Documente Academic
Documente Profesional
Documente Cultură
erkezs
Application for Separate Trial, 7
December 1998, 370
Kordic et al. (IT-95-14/2-PT), Decision on
Defence Motion to Clarify, 15
January 1999, 404
Kordic et al. (IT-95-14/2-PT), Order
on Motion to Compel
Compliance by the Prosecutor with
Rules 66(A) and 68, 26 February
1999, 520
Kordic et al. (IT-95-14/2-PT), Decision on
Joint Defence Motion to Dismiss
All Allegations of Planning and
Preparation under Article 7(1) as
Outside the Jurisdiction of the
Tribunal or as Unenforceable, 1
March 1999, 65
Kordic et al. (IT-95-14/2-PT), Decision on
Joint Defence Motion to Dismiss
the Amended Indictment Due
to the Illegal Foundation of
the Tribunal, 1 March
1999, 53, 78
Kordic et al. (IT-95-14/2-PT), Decision on
the Joint Defence Motion to
Dismiss for Lack of Jurisdiction
Portions of the Amended
Indictment Alleging Failure to
Punish Liability, 2 March 1999,
317
TA B L E O F C A S E S xxv
Kordic et al. (IT-95-14/2-PT), Decision on
the Joint Defence Motion to
Dismiss the Amended Indictment
for Lack of Jurisdiction Based on
the Limited Jurisdictional Reach of
Articles 2 and 3, 2 March 1999, 81,
84, 99, 107, 230, 234, 235, 242, 257,
275, 277, 560
Kordic et al. (IT-95-14/2-T), Decision on
Prosecution Request to Proceed by
Deposition, 13 April 1999, 476
Kordic et al. (IT-95-14/2-T), Decision on
the Prosecution Application to
Admit the Tulica Report and
Dossier into Evidence, 29 July
1999, 454, 455
Kordic et al. (IT-95-14/2-AR73.5),
Decision on Application for Leave
to Appeal and Scheduling Order,
28 March 2000, 457
Kordic et al. (IT-95-14/2-PT), Decision
on Defence Motions for
Judgment of Acquittal, 6 April
2000, 119
Kordic et al. (IT-95-14/2-AR73.5),
Decision on Appeal regarding
Statement of a Deceased Witness,
21 July 2000, 454, 456, 457, 462
Kordic et al. (IT-95-14/2-AR73.6),
Decision in the Appeals Chamber
Regarding the Admission into
Evidence of Seven Adavits and one
Formal Statement, 18 September
2000, 81, 477
Kordic et al. (IT-95-14/2-T), Judgment, 26
February 2001, 66, 81, 95, 96,
172, 173, 188, 190, 191, 192, 194,
195, 196, 197, 199, 205, 217, 221,
229, 236, 237, 243, 244, 246, 248,
250, 251, 252, 253, 254, 262, 264,
268, 270, 271, 276, 277, 283, 298,
299, 300, 301, 302, 315, 316, 318,
319, 320, 321, 322, 323, 325, 335,
336, 346, 467, 485, 534, 559,
571, 580
Kordic et al. (IT-95-14/2-AR73.5),
Decision on Appeal regarding
Statement of a Deceased Witness,
21 July 2001, 485, 572
Kordic et al. (IT-95-14/2-A), Decision on
the Application by Mario C
erkez
for Extension of Time to File his
Respondents Brief, 11 September
2001, 513
Kordic et al. (IT-95-14/2-A), Judgment, 17
December 2004, 53, 82, 96, 106,
112, 173, 190, 191, 192, 193,
216, 220, 221, 222, 250, 264,
265, 275, 280, 283, 295, 336,
344, 346, 385, 434, 438, 444,
466, 514, 520, 548, 549, 558,
559, 560, 601
Kordic et al. (IT-95-14/2-A), Joint
Dissenting Opinion of Judge
Schomburg and Judge Guney on
Cumulative Convictions, 17
December 2004, 437
Koroma (SCSL-03-I), Indictment, 3
March 2003, 270
Koroma (SCSL-03-I), Indictment, 7
March 2003, 375
Kovac evic (IT-97-24), 373, 396
Kovac evic (IT-97-24-I), Indictment, 13
March 1997, 177
Kovac evic (IT-97-24-I), Decision on
Prosecutors Request to File an
Amended Indictment, 5 March
1998, 371, 373
Kovac evic (IT-97-24-AR73), Decision
Stating Reasons for Appeals
Chambers Order of 29 May
1998, 374
Kovac evic (IT-97-24-PT), Decision
Refusing Defence Motion
for Subpoena, 23 June
1998, 468
xxvi TA B L E O F C A S E S
Kovac evic (IT-97-24-PT), Decision on
Defence Motion to Reconsider, 30
June 1998, 502
Kovac evic (IT-97-24-AR73), Separate
Opinion of Judge Shahabuddeen, 2
July 1998, 367, 503
Kovac evic (IT-97-24-PT), Decision on
Defence Motion to Strike Counts 4,
5, 8, 9, 10, 11, 13 and 15, 6 July
1998, 108
Kovac evic (IT-01-42/2-I), Decision on
Provisional Release, 2 June
2004, 390
Kovac evic (IT-01-42/2-PT), Order on the
Prosecutors Request for Referral to
National Authorities Under Rule 11
bis, 20 January 2005, 396
Krajisnik (IT-00-39 and IT-00-40),
394, 478
Krajisnik (IT-00-39 and 40-PT),
Judgment on Motion Challenging
Jurisdiction With Reasons, 22
September 2000 101, 317
Krajisnik (IT-00-39 and 40-PT), Decision
on Prosecution Motion for
Clarication in Respect of
Application of Rules 65 ter, 66(B)
and 67(C), 1 August 2001, 400
Krajisnik (IT-00-39 and 40-PT), Decision
on Momcilo Krajisniks Notice of
Motion for Provisional Release, 8
October 2001, 393, 394, 518
Krajisnik (IT-00-39 and 40), Decision on
Prosecutions Motion for Judicial
Notice of Adjudicated Facts and
Admission of Written Statements
of Witnesses Pursuant to Rule 92
bis, 28 February 2003, 492
Krajisnik (IT-00-39 and 40), Decision
Pursuant to Rule 15 bis (D), 16
December 2004, 413, 415
Krause v. Switzerland (App. No. 7986/77),
(1978) 13 DR 73, 519
Krnojelac (IT-97-25), 99, 100, 343, 401
Krnojelac (IT-97-25-PT), Decision on
the Defence Preliminary Motion on
the Form of the Indictment, 24
February 1999, 107, 359, 368,
520, 536
Krnojelac (IT-97-25-T), Order for
Testimony via Video-Conference
Link, 15 January 2001, 475
Krnojelac (IT-97-25-T), Judgment, 15
March 2002, 78, 93, 96, 100,
173, 174, 194, 195, 201, 205, 207,
208, 216, 217, 220, 221, 250, 281,
314, 316, 323, 480, 556, 571,
577, 601
Krnojelac (IT-97-25-A), Judgment, 17
September 2003, 204, 216, 258,
307, 309, 310, 343, 360, 362, 437,
444, 446, 467, 569
Krnojelac (IT-97-25-A), Separate Opinion
of Judge Shahabuddeen, 17
September 2003, 343
Krsmanovic (IT-96-19-Misc.1), Decision
Concerning Serbo-Croatian
Interpretation, 29 March 1997, 532
Krstic (IT-98-33), 64, 165, 167, 168, 169,
170, 175, 179, 184, 200, 204,
314, 324, 373, 436, 457, 519,
569, 572
Krstic (IT-98-33-PT), Binding Order to
the Republika Srpska for the
Production of Documents, 12
March 1999, 468, 469, 487
Krstic (IT-98-33-PT), Decision on the
Defence Preliminary Motion on the
Form of the Indictment, 6 May
1999, 359
Krstic (IT-98-33-T), Judgment, 2 August
2001, 54, 101, 117, 163, 166, 168,
169, 171, 173, 176, 179, 183, 199,
200, 201, 204, 215, 217, 224, 229,
296, 298, 299, 301, 303, 314, 323,
324, 385, 436, 444445, 480, 481,
TA B L E O F C A S E S xxvii
538, 549, 562, 568, 569, 571,
572, 576
Krstic (IT-98-33-A), Judgment, 19 April
2004, 64, 83, 95, 111, 112, 163, 164,
165, 168, 332, 436, 437, 438, 446,
553, 563, 576, 583
Krstic (IT-98-33-A), Partial Dissenting
Opinion of Judge Shahabuddeen,
19 April 2004, 162, 166
Kunarac et al. (IT-96-23 and IT-96-23/1),
202, 237, 342, 498, 553
Kunarac et al. (IT-96-23-PT), Order
Granting Leave to File an Amended
Indictment and Conrming the
Amended Indictment, 19 August
1998, 373
Kunarac et al. (IT-96-23-PT), Decision on
Joinder of Trials, 9 February
2000, 370
Kunarac et al. (IT-96-23-PT and IT-96-
23/1-PT), Decision on Request of
the Accused Radomir Kovac to
Allow Mr Milan Vujin to Appear as
a Co-Counsel Acting Pro Bono, 14
March 2000, 115, 345
Kunarac et al. (IT-96-23-T and IT-96-23/
1-T), Decision on Motion for
Acquittal, 3 July 2000, 264, 431, 432
Kunarac et al. (IT-96-23-T and IT-96-23/
1-T), Judgment, 22 February 2001,
46, 69, 78, 80, 86, 99, 100, 102,
103, 105, 109, 194, 201, 202, 207,
246, 272, 296, 297, 298, 321, 340,
341, 342, 343, 366, 480, 498, 526,
553, 556, 567, 569, 570, 571, 572,
573, 574
Kunarac et al. (IT-96-23/1-A), Judgment,
12 June 2002, 98, 109, 118, 172,
188, 190, 192, 193, 194, 195, 196,
201, 202, 203, 205, 206, 207, 208,
210, 229, 234, 237, 238, 250, 256,
258, 265, 272, 295, 339, 434, 435,
438, 444, 449, 575
Kupres kic (IT-95-16), 89, 221, 283, 332,
344, 345, 359, 375, 385, 444, 454,
461, 483, 538, 559, 590
Kupres kic (IT-95-16-PT), Decision on
Motion by the Prosecutor for
Withdrawal of Indictment Against
Marinko Katava, 19 December
1997, 375
Kupres kic (IT-95-16-T), Decision on
Communication Between the
Parties and their Witnesses, 21
September 1998, 461, 473
Kupres kic (IT-95-16-T), Authorization by
the President of an On-Site Visit
Pursuant to Rule 4 of the Rules of
Procedure and Evidence, 29
September 1998, 590
Kupres kic (IT-95-16-T), Decision, 11
January 1999, 353, 400, 406, 514
Kupres kic (IT-95-16-T), Decision On
Defence Motion to Summon
Witness, 8 February 1999, 469
Kupres kic (IT-95-16-T), Decision On
Prosecution and Defence Requests
to Proceed by Deposition, 11
February 1999, 476
Kupres kic (IT-95-16-T), Decision on
Evidence of the Good Character of
the Accused and the Defence of Tu
Quoque, 17 February 1999, 339,
454
Kupres kic (IT-95-16-T), Decision on the
Request of 24 June 1999 by Counsel
for the Accused to Allow Mr Mirko
Vrdoljak to Examine the Defence
