croat
18 years
Bosniacs Muslims
Dragan Nikolić
Serb
20 years
Momir Nikolić
Serb
20 years
Dragan Obrenović
Serb
17 years
Naser Orić
Bosniac Muslim
Acquitted
Biljana Plavšić
Serb
11 years –
settlement
Ivica Rajić
Croat
12 years
Željko Ražnatović
Serb
Died before
transfer to the
Tribunal
Duško Sikirica
Serb
15 years
Damir Došen
Serb
5 years
Dragan Kolundžija
Serb
3 years
Blagoje Simić
Serb
15 years
Miroslav Tadić
Serb
8 years
Serbs
Bosniacs Muslims
Jovan Ćirić, PhD
195
Simo Zarić
Serb
6 years
Slobodan Miljković
Serb
Died before
transfer to the
Tribunal
Milan Simić
Serb
5 years
Milomir Stakić
Serb
40 years
Pavle Strugar
Serb
7.5 years
Milan Zec
Serb
Acquitted
Duško Tadić
Serb
20 years
Momir Talić
Serb
Died before
transfer to the
Tribunal
Stevan Todorović
Serb
10 years
Mitar Vasiljević
Serb
15 years
Dragan Zelenović
Serb
15 years
Janko Janjić
Serb
Died before
transfer to the
Tribunal
Dragan Gagović
Serb
Died before
transfer to the
Tribunal
The statistics in the table, which was compiled in accordance with
the data taken from the ICTY website,43 could suggest a following
conclusion: the perpetrators of the war crimes that occurred in the territory
of the former Yugoslavia are almost exclusively all Serbs, and what is
particularly interesting, among the victims of those tragic wars there are
almost no Serbs at all. Some could even accept that way of thinking and such
43
http://www.icty.org/action/cases/4
196
conclusion, if the ICTY itself have not recognised as valid and reliable
evidence the findings and opinion of the Norwegian demographic expert
Ewa Tabeau, whose opinion on the numbers of casualties in Bosnian war is
considered today in The ICTY to be proven.
In fact, this refers to a recently published official expert report by the
ICTY demographic experts on the numbers of casualties in the war events in
Bosnia and Herzegovina in a period from 1992 to 1995. The study was done
by the Norwegian demographic expert Ewa Tabeau, who published, together
with her colleague from Poland Jan Zwierzchowski, the findings of the study
in the “European Journal of Population“, which have now become the
official UN matter.44 According to such data, the total number of casualties
was approximately 104,000, of which 68,000 Muslims, i.e., approximately
58%, almost 23,000 Serbs, i.e., approximately 19% and almost 9,000 Croats,
or 7.5%. 45
Naturally these are not negligible numbers, and ultimately even one
casualty it always too much, and it does seem indecent to discuss something
that could be described as “death accounting“, but it appears that it can be
concluded that there are no significant discrepancies in the ethnic
composition of the casualties, and that they are not so blatant to argue that
only one side is responsible for bestial, orgiastic massacres and genocide,
while the other side waited with their hands crossed, and went about their
everyday chores and was engaged in humanitarian work. Victims did not all
come from one side, and the killers did not all come from the other, and the
fact that there is a highest share of Muslims among the casualties is due to
their having been killed also in mutual killings, i.e., in operations against
44
Conference Paper for the European Population Conference 1-4. September 2010 – Vienna –
available at: http://epc2010.princeton.edu/download.aspx?submissionId=100880
45
This can be found inter alia on the website of the daily newspaper “Slobodna Dalmacija“
www.slobodnadalmacija.hr/BiH/tabid/68/articleType/Articleview/ArticleID/99981/Default.as
px, and on some other websites, such as, for example: www.021.rs/Info/Tacan-brojpoginulih-u-ratu-u-Bosni-104-732.html That is discussed also by Edward Herman and
David Peterson in their book “Politics of Genocide” (“Politika genocida”, Serbian translation,
Preface by Noam Chomsky) Belgrade, 2010. It is interesting to note, however, that these
findings did not have a large impact on the Serb professional or general political public, and
they definitely deserved.
