The tribunal and the ICC: do precedents matter?

• Author: Pejic, Jelena
• Position: International Criminal Court - Conceptualizing Violence: Present and Future Developments in International Law

INTRODUCTION

Conventional wisdom has it that the success, or failure, of the ad hoc Criminal Tribunal for the Former Yugoslavia (the Tribunal) will have a critical impact on the establishment of a permanent International Criminal Court (ICC).(1) The exact meaning of "success" is rarely defined: it usually denotes the Tribunal's ability to actually try persons indicted for crimes within its jurisdiction. This definition of success fails, however, to properly delineate the Tribunal's responsibility for bringing war crimes suspects to justice. It overlooks the fact that the Tribunal is not equipped with the means of physically apprehending indictees and that this task belongs to the international community, in the broadest sense of the term. Thus, the question that may fairly be asked with respect to the Tribunal is whether it is doing all it can to fulfill its mandate. If the answer is affirmative, the real issue becomes who should be held responsible for the outcome of the Tribunal's work. Part I of this Article will examine the respect*e roles of the international community(2) and the Tribunal in ensuring the Tribunal's success, and the precedential value of the Tribunal for the creation of a permanent International Criminal Court.(3) Part II submits that the emerging profile of an ICC is so different from that of the ad hoc Tribunal that the very notion of the latter's success as being critical to the former may be called into question.(4)

1. SUCCESS IS EQUIVALENT TO STATE COOPERATION

   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, as it is officially called, was established by the United Nations Security Council (the Security Council or the Council) in May 1993.(5) Its creation was essentially prompted by two considerations. First, by 1993, it had become obvious that the parties to the Yugoslav conflict were unwilling, and in the case of Bosnia and Herzegovina, unable to bring to justice persons responsible for the egregious crimes that were taking place. Second, by establishing the Tribunal, the Security Council hoped to deflect criticism for its reluctance to take more decisive action to stop the bloodshed in the former Yugoslavia. In both political and legal terms the Council's action was groundbreaking. With the Cold War over, it became possible for its members to reach political agreement on a measure that would have been unthinkable only four years earlier. In this context it should be mentioned that the Council's resolve in creating the Yugoslav Tribunal, replicated only once since then,(6) gave rise to accusations of selective justice that are voiced to this day. The need to avoid such selectivity in the future is one of the major arguments advanced by proponents of establishing a permanent International Criminal Court.

   From a legal standpoint, the Security Council's decision to create an ad hoc Tribunal was also without precedent. The Council first indicated its determination to create a judicial body in February 1993, when it requested that the United Nations Secretary-General submit for its consideration a report on how such a Tribunal might be established, accompanied by "specific proposals."(7) On May 25, 1993, after having considered the Secretary-General's report which included a statute for the Tribunal,(8) the Security Council formally brought the Tribunal into existence by means of Resolution 827.(9) As is well known, the Tribunal is authorized to try persons suspected of grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity.(10) It has concurrent jurisdiction with national courts and is not intended to prevent or preclude the role of national criminal justice systems in prosecuting serious crimes under international law.(11) The Tribunal may, however, assert its primacy over national courts by requesting that they defer to its competence at any stage of the proceedings and it may also retry a case adjudicated by a national court.(12)

   The Tribunal was established by the Security Council pursuant to Chapter VII of the United Nations Charter, as an enforcement measure which the Council is authorized to take when it determines that a particular situation constitutes a threat to peace, a breach of peace or an act of aggression.(13) The legal significance of this method of establishment is that it imposed on all United Nations (U.N.) member states the obligation of cooperating with the Tribunal.(14) That duty was reiterated in Security Council Resolution 827 (paragraph 4), pursuant to which the Council

   [d]ecide[d] that all States shall cooperate fully with the International

   Tribunal and its organs in accordance with the present resolution and the

   Statute of the International Tribunal and that consequently all States shall

   take any measures necessary under their domestic law to implement the

   provisions of the present resolution and the Statute, including the

   obligation of States to comply with requests for assistance or orders

   issued by a Trial Chamber under Article 29 of the Statute.(15)

   It is important to note that the Tribunal is considered a subsidiary organ of the Security Council within the terms of article 29 of the U.N. Charter, albeit one of a judicial nature.(16) It is expected "to perform its functions independently of political considerations [and it will] not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions."(17)

   Apart from Security Council resolutions, the obligation of states to comply with the Tribunal's decisions is laid down in article 29 of the Tribunal statute which deals with cooperation and judicial assistance. Under article 29:

   1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.

   2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:

   a) the identification and location of persons;

   b) the taking of testimony and the production of evidence;

   c) the service of documents;

   d) the arrest or detention of persons;

   e) the surrender or the transfer of the accused to the International

   Tribunal.(18)

   article 29 of the statute translates the general duty to cooperate into practical terms by providing that states are obliged to assist the Tribunal in all stages of the proceedings and by enumerating a nonexhaustive list of the types of cooperation that may be requested.(19) The commentary to the statute particularly highlights the binding nature of article 29(2)(e) by explaining that "an order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations."(20)

   The Tribunal's Rules of Procedure and Evidence (the Rules) further spell out the various ways in which states may be called upon, and are obliged, to assist the Tribunal.(21) States may be requested to take provisional measures, such as arresting a suspect, seizing physical evidence, or any other "measures [necessary] to prevent the escape of a suspect or an accused, injury to or intimidation of a victim or witness, or the destruction of evidence."(22) The Rules also provide that the obligations laid down in article 29 of the Tribunal statute "shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist under the national law or extradition treaties of the State concerned."(23) A state's failure to execute an arrest warrant or a transfer order issued by the Tribunal authorizes the President of the Tribunal to notify the Security Council.(24) Similarly, the Security Council may be notified when a state fails to comply with a request for deferral to the Tribunal's competence.(25) In these two instances the Rules explicitly provide the Tribunal with the option of appealing to the Security Council for the enforcement of its requests, i.e., orders.(26) As already mentioned, under the U.N. Charter the Council may take any measures it deems fit in order to maintain or restore international peace and security, including the imposition of sanctions against a recalcitrant state.(27)

   The Security Council reaffirmed Resolution 827 in December 1995,(28) when it endorsed the deployment of a NATO-led Implementation Force (IFOR) to succeed U.N. peacekeepers in Bosnia and Herzegovina after the signing of the Dayton/Paris Peace Agreement (Dayton Peace Agreement or DPA). Security Council Resolution 1031, inter alia, recognizes that "the parties shall cooperate fully" with all entities involved in the implementation of the peace settlement, including the International Tribunal for the Former Yugoslavia.(29) It also obliges "all States [to] cooperate fully" with the Tribunal, and specifies that they shall comply with requests for assistance and orders issued by a Trial Chamber under article 29 of the Tribunal's statute.(30) While the above outlined legal regime clearly establishes the obligation of U.N. member states, including those in the region of the former Yugoslavia, to cooperate with the International Tribunal, their response, as will be shown, has been inadequate to date.

   State cooperation may be translated into essentially two types of activity: the obligation to adopt implementing legislation and to surrender indictees to the Tribunal.(31) The Tribunal has taken steps to encourage and support states in both courses of action. In 1995, the Registrar of the Tribunal drafted Tentative Guidelines for National Implementing Legislation that were annexed to a letter sent by President Cassese of the Yugoslavia...