Witnesses, 25 June 1999, 115
Kupres kic (IT-95-16-AR73.3), Decision
on Appeal by Dragan Papic Against
Ruling to Proceed by Deposition,
15 July 1999, 477
Kupres kic (IT-95-16-T), Judgment, 14
January 2000, 78, 81, 102, 103, 105,
107, 111, 190, 191, 194, 199, 215,
xxviii TA B L E O F C A S E S
216, 217, 218, 220, 221, 222, 224,
225, 246, 283, 344, 366, 419, 526,
536, 555, 559, 563, 564, 573,
575, 576
Kupres kic (IT-95-16-A), Decision on the
Motions of Drago Josipovic, Zoran
Kupreskic and Vlatko Kupreskic to
Admit Additional Evidence
pursuant to Rule 115 and for
Judicial Notice to be taken
pursuant to Rule 94(B), 29 May
2001, 483, 492, 493
Kupres kic (IT-95-16-A), Appeal
Judgment, 23 October 2001, 89,
110, 136, 218, 299, 332, 359, 434,
435, 444, 445, 446, 454, 468, 480,
481, 484, 499, 500, 520,
553, 575
Kupres kic (IT-96-16-T), Request by
Zoran Kupreskic, 21 December
2001, 538
Kvoc ka et al. (IT-98-30/1), 207, 208, 212,
272, 303, 312, 390, 475
Kvoc ka et al. (IT-98-30/1-PT), Decision
on Preliminary Motions Filed by
Mladko Radic and Miroslav Kvocka
Challenging Jurisdiction, 1 April
1999, 234
Kvoc ka et al. (IT-98-30-PT), Decision on
Defence Preliminary Motions on
the Form of the Indictment, 12
April 1999, 108, 361
Kvoc ka et al. (IT-98-30-PT and IT-95-8-
PT), Decision on Prosecutors
Motion for Joinder, 19 October
1999, 371
Kvoc ka et al. (IT-98-30-PT), Decision on
Motion for Provisional Release of
Miroslav Kvocka, 2 February
2000, 393
Kvoc ka et al. (IT-98-30-T and IT-95-4-
PT), Decisions on Prosecution
Motion to Join Trials, 14 April
2000, 370, 371
Kvoc ka et al. (IT-98-30/1-T), Decision on
Judicial Notice, 8 June 2000, 493
Kvoc ka et al. (IT-98-30/1-T), Decision on
the Defence of Alibi for the
Accused Zoran Z
igic, 21 July
2000, 400
Kvoc ka et al. (IT-98-30/1-T), Decision on
the Defence Motion Regarding
Concurrent Procedures Before
International Criminal Tribunal for
the former Yugoslavia and
International Court of Justice on
the Same Questions, 5 December
2000, 112
Kvoc ka et al. (IT-98-30/1-T), Decision on
Defence Motions for Acquittal, 15
December 2000, 431
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2
November 2001, 78, 206, 207, 208,
209, 212, 216, 217, 221, 223, 224,
250, 251, 256, 261, 267, 273, 294,
299, 300, 308, 313, 316, 331, 335,
341, 342, 480, 500, 533
Kvoc ka et al. (IT-98-30/1-A), Decision on
Review of Registrars Decision to
Withdraw Legal Aid from Zoran
Z
elebic i case said it was undeniable that acts such as murder, torture, rape and
inhuman treatment are criminal according to general principles of law
recognised by all legal systems.
194
That substantive oVences fall under the
rubric of general principles is conrmed in article 15(2) of the International
Covenant on Civil and Political Rights, which excepts from the nullum crimen
rule punishment of any person for any act or omission which, at the time
when it was committed, was criminal according to the general principles of
law recognized by the community of nations.
195
In dening the crime of rape,
Trial Chambers have looked to general principles, although, again, they have
not always come to the same conclusion.
196
Often, recourse to general principles focuses on procedural and evidentiary
matters. The concept of res judicata was recognised as a general principle of
191
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
1997, para. 25.
192
United States v. Wilhelm List et al. (Hostage case), (1948) 8 LRTWC 34, 11 TWC 757,
p. 49 (LRTWC).
193
Kupres kic (IT-95-16-T), Judgment, 14 January 2000, para. 516, citing United States of
America v. von Leeb et al. (High Command trial), (1948) 12 LRTWC 1, at p. 64 (United
States Military Tribunal).
194
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 180.
195
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, art. 15(2).
Also: Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights), (1955) 213 UNTS 221, art. 7(2). No such
exception exists in the American Convention on Human Rights, (1978) 1144 UNTS 123.
196
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 177; Kunarac et al.
(IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, para. 439.
S O U R C E S O F L AW 105
law in one opinion.
197
Similarly, the maxim audi alteram partem, requiring
that the court hear both sides in a dispute, has been described as a general
principle of law.
198
In dubio pro reo, by which in criminal matters the version
favourable to the accused prevails in case of doubt, has also been recog-
nised.
199
The ICTY Appeals Chamber has ruled that general principles of
law recognised an adjudicative privilege or judicial immunity from compul-
sion to testify in relation to judicial deliberation and certain other related
matters.
200
Reference has also been made to general principles in developing
the law concerning contempt of court.
201
An ICTR Trial Chamber held that
under general principles of law, a person who is no longer under indictment
may not be deprived of his or her freedom and must therefore be released
immediately if he or she is not held for any other cause.
202
Dealing with a
motion for a psychiatric examination in order to determine tness to stand
trial, an ICTY Trial Chamber found material assistance in a number of the
procedural rights provisions of the Statute, as well as in the reference to
general principles of law in the Report of the Secretary-General that accom-
panied the draft statute.
203
But sometimes, judgments have concluded that
there is insuYcient consensus in national legal sources, and that a general
principle cannot be identied.
204
Certainly, it is not always a simple matter to
extract general principles from criminal justice systems, with their widely
diVering approaches, particularly in the eld of procedure.
205
Faced with
disagreement among his colleagues on whether general principles supported
197
Barayagwiza (ICTR-97-19-AR72), Declaration of Judge Rafael Nieto-Navia, 31 March
2000; Ntakirutimana et al. (ICTR-96-10-T and ICTR-96-17-T), Decision on the Prose-
cutors Motion for Judicial Notice of Adjudicated Facts, 22 November 2001, para. 42;
Prosecutor v. Nyiramasuhuko (ICTR-98-42-T), Decision on the Prosecutors Motion for
Judicial Notice and Admission of Evidence, 15 May 2002, para. 23.
198
Jelisic (IT-95-10-A), Separate Opinion of Judge Nieto-Navia, 5 July 2001, para. 4;
Miscellaneous Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga
Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002.
199
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 319; Hadz ihasanovic et al.
(IT-01-47-AR72), Partial Dissenting Opinion of Judge Shahabuddeen, 16 July 2003,
para. 12; Dragan Nikolic (IT-94-2-S), Sentencing Judgment, 18 December 2003, para.
259; Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 753.
200
Delalic et al. (IT-96-21-A), Order on Motion of the Appellant, Esad Landzo, for
Permission to Obtain and Adduce Further Evidence on Appeal, 7 December 1999.
201
Tadic (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 January 2000.
202
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
Indictment, 18 March 1999.
203
Strugar (IT-01-42-T), Decision re the Defence Motion to Terminate Proceedings, 26
May 2004.
204
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 225, para. 25.
205
Simic et al. (IT-95-9-PT), Separate Opinion of Judge David Hunt on Prosecutors
Motion, 27 July 1999, para. 24.
106 E S TA B L I S H M E N T O F T H E T R I B U N A L S
the admissibility of a defence of duress, Judge Li said that [n]ational laws
and practices of various States on this question are also divergent, so that
no general principle of law recognised by civilised nations can be deduced
from them.
206
Subsidiary sources: judicial decisions and academic writing
Judicial decisions and the teachings of the most highly qualied publicists
of the various nations are the two subsidiary means for the determination of
rules of public international law set out in article 38(1)(d) of the Statute of
the International Court of Justice.
207
Here the tribunals depart from this
general statement of the sources of public international law because they
treat the rulings of their own Appeals Chambers as authoritative, and not
merely subsidiary. The statutes do not provide an indication of the role of
precedent in the workings of the tribunals, although this might be consid-
ered as implicit in the existence of a right to appeal verdicts of the Trial
Chambers.
208
However, it is now well accepted that the Trial Chambers are
bound by the ratio decidendi of rulings of the Appeals Chamber.