Jovan Ćirić, PhD
197
each other, especially in the territory of Cazin and Bihać. The ration between
the number of Muslim and Serb casualties does not diverge that much from
Bosnia and Herzegovina demographic composition ratios, and in fact that
ratio is such that there can be no question of one side being opportunistic
killers, and the other side being all innocent victims.46 In relation to the total
population in Bosnian and Herzegovina in 1991, the death toll was 2.4%, or
by ethnicity: Muslims 3.6%, Serbs 1.7%, Croats 1.2%, and others 1.4%.47
If one would take into serious consideration Mirsad Tokača’s
findings, i.e., the findings by a Bosniac-Muslim from Sarajevo, who does not
have any reasons to understate the number of casualties of his ethnicity, and
who claims that the total death toll was a 98,000, that it is clear than with
respect to victims, the numbers of casualties, and even with respect to all war
crimes, in the media, but also the non-media sphere, there was really a lot of
exaggeration.48 However, even if we do not accept that Tokača is right, and
we see no reason not to accept that he is right, even if we accept Ewa
Tabeau’s findings and opinion, the situation is clear: the number of Serb
casualties is not drastically lower than that of Bosniacs-Muslims. And in any
case it is not as drastically low as the number of those convicted for crimes
committed against the Serbs.
Therefore, if some future researcher or some future historian were to
make conclusion on Bosnian was only based on the numbers of the indicted
46
Here one has to take into account another thing: the Muslims, i.e., Bosniacs, used to live in
a more narrow territories, mostly in larger towns, which were under siege and exposed to
direct military action, and that is why they have the largest number of casualties, more than
the Serbs, for example, whose largest town, Banja Luka, was outside the range of the war
action. If that factor is taken into account as well, it is clear that in the numbers of casualties
in Bosnian war there are really no drastic disproportions in terms of ethnic composition, and
no disproportions that would indicate that one side was absolutely the victim.
47
www.021.rs/Info/Tacan-broj-poginulih-u-ratu-u-Bosni-104-732.html
Mirsad Tokača was consulted by the team that represented Bosnian action against Serbia
before the International Court of Justice in The Hague, and he cannot be accused in any way
of being pro-Serb. This is, however, what he had to say: “In our application we still cite the
number of 5,000 casualties in Kozarac. That is ridiculous. Not that many were killed in whole
Prijedor.
It
seems
that
for
some
100,000
was
not
enough.”
(http://pescanik.net/2009/10/bosanski-atlas-zlocina
48
198
and convicted Serbs, Croats, and Muslims, he/she would conclude that only
the Serbs killed the Croats and the Muslims (Bosniacs), that there were
almost no Serb casualties, and that the Croats sporadically killed the
Bosniacs, while the Bosniacs killed a small number of the Croats, if any.
Naturally, a common-sense interpretation of history and historical events
would have to lead that future researcher to the conclusion that that is
impossible, but skilful media manipulations and the Serb’s lack of
resourcefulness in that respect, could, as they have until now, mislead even
the most benevolent interpreter (observer) of the social events. However,
even today, many researchers agree that the media demonisation of the Serbs
was done so quickly and with unbelievable unanimosity and superficiality on
the side of the Western media, which have not allowed for two decades now
for any differing opinion or interpretation of the events to surface.49 With all
that in mind, continuous insisting on numerical and statistical data, and also
that data that has by now become a part of the official UN documents on the
number of casualties in “Bosnian war”, about the numbers of Muslim, Serb,
and Croat casualties, i.e., Ewa Tabeau’s findings, demystify to a
considerable extent multiple manipulations about war crimes and alleged
genocide in the territories of the former SRFY, and particularly in Bosnia.
There are also those who deny, with greater or lesser success, those
documents and Ewa Tabeau’s findings. We do not refer here only to the
abovementioned Mirsad Tokača who has no reason to side with the Serbs.