209
Obviously, authoritative rulings bind lower courts on issues of law, but not
issues of fact.
210
Judicial decisions may also be cited as authority for the
existence of a customary norm.
211
206
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Li, 7 October 1997,
para. 3.
207
Kupres kic (IT-95-16-T), Judgment, 14 January 2000, para. 540.
208
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 99100. Also Aleksovski
(IT-95-14/1-A), Declaration of Judge David Hunt, 24 March 2000.
209
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 112113; Kordic et al. (IT-
95-14/2-PT), Decision on Joint Defence Motion to Dismiss the Amended Indictment
for Lack of Jurisdiction based on the Limited Jurisdictional Reach of Articles 2 and 3, 2
March 1999, para. 12; Kordic et al. (IT-95-14/2-AR108bis), Decision on the Request of
the Republic of Croatia for Review of a Binding Order, 9 September 1999, para. 33;
Branin et al. (IT-99-36-PT), Decision on Application by Momir Talic for the Disqua-
lication and Withdrawal of a Judge, 18 May 2000. On the distinction between ratio
decidendi and obiter dictum, see: Simic et al. (IT-95-9-AR73.6 & AR73.7), Separate
Opinion of Judge David Hunt, 23 May 2003.
210
Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of
the Indictment, 24 February 1999, para. 43; Simic et al. (IT-95-9-PT), Decision on the
Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial
Notice of the International Character of the Conict in Bosnia-Herzegovina, 25 March
1999; Simic et al. (IT-95-9-PT), Decision on (1) Application by Stevan Todorovic to Re-
open the Decision of 27 July 1999, (2) Motion by ICRC to Re-open Scheduling Order of
18 November 1999, and (3) Conditions for Access to Material, 28 February 2000.
211
Erdemovic (IT-96-22-A), Judgment, 7 October 1997, paras. 4145; Tadic (IT-94-1-A),
Judgment, 15 July 1999, paras. 255270; Milos evic (IT-02-54-PT), Decision on Preli-
minary Motions, 8 November 2001, paras. 3233.
S O U R C E S O F L AW 107
Most Trial Chamber judgments now begin with a summary of the applic-
able legal principles, abundantly referenced to decisions of the Appeals
Chambers. However, Trial Chambers are not bound by decisions of other
Trial Chambers, either of the same Tribunal or of one of the other two
tribunals, although decisions on relevant matters are consulted and viewed
as persuasive
212
or instructive.
213
Occasionally, one Trial Chamber will say
bluntly that it is in disagreement with an approach taken by another Trial
Chamber.
214
A unique provision in the SCSL Statute declares that [t]he
judges of the Appeals Chamber of the Special Court shall be guided by the
decisions of the Appeals Chamber of the International Tribunals for the
former Yugoslavia and for Rwanda.
215
But an SCSL Trial Chamber has
cautioned that the expression shall be guided by does not mandate a
slavish and uncritical emulation either precedentially or persuasively, of
the principles and doctrines enunciated by our sister tribunals.
216
The Appeals Chambers themselves should also follow their own previous
decisions, in the interests of certainty and predictability, although remaining
free to depart from them for cogent reasons in the interests of justice.
217
In
Aleksovski, the ICTY Appeals Chamber noted that while stare decisis (binding
precedent) is a concept known to common law courts, and not those of other
legal traditions, including international tribunals, as a matter of practice it is
followed by the courts of continental legal traditions as well as the Interna-
tional Court of Justice and the European Court of Human Rights. The
principles which underpin the general trend in both the common law and
civil law systems, whereby the highest courts, whether as a matter of doctrine
or of practice, will normally follow their previous decisions and will only
depart from them in exceptional circumstances, are the need for consistency,
certainty and predictability, wrote the ICTY Appeals Chamber.
218
The applicable law of the three tribunals diVers slightly, given what are
generally minor discrepancies between the three statutes and the versions of
the RPE. But where the legal norm is the same, the three tribunals have not
212
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, para. 1114; Bagambiki et al.
(ICTR-97-36-I), Decision on the Defence Motion on Defects in the Form of the
Indictment, 24 September 1998, para. 7; Kovac evic (IT-97-24-PT), Decision on Defence
Motion to Strike Counts 4, 5, 8, 9, 10, 11, 13 and 15, 6 July 1998.
213
Kvoc ka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of
the Indictment, 12 April 1999, para. 32.
214
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 719.
215
SCSL Statute, art. 20(3).
216
Sesay (SCSL-03-05-PT), Decision, 23 May 2003, para. 11. Also: Gbao (SCSL-03-09-PT),
Decision, 10 October 2003, para. 31; Norman et al. (SCSL-04-14-AR73), Decision on
Amendment of the Consolidated Indictment, 17 May 2005, para. 46.
217
Aleksovski (IT-95-14/1-A), Judgment, 24 March 2000, paras. 104110.
218
Ibid.
108 E S TA B L I S H M E N T O F T H E T R I B U N A L S
taken diVerent paths. Legal consistency amongst the ICTYand ICTR is ensured
by the existence of what amounts to a common Appeals Chamber. Indeed, this
was one of the reasons why the Security Council decided to link the two
tribunals in this way. A similar connection between the SCSL and the ICTR
was initially considered but later rejected.
219
The Secretary-General said that:
While in theory the establishment of an overarching Appeals Chamber as
the ultimate authority in matters of interpretation and application of
international humanitarian law oVers a guarantee of developing a coher-
ent body of law, in practice, the same result may be achieved by linking the
jurisprudence of the Special Court to that of the International Tribunals,
without imposing on the shared Appeals Chamber the nancial and
administrative constraints of a formal institutional link.
This explains why the Secretary-General proposed that the SCSL Appeals
Chamber would be guided by the decisions of the ICTY and ICTR Appeals
Chambers.
220
An example of the synergy between the diVerent tribunals can be seen in
their eVorts to dene the crime of rape. In the rst conviction for rape by
either tribunal, the ICTR proposed a denition
221
that was then followed by
an ICTY Trial Chamber
222
as well as other ICTR Trial Chambers.
223
Subse-
quently, however, other ICTY Trial Chambers took a diVerent approach,
224
and this was ultimately conrmed by the ICTY Appeals Chamber.
225
As a
result, ICTR Trial Chambers abandoned their earlier case law and followed the
approach of the ICTY Appeals Chamber, describing the latter as being of
persuasive authority.
226
Development of the joint criminal enterprise doctrine
of criminal participation provides another example. This was rst set out in
detail by the ICTYAppeals Chamber, which found it to be implied within the
219
Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, UN Doc. S/2000/915, paras. 4246.
220
Ibid., para. 41.
221
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 597598.
222
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 477479.
223
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 226.
224
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 181, 185; Kunarac et al.
(IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 412.
225
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 128.
226
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 915;
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 357, paras.
345346. However, in a judgment issued after the ICTYAppeals Chamber had, in eVect,
rejected the Akayesu denition, an ICTR Trial Chamber that included Judge Pillay, who
had been a member of the Akayesu bench, ignored Kunarac and simply reaYrmed the
Akayesu denition: Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003,
para. 456.
S O U R C E S O F L AW 109
terms of article 7(1) of the Statute.
227
For several years, the ICTR Trial
Chambers did not rely upon the doctrine, although article 6(1) of the ICTR
Statute has essentially identical terms. Finally, the ICTR Appeals Chamber
ruled: Given the fact that both the ICTY and the ICTR have mirror articles
identifying the modes of liability by which an individual can incur criminal
responsibility, the Appeals Chamber is satised that the jurisprudence of the
ICTY should be applied to the interpretation of Article 6(1) of the ICTR
Statute.
228
The tribunals have also drawn on a broad range of other judicial autho-
rities, including judgments of the European Court of Human Rights, the
United Nations Human Rights Committee, the post-Second World War
tribunals including the International Military Tribunal and the International
Military Tribunal for the Far East, and the worlds major constitutional courts,
including the House of Lords, the Supreme Courts of Canada and the United
States and the French Conseil constitutionnel. Here they are more comfortably
within the parameters of article 38(1)(d) of the Statute of the International
Court of Justice, using the decisions not as binding precedent but as persua-
sive and compelling authorities, deserving of serious consideration. Justifying
reliance on judgments of other tribunals in the area of public international
law, Judge Shahabuddeen, himself a former member of the ICJ, observed that
so far as international law is concerned, the operation of the desiderata of
consistency, stability, and predictability does not stop at the frontiers of the
Tribunal . . . The Appeals Chamber cannot behave as if the general state of
the law in the international community whose interests it serves is none of its
concern.
229
The ICTY Appeals Chamber has said it will take into considera-
tion other decisions of international courts, although it added that it might
not come to the same conclusion, and that it was an autonomous interna-
tional judicial body.
230
But cautionary messages have also been sounded.
According to one ICTY Trial Chamber,
The Tribunal is not bound by precedents established by other interna-
tional criminal courts such as the Nuremberg or Tokyo tribunals, let alone
by cases brought before national courts adjudicating international crimes.
Similarly, the Tribunal cannot rely on a set of cases, let alone on a single
precedent, as suYcient to establish a principle of law: the authority of
precedents (auctoritas rerum similiter judicatarum) can only consist in
evincing the possible existence of an international rule. More specically,
precedents may constitute evidence of a customary rule in that they are
227
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 193.
228
Ibid., para. 468.
229
Semanza (ICTR-97-20-A), Separate Opinion of Judge Shahabuddeen, 31 May 2000,
para. 25.
230
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 24.
110 E S TA B L I S H M E N T O F T H E T R I B U N A L S
indicative of the existence of opinio iuris sive necessitatis and international
practice on a certain matter, or else they may be indicative of the emer-
gence of a general principle of international law. Alternatively, precedents
may bear persuasive authority concerning the existence of a rule or
principle, i.e. they may persuade the Tribunal that the decision taken on
a prior occasion propounded the correct interpretation of existing law.
Plainly, in this case prior judicial decisions may persuade the court that
they took the correct approach, but they do not compel this conclusion by
the sheer force of their precedential weight. Thus, it can be said that the
Justinian maxim whereby courts must adjudicate on the strength of the
law, not of cases (non exemplis, sed legibus iudicandum est) also applies to
the Tribunal as to other international criminal courts.
231
The Trial Chamber added that there should be a stricter level of scrutiny to
national decisions than to international judgments, as the latter are at least
based on the same corpus of law as that applied by international courts,
whereas the former tend to apply national law, or primarily that law, or else
interpret international rules through the prism of national legislation.
232
The International Court of Justice is described in the Charter of the United
Nations as the organisations principal judicial organ.
233
It has been argued that
there is an implied hierarchy, and that as ad hoc United Nations tribunals the
ICTY, ICTR and SCSL are bound to comply with legal determinations of the
International Court of Justice. Early on, however, the ICTYopenly departed from
an important ICJ precedent.
234
It rejected the idea of a hierarchical relationship
with the ICJ.
235
There is also the potential for conicting rulings between the ICJ
and the ICTY not only on matters of law but on factual issues. For example, the
ICTY Appeals Chamber has determined that genocide was committed in the
former Yugoslavia,
236
while the same question is pending, but not yet adjudi-
cated, before the ICJ in two cases, led by Bosnia and Herzegovina
237
and by
231
Kupres kic (IT-95-16-T), Judgment, 14 January 2000, para. 540.
232
Ibid., para. 542.
233
Charter of the United Nations, art. 92.
234
See below at pp. 243245.
235
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 24. See: Theodor Meron,
Classication of Armed Conict in the Former Yugoslavia: Nicaraguas Fallout, (1998)
92 American Journal of International Law 236; Mark A. Drumbl, Looking Up, Down
and Across: The ICTYs Place in the International Legal Order, (2003) 37 New England
Law Review 1037; Theodore Christakis, Les relations entre la CIJ et le Tribunal penal
international pour lex-Yougoslavie: les premie`res ssures a` lunite du droit?, (1996) 1
Lobservateur des Nations Unies 45.
236
Krstic (IT-98-33-A), Judgment, 19 April 2004.
237
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Application, 20 March
1993. See: Peter H. F. Bekker and Paul C. Szasz, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, (1997) 91 American Journal of
S O U R C E S O F L AW 111
Croatia.
238
A defence argument that the ICTY should suspend determina-
tion of an issue because the same or a similar matter is before the ICJ was
dismissed.
239
As for the other subsidiary source, the teachings of the most highly
qualied publicists of the various nations, rather like the International Court
of Justice the tribunals do not cite academic writing very frequently, although
this is more common in individual or dissenting opinions. For example, in
2004, the ICTY and ICTR Appeals Chambers issued six major and lengthy
judgments on appeal from convictions, consisting of somewhat more than
1,000 pages in total. Only sixteen diVerent academic authorities are cited in
this corpus of jurisprudence.
240
Sometimes a list of academic writing con-
sulted by the Chamber is produced at the end of the judgment, but it
invariably consists of a handful of works. Many of the citations are not to
the teachings at all, but merely assertions of facts whose authority can be
found in such volumes as the Commentaries on the Geneva Conventions.
Several of the judges can themselves be described as highly qualied pub-
licists. There is no doubt, however, that even if reference to academic sources
is not that common, the judges and their assistants consult these authorities in
the preparation of their opinions.
Inherent or implied powers
The tribunals consider that they also have inherent powers. As Judge Shaha-
buddeen has explained, there may be need to take account of the inherent
competence of a judicial body, whether civil or criminal, to regulate its own
International Law 121; Ben GaYkin, The International Court of Justice and the Crisis in
the Balkans: Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), 32 ILM 1599 (1993), (1995) 17
Sydney Law Review 458; Christine Gray, Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia
and Montenegro)), (1994) 43 International and Comparative Law Quarterly 704; Sandrine
Maljean-Dubois, LaVaire relative a` lapplication de la Convention pour la pre vention et la
repression du crime de genocide (Bosnie-Herzegovine c. Yougoslavie), Arret du 11 juillet
1996, exceptions preliminaires, (1996) 42 Annuaire franc ais de droit international 357.
238
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Yugoslavia), Application, 2 July 1999.
239
Kvoc ka et al. (IT-98-30/1-T), Decision on the Defence Motion Regarding Concurrent
Procedures Before International Criminal Tribunal for the Former Yugoslavia and
International Court of Justice on the Same Questions, 5 December 2000.
240
Vasiljevic (IT-98-32-A), Separate and Dissenting Opinion of Judge Shahabuddeen, 25
February 2004: no references; Krstic (IT-98-33-A), Judgment, 19 April 2004: six refer-
ences; Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004: six references; Blas kic (IT-95-
14-A), Judgment, 29 July 2004: two references; Ntakirutimana et al. (ICTR-96-10-A and
ICTR-96-17-A), Judgment, 13 December 2004: no references; Kordic et al. (IT-95-14/
2-A), Judgment, 17 December 2004: ve references.
112 E S TA B L I S H M E N T O F T H E T R I B U N A L S
procedure in the event of silence in the written rules, so as to assure the
exercise of such jurisdiction as it has, and to full itself, properly and eVec-
tively, as a court of law. Without that residual competence, no court can
function completely.
241
According to the ICTY Appeals Chamber, the Inter-
national Tribunal must possess the power to make all those judicial determi-
nations that are necessary for the exercise of its primary jurisdiction. This
inherent power inures to the benet of the International Tribunal in order that
its basic judicial function may be fully discharged and its judicial role safe-
guarded.
242
Some of this authority is perhaps better described as implied, rather than
inherent.
243
This is the case when the power is derived from provisions in the
statutes or the RPE. For example, Judge Hunt referred to the inherent power
of the Tribunal, deriving from its judicial function, to control its proceedings
in such a way as to ensure that justice is done. He was referring to matters of
practice that arise in the course of proceedings whose primary purpose is to
ensure that trials and appeals proceed fairly and expeditiously.
244
The statutes
give the tribunals the power to devise their own rules of procedure and
evidence. Therefore, if a power is derived from Rule 54 (At the request of
either party or proprio motu, a Judge or a Trial Chamber may issue such
orders, summonses, subpoenas, warrants and transfer orders as may be
necessary for the purposes of an investigation or for the preparation or
conduct of the trial),
245
it is implied rather than inherent.
246
In an application
from family members of a suspect whose assets had been frozen in France, the
ICTR Appeals Chamber said that despite the silence of the Statute and the
RPE, where action was taken by the Prosecutor acting pursuant to a provision
of the RPE, the Judges, through the appropriate mechanism of a Trial
Chamber, retain a responsibility to review the working of such action, parti-
cularly where hardship is alleged by a non-party.
247
241
Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999,
p. 17; Nsengiyumva (ICTR-96-12-A), Dissenting Opinion of Judge Shahabuddeen, 3
June 1999.
242
Blas kic (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 33.
243
Ibid., para. 25, fn. 27.
244
Delalic et al. (IT-96-21-A), Separate Opinion of Judge Hunt, 22 April 1999, para. 3.
245
ICTY RPE, Rule 54; ICTR RPE, Rule 54; SCSL RPE, Rule 54 (the SCSL RPE replace the
Latin term proprio motu with of its own motion).
246
On the distinction, see: Michael Bohlander, International Criminal Tribunals and Their
Power to Punish Contempt and False Testimony, (2001) 12 Criminal Law Forum 91.
247
Miscellaneous Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga
Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002.
But see: Miscellaneous Kabuga Family-01-A, Declaration of Judge Shahabuddeen, 22
November 2002.
S O U R C E S O F L AW 113
The ICTY Appeals Chamber in Tadic suggested a distinction between
inherent and implied powers. It said that a Trial Chamber could order the
disclosure of defence witness statements after examination-in-chief of the
witness. According to the Appeals Chamber,
[r]ather than deriving from the sweeping provisions of Sub-rule 89(B),
this power is inherent in the jurisdiction of the International Tribunal, as
it is within the jurisdiction of any criminal court, national or interna-
tional. In other words, this is one of those powers mentioned by the
Appeals Chamber in the Blas kic (Subpoena) decision which accrue to a
judicial body even if not explicitly or implicitly provided for in the statute
or rules of procedure of such a body, because they are essential for the
carrying out of judicial functions and ensuring the fair administration of
justice.
248
An example of a truly inherent power is the authority to punish contempt
of court and false testimony.
249
The statutes give the tribunals jurisdiction
over serious violations of international humanitarian law,
250
and do not
provide for any power to create new oVences, such as contempt of court or
perjury.
251
Rule 77(E) refers to inherent powers: Nothing in this Rule aVects
the inherent power of the Tribunal to hold in contempt those who knowingly
and wilfully interfere with its administration of justice.
252
According to the
ICTY Appeals Chamber:
248
Tadic (IT-94-1-A), Judgment, 15 July 1999, paras. 318326.
249
Delalic et al. (IT-96-21-A), Decision of the President on the Prosecutors Motion for
the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, 11
November 1996, paras. 2628; Blas kic (IT-95-14-AR108bis), Judgment on the Request of
the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997,
29 October 1997, para. 59; Tadic (IT-94-1-AR77), Judgment on Allegations of Contempt
Against Prior Counsel, Milan Vujin, 31 January 2000, para. 26; Aleksovski, (IT-95-14/
1-AR77), Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May
2001, para. 30; Simic et al. (IT-95-9-PT), Judgment on Allegations of Contempt against
an Accused and his Counsel, 30 June 2000; Branin (IT-99-36-R77), Concerning
Allegations Against Milka Maglov, Decision on Motion for Acquittal Pursuant to Rule
98bis, 19 March 2004, para. 15.
250
As well as, in the case of the SCSL, certain serious crimes under national law.