We refer also to Professor Stevo Pašalić, a demographer from Bijeljina, who
also appeared before the ICTY as an expert witness.50 He argues inter alia
that in Sarajevo during the war there were as many as 10,000 Serbs killed.51
However, notwithstanding all that, even if the Ewa Tabeau’s findings and
opinion are considered credible, and if they are compared with the above
table, the situation is more than clear. All ethnicities had a relatively similar
numbers of casualties, and only the Serbs have been vilified, and
subsequently convicted before the ICTY.
49
Edward S.Herman; - Serb Demonization as Propagand Coup; - available at:
www.fpif.org/articles/serb_demonization_as_propaganda_coup
50
http://forum.krstarica.com/showthread.php/466646-Pašalić-sruši-laži-Eve-Tabu
51
http://www.pravda.rs/2011/0610/stevo-pasalic-u-sarajevu-ubijeno-10-000-srba
Jovan Ćirić, PhD
199
Is that the true socio-pedagogical message that the ICTY wishes to
convey to the warring sides? If the goal is to encourage triumphalism, and
therefore nationalism among the Croats and the Bosniacs, and depression
and frustrations among the Serbs, then The ICTY has truly succeeded in its
intent. If the goal is to convey to the world and to the warring sides
particularly in Bosnia a message that could be summarised in one sentence
stated by David Harland to The New York Times on 7 December 2012:
“Too bad if you were a Serb victim of any crime in the former Yugoslavia”,
then the ICTY has truly succeeded in conveying it. Neither the Croats, not
the Bosniacs have any feelings of guilt for anything that they did during the
wars in the former SFRY, while the Serbs are utterly frustrated. That is not
the message of reconciliation, that is the message of resurfaced ethnic
cleansing in the near or in the far future. That probably suits the strategists
that advocate the so-called controlled conflict. The only question that is
posed is in which way and how successfully a future conflict can be
controlled.52
Weather the Serbs, today, as well as, for example, in 20 years time
would be able to accept that the ICTY has never indicted anyone for the
crimes committed against them, while it has been very meticulous with
respect to the crimes committed by the Serbs? The Serb’s intuitive feelings
about “The Hague injustice” are confirmed rather nicely by the above
presented statistics, and also by the so-called Outreach Programmes,
implemented by the ICTY. In out opinion, the true justice has no need for
propaganda and explanations. The ICTY representatives are not convinced
by the justice that they meted out, and that is why they need a clarification
and justification in a form of the Outreach Programme. Thus, on 8
November 2011, the ICTY’s Outreach Programme welcomed a group of
international film workers who were on a one-day study visit to the
International Court. The visitors heard the presentations about the Outreach,
the media and the achievements of the ICTY, while a representative of the
52
That is, however, a completely relative issue, as the conflict occurs somewhere else, and not
in their back yard, and the advocates of such “controlled conflict” do not consider even
someone else’s suffering and victims, regardless of wheatear those are Serbs, or Bosniacs, or
Croats.
200
Prosecution spoke about the cooperation of the states with the prosecution.53
If we wanted to be a bit cynical, we could raise a question weather the
prosecutors and judges are training to become actors or weather they are
already seasoned actors in a very bad theatre. In that theatre, the scenario
was written and the roles were decided a long time ago.
However, the problem is that one side would certainly be dissatisfied
with the work of the ICTY, and there would be no real truth and
reconciliation. In fact, to ensure truth and reconciliation, i.e., true
reconciliation, both (all three) sides need to be at least equally satisfied and
dissatisfied. Such judgements do not allow in any way for the establishment
of that type of balance, and balance is the foundation of justice.54 But who
cares about all that in The Hague, who cares who will be dissatisfied, and,
finally, who cares weather the 1990s war atrocities, would one day resurface,
perhaps exactly as a result of those dissatisfaction and frustrations, or
excessive exaltations and triumphalism?
53
http://www.icty.org/sections/Outreach/.....
Even only because we imagine Lady Justice with a set of balance scales typically
suspended from her hand.
54

the hague tribunal between law and politics

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