251
See: Andre Klip, Witnesses before the International Criminal Tribunal for the Former
Yugoslavia, (1996) 67 Revue internationale de droit penal 267, at pp. 276277; Andre
Klip, Tadic , Decisions Relating to the False Testimony of Opacic, in Andre Klip and
Goran Sluiter, eds., Annotated Leading Cases of International Tribunals, vol. I, Antwerp:
Intersentia, 1999, pp. 214216, at p. 214; William A. Schabas, Le Re`glement de preuve et
de procedure du Tribunal international charge de poursuivre les personnes presumees
responsables de violations graves du droit international humanitaire commises sur le
territoire de lex-Yougoslavie depuis 1991, (19931994) 8 Revue quebecoise de droit
international 112.
252
ICTY RPE, Rule 77(E); ICTR RPE, Rule 77(A); SCSL RPE, Rule 77(A).
114 E S TA B L I S H M E N T O F T H E T R I B U N A L S
The Tribunal does, however, possess an inherent jurisdiction, deriving
from its judicial function, to ensure that its exercise of the jurisdiction
which is expressly given to it by that Statute is not frustrated and that its
basic judicial functions are safeguarded. As an international criminal
court, the Tribunal must therefore possess the inherent power to deal with
conduct which interferes with its administration of justice. The content of
that inherent power may be discerned by reference to the usual sources of
international law.
253
The ICTY Appeals Chamber has ruled that the Tribunal does not have the
inherent power to take enforcement measures against States.
254
However, the
Tribunal is endowed with the inherent power to make a judicial nding
concerning a States failure to observe the provisions of the Statute or the
Rules. It also has the power to report this judicial nding to the Security
Council.
255
Inherent powers have been invoked as justication for a departure from the
RPE. For example, an ICTY Trial Chamber considered it could make an
exception to the rule that the only persons who may appear before it are
those who meet the requirements that must ordinarily be fullled in order to
be admitted as counsel before the Tribunal.
256
Similarly, another Trial Cham-
ber said its inherent power to control proceedings was adequate foundation to
refuse audience to counsel, despite the fact he was qualied under Rule 44(A)
of the RPE, because he was for other reasons not a t and proper person to
appear before the Tribunal.
257
However, according to the ICTY Appeals
Chamber, [t]he only inherent power that a Trial Chamber has is to ensure
that the trial of an accused is fair; it cannot appropriate for itself a power
which is conferred elsewhere.
258
The Appeals Chamber was considering the
powers of the Trial Chamber to review a decision by the Registrar refusing to
withdraw counsel who had been assigned to the accused. The Appeals Cham-
ber took the view that unless the application, which was normally within the
253
Tadic (IT-94-1-A-R77), Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 January 2000, para. 13 (references omitted).
254
Blas kic (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 25.
255
Ibid., para. 33.
256
Kupres kic et al. (IT-95-16-T), Decision on the Request of 24 June 1999 by Counsel for
the Accused to Allow Mr Mirko Vrdoljak to Examine the Defence Witnesses, 25 June
1999.
257
Kunarac et al. (IT-96-23-PT and IT-96-23/1-PT), Decision on Request of the Accused
Radomir Kovac to Allow Mr Milan Vujin to Appear as a Co-Counsel Acting Pro Bono,
14 March 2000, para. 13.
258
Blagojevic (IT-02-60-AR73.4), Public and Redacted Reason for Decision on Appeal by
Vidoje Blagojevic to Replace his Defence Team, 7 November 2003, para. 7.
S O U R C E S O F L AW 115
competence of the Registrar, raised issues of fairness of the trial, the Trial
Chamber should not determine the matter.
259
The Appeals Chamber has conrmed that Trial Chambers have the inher-
ent power to recommend a minimum sentence, subject to the requirements of
fundamental fairness.
260
Another example in sentencing of the application of
inherent powers is the early release of a convicted person who has not yet been
sent to a national prison to begin serving a sentence. The situation can arise
when a sentence imposed at trial is reduced on appeal, so that the time
actually served in preventive detention in the Tribunals own detention unit
is such a substantial proportion of the nal sentence imposed that it is fair and
just to release the prisoner immediately. Were the prisoner to be transferred to
a national prison, he or she would be subject to immediate release. In such
cases, the President of the ICTY has relied on inherent powers and authorised
early release.
261
Human rights law
Contemporary human rights law is derived from all of the sources of public
international law, and principally from treaty law and custom. Although dealt
with under those headings previously in this chapter, certain special remarks
are in order. The statutes refer to international human rights law when they
require that judges be selected for their experience in international law,
including international humanitarian law and human rights law.
262
The
tribunals are often thought of within the rubric of international humanitarian
law, in part because of the reference to this concept in the statutes themselves.
But it is also reasonable to view them as being bodies for the enforcement of
international human rights law. Although the war crimes provisions clearly
belong to international humanitarian law, this is not nearly as evident with
respect to genocide and crimes against humanity, especially once it is
acknowledged that the latter two crimes can be committed in peacetime.
The etymology of crimes against humanity associates it with human rights
law. As for genocide, it is a concept intended to develop an early generation of
259
Milos evic (IT-02-54-T), Decision on Assigned Counsels Motion for Withdrawal, 7
December 2004, para. 10.
260
Tadic (IT-94-1-Abis), Judgment in Sentencing Appeals, 26 January 2000.
261
For the early release of Blaskic, whose sentence was reduced from forty-ve years to nine
years, of which he had served eight, see: Eleventh Annual Report of the ICTY, UN Doc.
A/59/215-S/2004/627, annex, para. 230. Also: Sikirica et al. (IT-95-8-S), Order of the
President on the Early Release of Dragan Kolundzija, 5 December 2001.
262
ICTY Statute, art. 13(1); ICTR Statute, art. 12(1); SCSL Statute, art. 13(2). The
SCSL Statute also refers to human rights standards in art. 7(1), concerning juvenile
oVenders.
116 E S TA B L I S H M E N T O F T H E T R I B U N A L S
human rights instruments, the minorities treaties, as judgments of the tribu-
nals have held.
263
The applicable law provision in the Rome Statute makes direct reference to
international human rights law: The application and interpretation of law
pursuant to this article must be consistent with internationally recognized
human rights, and be without any adverse distinction founded on grounds
such as gender, as dened in article 7, paragraph 3, age, race, colour, language,
religion or belief, political or other opinion, national, ethnic or social origin,
wealth, birth or other status.
264
Nevertheless, there is perhaps an inevitable
tension between the human rights law dimension of the tribunals and their
inherently repressive nature. Traditionally, human rights law has been princi-
pally concerned with the rights of the accused. All three statutes contain a
provision entitled Rights of the accused that is drawn from article 14 of the
International Covenant on Civil and Political Rights.
265
In one of the rst
motions to be adjudicated by the ICTY, a defence lawyer contested the
Prosecutors application for witness anonymity on the basis of rather unequi-
vocal precedents from the European Court of Human Rights. The Trial
Chamber said that the human rights rulings of the European Court were
meant to apply to ordinary criminal jurisdictions, whereas the ICTY was, in
certain respects, comparable to a military tribunal, which often has limited
rights of due process and more lenient rules of evidence.
266
This unfortunate
statement is, thankfully, rather isolated.
An example of the positive and constructive role that international human
rights law may play in the work of the tribunals is provided by Judge Pocars
dissenting opinion in Rutaganda. Judge Pocar is himself a man of impeccable
human rights credentials, having been elected to the ICTY after serving for
more than a decade on the United Nations Human Rights Committee, a body
that he also chaired. Judge Pocar argued that the ICTY Statute should be
interpreted in accordance with general international human rights law, and
more specically the International Covenant on Civil and Political Rights.
Article 14(5) of the Covenant, which was not reproduced in the ICTY Statute,
recognises the right to have a conviction and sentence reviewed by a higher
tribunal. Judge Pocar was concerned that this would be denied if the Appeals
Chamber reversed an acquittal, rather than refer the case back to a Trial
Chamber for a new determination. He wrote:
Furthermore, the ICCPR [International Covenant on Civil and Political
Rights] is not only a treaty between States which have ratied it, but, like
263
Krstic (IT-98-33-T), Judgment, 2 August 2001, paras. 555556.
264
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 21(3).
265
ICTY Statute, art. 21; ICTR Statute, art. 20; SCSL Statute, art. 17.
266
Tadic (IT-94-1-T), Decision on the Prosecutors Motion Requesting Protective Measures
for Victims and Witnesses, 10 August 1995, para. 28.
S O U R C E S O F L AW 117
other human rights treaties, also a document that was adopted unan-
imously as a resolution by the General Assembly. As such, it also
expresses the view of the General Assembly as to the principles enshrined
therein. It would therefore have to be assumed that the Security Council,
as a UN body, would act in compliance with that declaration of principles
of the General Assembly. Only a clear-cut decision to depart from it would
lead to a diVerent conclusion. But in this case, as mentioned, the intention
of the Security Council to comply with the ICCPR was explicitly demon-
strated through its approval of the Report of the Secretary General. It does
not matter, in this context, that the principle contained in Article 14(5)
has been subjected to reservations by a few States which have ratied the
ICCPR out of 149 State parties, only about 10 have expressed reserva-
tions, and some of these reservations have a diVerent scope as compared
with the case at issue or that other regional legal instruments such as the
Seventh Protocol to the European Convention on Human Rights may
have taken a diVerent approach.
267
Human rights law is concerned essentially with the procedure of criminal
justice, but it is not without relevance to substantive criminal law. The
tribunals have referred to human rights law in support of the universal
criminalisation of rape, noting the recognition of the seriousness of the
oVence in the jurisprudence of international bodies, including the European
Commission on Human Rights and the Inter-American Commission on
Human Rights.
268
In Erdemovic , Judge Cassese said that as the right to life
is the most fundamental human right, the rule demands that the general
requirements for duress be applied particularly strictly in the case of killing
of innocent persons.
269
National criminal law
National criminal law is a distinct source of applicable law, closely related to
but autonomous from general principles of law. In his dissent in Erdemovic ,
Judge Cassese said that [r]eliance on legal notions or concepts as laid down
in a national legal system can only be justied if international rules make
explicit reference to national law or if such reference is necessarily implied
by the very content and nature of the concept.
270
National criminal law is
invoked very much in the sense of comparative criminal law, and in this
respect the ad hoc tribunals are not very diVerent from those national courts
267
Rutaganda (ICTR-96-3-A), Dissenting Opinion of Judge Pocar, 26 May 2003.
268
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 195.
269
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
1997, para. 45 (emphasis in the original).
270
Ibid. See also: Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 178.
118 E S TA B L I S H M E N T O F T H E T R I B U N A L S
that consult the case law of other jurisdictions for guidance and inspiration
on diYcult questions.
271
Along these lines, the ICTY Appeals Chamber
referred to national laws concerning common purpose complicity in order
to show that the concept had an underpinning in many national systems.
272
In Kordic and C
bo
Akademi University, 2004, at p. 176.
120
UN Doc. S/2000/1063, appendix, para. 45.
121
Naomi Roht-Arriaza, Reparations Decisions and Dilemmas, (2004) 27 Hastings Inter-
national and Comparative Law Review 157, at p. 184.
122
UN Doc. S/2000/1063, appendix; UN Doc. S/2000/1198, annex. Also: Eighth Annual
Report of the ICTY, UN Doc. A/56/352-S/2001/865, annex, para. 49; Sixth Annual
Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 84.
123
Roht-Arriaza, Reparations Decisions and Dilemmas, at p. 158. Note that Security
Council Resolution 827 (1993), which adopted the ICTY Statute, declares that the
work of the International Tribunal shall be carried out without prejudice to the right of
the victims to seek, through appropriate means, compensation for damages incurred as
a result of violations of international humanitarian law.
150 J U R I S D I C T I O N
5
Subject-matter jurisdiction generally
The subject-matter jurisdiction (or jurisdiction ratione materiae) consists of
the crimes that the tribunals are authorised to prosecute. The ICTY has four
such provisions, entitled: Grave breaches of the Geneva Conventions of 1949
(art. 2), Violations of the laws or customs of war (art. 3), Genocide (art. 4)
and Crimes against humanity (art. 5). The ICTR has three provisions, entitled:
Genocide (art. 2), Crimes against humanity (art. 3) and Violations of article 3
common to the Geneva Conventions and of Additional Protocol II (art. 4).
The SCSL has four provisions, entitled: Crimes against humanity (art. 2),
Violations of article 3 common to the Geneva Conventions and of Additional
Protocol II (art. 3), Other serious violations of international humanitarian law
(art. 4) and Crimes under Sierra Leonean law (art. 5).
Two categories of crimes are common to the three statutes, crimes against
humanity and war crimes. While each of the statutes has a provision entitled
crimes against humanity, the actual denition diVers from one instrument to
the other. Each also contains provisions that t broadly within the generic
category of war crimes, although they are titled and dened somewhat
diVerently in the three statutes. The ICTY and ICTR statutes contain a
provision concerning genocide, but this category of crime is omitted in the
Statute of the SCSL. Judges at the ad hoc tribunals have sometimes described
the subject-matter jurisdiction of the courts as encompassing universally
condemned oVences.
1
Indeed, the judges have capitalised the three words,
suggesting that they may be attempting to coin a new term subsuming
genocide, crimes against humanity and war crimes. Citing Judge Rosalyn
Higgins of the International Court of Justice, the Appeals Chamber has said
that Universally Condemned OVences are a matter of concern to the inter-
national community as a whole.
2
The term itself may not be ideal, because
1
Dragan Nikolic (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality
of Arrest, 5 June 2003, paras. 24, 25.
2
Ibid., paras. 24, 25, citing Rosalyn Higgins, Problems and Process (International Law and
How We Use It), Oxford: Clarendon Press, 1995, p. 72.
151
ordinary crimes like murder or rape would also be universally condemned.
Yet these are not within the jurisdiction of the tribunals unless they amount to
forms of murder or rape that also meet the contextual elements of war crimes,
crimes against humanity or genocide. Thus, although the Appeals Chamber
may be right to say that all crimes within its jurisdiction are universally
condemned, the opposite is not correct: not all universally condemned
crimes justify international prosecution. A better approach would be to
describe the subject-matter jurisdiction (i.e., the crimes that the tribunals
are authorised to prosecute) as being international crimes.
The SCSL also has a peculiar jurisdiction over certain crimes under Sierra
Leonean law. These consist of oVences relating to the abuse of girls under the
1926 Prevention of Cruelty to Children Act and oVences relating to the
wanton destruction of property, and in particular arson, under the 1861
Malicious Damage Act.
3
This is of purely theoretical interest, because no
indictments have invoked these provisions.
The tribunals have also created provisions for the prosecution of contempt
of court
4
and perjury,
5
deeming this to be the exercise of an inherent power
necessary for the proper administration of justice. According to the ICTY
Appeals Chamber, although [t]here is no mention in the Tribunals Statute of
its power to deal with contempt, it possesses an inherent jurisdiction, deriv-
ing from its judicial function, to ensure that its exercise of the jurisdiction
which is expressly given to it by that Statute is not frustrated and that its basic
judicial functions are safeguarded.
6
The nature of international crimes
The three institutions are often colloquially described as war crimes tribunals.
But of course the oVences within the subject-matter jurisdiction of the courts
go well beyond war crimes. According to article 1 of the 1948 Convention on
the Prevention and Punishment of the Crime of Genocide, genocide is a crime
that may be committed in either war or peace, so it is incorrect to describe it
as a war crime. Similarly, it is generally agreed that under customary interna-
tional law, crimes against humanity can also be committed in time of peace,
although in the past this was not always the case.
7
Yet article 1 of each of the
3
SCSL Statute, art. 5.
4
ICTY RPE, Rule 77; ICTR RPE, Rule 77; SCSL RPE, Rule 77.
5
ICTY RPE, Rule 91; ICTR RPE, Rule 91; SCSL RPE, Rule 91.
6
Tadic (IT-94-1-AR77), Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 January 2000, para. 13.
7
Tadic (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, paras. 140141.
152 J U R I S D I C T I O N
statutes of the three tribunals says they have the power to prosecute serious
violations of international humanitarian law. Given that crimes within the
jurisdiction of the tribunals may be committed in time of peace, it seems
mistaken to describe genocide and crimes against humanity as serious viola-
tions of international humanitarian law. This is either careless employment of
the term international humanitarian law, or else some neologistic usage
of the term that goes beyond the traditional scope of war crimes and the
law of armed conict to encompass serious crimes under international law
aimed at the protection of fundamental human rights. Yet it is of interest that
the only reference to international humanitarian law in the Rome Statute is in
a provision dealing with qualications of judges.
8
Certainly it seems clear
enough that the Security Council intended the ICTR to have jurisdiction over
periods in 1994 when there was clearly no armed conict. As for the SCSL, it is
specically mandated to prosecute individuals who may have threatened the
establishment of and implementation of the peace process in Sierra Leone,
9
which also implies crimes that are not committed in time of armed conict.
On other occasions, the tribunals have noted that subject-matter jurisdic-
tion is exercised over oVences that do not aVect the interests of one State
alone but shock the conscience of mankind.
10
Citing the Supreme Military
Tribunal of Italy, in a post-Second World War case, the ICTY Appeals
Chamber noted:
These norms [concerning crimes against laws and customs of war], due to
their highly ethical and moral content, have a universal character, not a
territorial one . . . The solidarity among nations, aimed at alleviating in
the best possible way the horrors of war, gave rise to the need to dictate
rules which do not recognise borders, punishing criminals wherever they
may be.
11
Similarly, in the Eichmann case, the Supreme Court of Israel wrote:
[T]hese crimes constitute acts which damage vital international interests;
they impair the foundations and security of the international community;
they violate the universal moral values and humanitarian principles that
lie hidden in the criminal law systems adopted by civilised nations. The
underlying principle in international law regarding such crimes is that the
individual who has committed any of them and who, when doing so, may
8
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 36(b)
(ii). Article 21(1)(b) of the Rome Statute refers to the established principles of the
international law of armed conict.
9
SCSL Statute, art. 1(1).
10
Tadic (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 57.
11
Ibid., para. 57 (citing Sup. Mil. Trib., Italy, 1950; unoYcial transcript).
S U B J E C T- M AT T E R J U R I S D I C T I O N G E N E R A L L Y 153
be presumed to have fully comprehended the heinous nature of his act,
must account for his conduct . . . Those crimes entail individual criminal
responsibility because they challenge the foundations of international
society and aVront the conscience of civilised nations . . . [T]hey involve
the perpetration of an international crime which all the nations of the
world are interested in preventing.
12
Long before Nuremberg, international law began dening international
crimes. The rst of these included piracy, traYcking in persons (once called
white slavery), and trade in drugs and obscene materials. The consequence of
their recognition as international crimes was an acknowledgement of univer-
sal jurisdiction; that is, any State could prosecute the oVence, regardless of
where it was committed. The rationale for this was explained by Judge Moore
of the Permanent Court of International Justice in Lotus: As the scene of the
pirates operations is the high seas, which is not the right or duty of any nation
to police, he is denied the protection of the ag which he may carry, and is
treated as an outlaw, as the enemy of all mankind hostis humani generis
whom any nation may in the interest of all capture and punish.
13
If there is a
common denominator, it resides more in the international nature of the
crime. Such oVences were often committed on the high seas, on territory
belonging to no State in particular. Dening them as international crimes
helped to justify States exercising jurisdiction when they would not normally
do so, and also to promote international cooperation in the repression of such
oVences.
The drive to recognise that genocide, crimes against humanity and war
crimes were also international crimes had a somewhat diVerent basis, however,
and this was far less easy to achieve. The original draft resolution on
genocide in the United Nations General Assembly, proposed in 1946, said:
Whereas the punishment of the very serious crime of genocide when
committed in time of peace lies within the exclusive territorial jurisdiction
of the judiciary of every State concerned, while crimes of a relatively lesser
importance such as piracy, trade in women, children, drugs, obscene pub-
lications are declared as international crimes and have been made matters
of international concern.
14
But this clause was dropped in the nal draft,
15
12
A.-G. Israel v. Eichmann, (1968) 36 ILR 277 (Supreme Court of Israel), pp. 291293
(cited in Tadic , ibid., para. 57).
13
SS Lotus (France v. Turkey), [1927] PCIJ Ser. A (Judgments) No. 10 (Judgment No. 9)
(1929).
14
UN Doc. A/BUR/50. The General Assembly decided to include the point in its agenda
(UN Doc. A/181), and the matter was referred to the Sixth Committee (UN Doc. A/C.6/
64).
15
GA Res. 96(I).
154 J U R I S D I C T I O N
and the principle of universal jurisdiction over genocide was not admitted
in the subsequent Convention of 1948.
Since then, the idea that crimes are international because of their intrinsic
horror, rather than because their repression requires an international eVort,
has become more prominent. This approach is reected in an important
American case: The universality principle is based on the assumption that
some crimes are so universally condemned that the perpetrators are the
enemies of all people. Therefore, any nation which has custody of the perpe-
trators may punish them according to its law applicable to such oVences.
16
But this explanation has its aws. Crimes such as murder, rape and sexual
abuse of children are also universally condemned, yet there is no drive for
their elevation to the status of international crimes. The common denomi-
nator of crimes is much larger than the three categories commonly recognised
as international crimes within this new paradigm, namely, genocide, crimes
against humanity and war crimes.
There may be another explanation why genocide, crimes against humanity
and war crimes require international criminalisation: generally, they are
crimes committed by States or, rather, individuals who hold positions of
leadership and control within States. For this reason, such crimes usually
escape prosecution by the national court that would ordinarily exercise jur-
isdiction. Other crimes that are universally condemned, such as murder, rape
and sexual abuse of children, do not require internationalisation because
the State that normally exercises jurisdiction is almost invariably willing to
prosecute.
There are four important consequences that result from the characterisa-
tion of acts as an international crime: they can be prosecuted retroactively;
they can be prosecuted by courts that would not normally exercise jurisdic-
tion; they impose duties upon States with respect to mutual legal assistance in
the investigation, extradition and prosecution of such oVences; traditional
rules concerning immunity of heads of State and other senior oYcials are
relaxed.
Retroactive prosecution, which is discussed in chapter 2,
17
operates as an
exception to the general rule that prevents a person being tried for an oVence
that was not prohibited by law at the time of its commission. There is a long
history of this norm in national constitutions, which was recognised in
international law as early as 1935 in the Permanent Court of International
Justice case concerning legislative decrees in Danzig.
18
When challenged by the
16
Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir., 1985).
17
Above, pp. 6067.
18
Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City,
Advisory Opinion [1935] PCIJ 2, Ser. A/B, No. 65 (4 December 1935), p. 51.
S U B J E C T- M AT T E R J U R I S D I C T I O N G E N E R A L L Y 155
Nazi defendants who argued that crimes against peace had never before been
punishable, the Allied judges at Nuremberg tried to demonstrate that acts of
aggression had indeed been universally condemned in past decades. The
Nuremberg judges also conceded that such crimes should be punished
because it would violate principles of justice to let the oVenders go free,
19
but this argument is today less tenable because of the quite clear terms of
international human rights law: No one shall be held guilty of any penal
oVence on account of any act or omission which did not constitute a penal
oVence, under national or international law, at the time when it was com-
mitted.
20
In other words, it is not enough to argue that the act was universally
abhorrent and that it would be unjust not to punish oVenders. There
must now always be a demonstration that the act itself was condemned by
international law.
With respect to prosecution by the three tribunals, the debate about retro-
activity has been signicant for two reasons. First, most of the crimes within
the jurisdiction of the tribunals had not previously been incorporated into
national law. Rwanda, for example, while it had ratied the Genocide Con-
vention during the 1970s, never took the additional step of enacting amend-
ments to its Penal Code in order to make the crime of genocide punishable
under Rwandan law and to provide penalties for its commission. Indeed, until
the beginning of the twenty-rst century, when large numbers of States
incorporated the international crimes of genocide, crimes against humanity
and war crimes into their national judicial systems in order to comply with
the provisions of the Rome Statute of the International Criminal Court, the
domestic recognition of international crimes was a very incomplete patch-
work. But this was not an obstacle to retroactive prosecution to the extent
that the crimes were also recognised as being oVences under international law.
The second consequence of characterising an act as an international crime
is that this authorises prosecution by courts that would not normally be
allowed to exercise jurisdiction. The exercise of jurisdiction over crimes is a
facet of national sovereignty. Pursuant to principles of international law, as a
general rule States have only exercised jurisdiction over crimes when they
could demonstrate an appropriate link or interest. Normally, this consisted of
a territorial connection, either because the crime was committed on the States
territory or because it had signicant eVects on that territory. More excep-
tionally, international law has also allowed States to exercise jurisdiction over
19
France et al. v. Goring et al., (1946) 22 IMT 203, 13 ILR 203, 41 American Journal of
International Law 172, at p. 217.
20
Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, art. 11(2).
156 J U R I S D I C T I O N
acts committed by their nationals, and over acts of which their own nationals
are victims,
21
even outside their own territory.
Dening an oVence as an international crime authorises some form of
international jurisdiction. This may take the form either of an international
tribunal as such, or of prosecution by courts of a State that has no signicant
connection with the oVence, something which is known as universal jurisdic-
tion. Views on this subject have evolved considerably over the years. There is
now much support for the position that international law entitles the exercise
of universal jurisdiction for the three core crimes, namely genocide, crimes
against humanity and war crimes, although the views of judges of the Inter-
national Court of Justice were inconsistent when they were canvassed on this
subject in early 2002.
22
It is useful to recall that in 1948, the United Nations
General Assembly rejected the concept of universal jurisdiction over geno-
cide.
23
This had been proposed by the authors of the original resolutions in
the General Assembly, who lamented in their rst draft the fact that genocide
when committed in time of peace lies within the exclusive territorial jurisdic-
tion of the judiciary of every State concerned.
24
They failed in their eVorts to
obtain a declaration from the General Assembly that would change this
situation, with the result that article VI of the Genocide Convention says:
Persons charged with genocide or any of the other acts enumerated in article
3 shall be tried by a competent tribunal of the State in the territory of which
the act was committed, or by such international penal tribunal as may have
jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction.
25
Yet even the fact that article VI of the Genocide
Convention authorises prosecution by such international penal tribunal does
21
SS Lotus (France v. Turkey), [1927] PCIJ Ser. A No. 10 (Judgment No. 9) (7 September
1927).
22
See: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 14
February 2002, Separate Opinion of Judge Bula-Bula, Separate Opinion of President
Guillaume, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal,
Separate Opinion of Judge Koroma, Dissenting Opinion of Judge Oda, Declaration of
Judge Ranjeva, Separate Opinion of Judge Rezek, Dissenting Opinion of Judge Van den
Wyngaert. These were individual opinions and, strictly speaking, only obiter dicta. The
matter is raised directly in pending litigation before the International Court of Justice:
Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France),
Application, 9 December 2002.
23
William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge:
Cambridge University Press, 2000, pp. 353358.
24
UN Doc. A/BUR/50.
25
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
UNTS 277.
S U B J E C T- M AT T E R J U R I S D I C T I O N G E N E R A L L Y 157
not resolve diYculties with respect to the ad hoc tribunals because none of
them properly accepted the jurisdiction of these institutions.
26
The third signicant result of the recognition of an oVence as an interna-
tional crime is that it imposes duties upon States with respect to investigation,
prosecution and extradition. This is sometimes expressed with a Latin expres-
sion, aut dedere aut judicare (literally, extradite or prosecute). While related to
the concept of universal jurisdiction, the two should not be confused; aut
dedere aut judicare imposes an obligation, whereas universal jurisdiction is
merely an option available to States. The duty to prosecute or extradite is
recognised in some major treaties, and it is therefore beyond question that in
these cases States have willingly and intentionally accepted such obligations.
The four Geneva Conventions of 1949 contain provisions dealing with a sub-
set of violations known as grave breaches; they require that [e]ach High
Contracting Party . . . search for persons alleged to have committed, or to have
ordered to be committed, such grave breaches, and . . . bring such persons,
regardless of their nationality, before its own courts. Alternatively, a State may,
if it prefers, and in accordance with the provisions of its own legislation, hand
such persons over for trial to another High Contracting Party concerned,
provided such High Contracting Party has made out a prima facie case.
27
The
Convention Against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment imposes something similar.
28
It has been argued that
these obligations to prosecute or extradite are also imposed by customary
international law with respect to a much broader range of international
crimes. While this may be a desirable result, from the standpoint of the
protection of human rights, in all honesty it is diYcult to nd any real
evidence in the practice of States to suggest that they consider themselves to
be under such obligations.
The nal signicant result of the classication of an act as an international
crime is a relaxation of the rules on immunities. The Charter of the Nurem-
berg Tribunal declared that [t]he oYcial position of defendants, whether as
Heads of State or responsible oYcials in Government Departments, shall not
26
In the case of Sierra Leone, this issue does not arise because genocide is not within the
Special Courts subject-matter jurisdiction.
27
Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75
UNTS 287, art. 146. Also: Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, (1949) 75 UNTS 31, art. 49; Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, (1950) 75 UNTS 85, art. 50; Convention Relative to the Treatment
of Prisoners of War, (1950) 75 UNTS 135, art. 129.
28
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, GA Res. 39/46, annex, art. 5(2).
158 J U R I S D I C T I O N
be considered as freeing them from responsibility or mitigating punishment.
29
More recently, article 27 of the Rome Statute of the International Criminal
Court says much the same thing.
30
But in the Yerodia case of February 2002,
the International Court of Justice recalled that even in the case of genocide,
crimes against humanity and war crimes, courts could not exercise jurisdic-
tion over the head of another State, even after he or she had left oYce. The
only exception, said the International Court of Justice, would be litigation
concerning acts performed in a private capacity.
31
The elimination of sovereign immunity as a bar to jurisdiction or as a
defence is set out explicitly in the statutes of the three tribunals. With respect
to the two ad hoc tribunals, this clearly applies to the heads of State of any
country (or at least any United Nations Member State), precisely because the
United Nations Security Council establishes the tribunals. In Yerodia, the
International Court of Justice stated quite explicitly that head of State immu-
nity did not obtain before the two ad hoc tribunals for the former Yugoslavia
and Rwanda.
32
Moreover, both have proceeded against heads of State or heads
of government in their respective territories, and without the consent of the
States concerned.
33
As for the Special Court for Sierra Leone, the issue is
slightly more complicated. If the view is taken that the Special Court for Sierra
Leone is, in eVect, a form of delegation of national jurisdiction to an inter-
national body by the Government of Sierra Leone, then the provision in the
Courts Statute that takes away sovereign immunity can only be applicable to
the head of State of Sierra Leone. If, on the other hand, the Special Court for
Sierra Leone is viewed as a genuinely international tribunal similar in nature
to the other ad hoc tribunals, then it may exercise jurisdiction over foreign
heads of State without obstacle. This question was debated vigorously before
the Special Court for Sierra Leone.
29
Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951)
82 UNTS 279, annex, art. 7.
30
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9.
31
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14
February 2002, para. 61. This largely overturned a somewhat more liberal ruling by the
United Kingdoms House of Lords in the celebrated Pinochet case. In R v. Bartle and the
Commissioner of Police for the Metropolis and others, ex parte Pinochet Ugarte, [1999] 2 All
ER 97 (HL), a majority of the House of Lords said [s]uch immunity is only in respect of
oYcial acts performed in the exercise of his functions. There is a gap between the two
tests, as dissenting Judge Van den Wyngaert observed: Arrest Warrant of 11 April 2000
(Democratic Republic of Congo v. Belgium), Dissenting Opinion of Judge Van den
Wyngaert, 14 February 2002, para. 36.
32
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14
February 2002, para. 61.
33
Milos evic (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras.
2634; Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998.
S U B J E C T- M AT T E R J U R I S D I C T I O N G E N E R A L LY 159
On 31 May 2004, a three-member bench of the SCSL Appeals Chamber
concluded that it was indeed an international criminal tribunal broadly
similar to the ICC, the ICTY and the ICTR, including in relation to the
provisions conrming the absence of entitlement of any person to claim of
immunity. Consequently, there is no reason to conclude that the Special
Court should be treated as anything other than an international tribunal or
court, with all that implies for the question of immunity for a serving Head of
State.
34
The SCSL therefore rejected a challenge to jurisdiction by Charles
G. Taylor, who had been the president of neighbouring Liberia when the
indictment was issued.
34
Taylor (SCSL-03-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 41.
160 J U R I S D I C T I O N
6
Genocide
The crime of genocide is included, in identical provisions, within the subject-
matter jurisdiction of both the ICTY (article 4) and ICTR (article 2) but not
within that of the SCSL. Already, when the ICTY was being contemplated,
there had been widespread charges that genocide was being committed during
the conict in Bosnia and Herzegovina. As early as August 1992, the Commis-
sion on Human Rights called on States to consider the extent to which the
acts committed in Bosnia and Herzegovina and in Croatia constitute geno-
cide.
1
In its December 1992 resolution on the situation in Bosnia and
Herzegovina, the United Nations General Assembly described ethnic cleans-
ing as a form of genocide.
2
Nevertheless, the Security Council resolution
creating the ICTY, adopted on 8 May 1993, did not refer to genocide.
3
As for
Rwanda, despite hesitation within the Security Council to use the g-word to
describe the atrocities as they unfolded in April 1994,
4
it soon became evident
that the most signicant manifestation of genocide since the destruction of
the European Jews during the 1940s was well underway. By the time the ICTR
was created, in November 1994, the term genocide had been used by the
Special Rapporteur of the Commission on Human Rights,
5
the Commission
of Experts,
6
and even the Security Council itself (for the rst time in its
history).
7
When the Security Council created the ICTR, in somewhat marked
1
Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc. A/RES/
47/147.
2
The Situation in Bosnia and Herzegovina, UN Doc. A/RES/47/121.
3
Ibid.
4
Samantha Power, A Problem From Hell: America and the Age of Genocide, New York:
Basic Books, 2002.
5
UN Doc. E/CN.4/1995/7 and Corr.1. The Special Rapporteur conrmed his ndings of
genocide on subsequent visits to Rwanda later the same year: UN Doc. E/CN.4/1995/12,
UN Doc. E/CN.4/1995/70.
6
UN Doc. S/1994/1125, annex (preliminary report of 1 October 1994). See also: Final
Report of the Commission of Experts established pursuant to Security Council Resolu-
tion 935 (1994), UN Doc. S/1994/1405, annex.
7
UN Doc. S/RES/925 (1994), preamble. The report of the inquiry commissioned by the
Secretary-General concluded: The delay in identifying the events in Rwanda as a genocide
161
contrast with the ICTY, it expressed concern that genocide and other sys-
tematic, widespread and agrant violations of international humanitarian
law have been committed in Rwanda,
8
and said the Tribunal was established
for the sole purpose of prosecuting persons responsible for genocide and
other serious violations of international humanitarian law.
9
The Council
listed genocide rst in its enumeration of punishable crimes in the ICTR
Statute, whereas it had placed genocide third in the ICTY Statute, after grave
breaches and violations of the laws or customs of war.
Although the SCSL Statute is modelled on that of the ICTR, the Secretary-
General chose to omit the crime of genocide. He explained why in his report:
Because of the lack of any evidence that the massive, large-scale killing in
Sierra Leone was at any time perpetrated against an identied national, ethnic,
racial or religious group with an intent to annihilate the group as such, the
Security Council did not include the crime of genocide in its recommenda-
tion, nor was it considered appropriate by the Secretary-General to include
it in the list of international crimes falling within the jurisdiction of the
Court.
10
Essentially all of the prosecutions before the ICTR have involved charges
of genocide. In one case, when a judge refused to authorise a charge of
genocide within an indictment, the Prosecutor chose to withdraw the indict-
ment rather than proceed to trial with a case that did not engage the priorities
of the Tribunal.
11
There have now been several convictions by the ICTR for
what it has labelled the crime of crimes.
12
Very few of the early prosecutions
was a failure by the Security Council. The reluctance by some States to use the term
genocide was motivated by a lack of will to act, which is deplorable. Report of the
Independent Inquiry into the Actions of the United Nations During the 1994 Genocide
in Rwanda, UN Doc. S/1999/1257, enclosure (italics in the original).
8
UN Doc. S/RES/955 (1994), preambular para. 3.
9
Ibid., para. 1.
10
Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, UN Doc. S/2000/915, para. 13. Perhaps it is also of some signicance that
Sierra Leone has never ratied the Convention for the Prevention and Punishment of
the Crime of Genocide.
11
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
Indictment, 18 March 1999.
12
Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 16. Also:
Akayesu (ICTR-96-4-T), Sentencing Judgment, 2 October 1998; Rutaganda (ICTR-96-3-T),
Judgment and Sentence, 6 December 1999, para. 451; Serushago (ICTR-98-39-S),
Sentence, 5 February 1999, para. 15; Musema (ICTR-96-13-T), Judgment and
Sentence, 27 January 2000, para. 981. The ICTR Appeals Chamber implied that it
did not agree with the expression, given the lack of a hierarchy of crimes in the
Statute: Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para.
367; Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 590. Subsequently, it
cited the expression with approval: Niyitegeka (ICTR-96-14-A), Judgment, 9 July
2004, para. 53. See also: Jelisic (IT-95-10-A), Partial Dissenting Opinion of Judge
162 J U R I S D I C T I O N
before the ICTY included charges of genocide. At one point, the judges
expressed their frustration, and urged the Prosecutor to include the charge
within a specic indictment.
13
The rst case to come to trial led to acquittal on
charges of genocide.
14
Only in August 2001, in a case dealing with one of the
commanders involved in the 1995 Srebrenica massacre, did the Tribunal nally
convict a person of genocide.
15
It was upheld on appeal,
16
but there have been
no further convictions, and three acquittals.
17
All of these cases, some of them
adjudicated by the Appeals Chamber, have led to the rst substantial body of
case law interpreting and applying the legal concept of genocide.
Raphael Lemkin coined the word genocide in his book on Nazi persecu-
tion in occupied Europe, published in 1944.
18
The term was employed the
following year by the prosecutors at Nuremberg (although not by the judges),
and in 1946 genocide was declared an international crime by the General
Assembly of the United Nations.
19
The Assembly decide to proceed with the
drafting of a treaty on genocide, which was completed in December 1948.
In its articles II and III, the Convention for the Prevention and Punishment of
the Crime of Genocide denes the crime of genocide and lists forms of
participation in genocide as well as inchoate or incomplete versions of the
crime, namely attempt, conspiracy and incitement.
20
These provisions have
been incorporated, with only slight technical modications, into the statutes
of the ICTY and ICTR:
1. The International Tribunal shall have the power to prosecute persons
committing genocide as dened in paragraph 2 of this article or of
committing any of the other acts enumeratedinparagraph3 of this article.
2. Genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
Wald, 5 July 2001, para. 2; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para.
800; Krstic (IT-98-33-A), Partial Dissenting Opinion of Judge Shahabuddeen, 19
April 2004, para. 95.
13
Nikolic (IT-94-2-R61), Review of Indictment Pursuant to Rule 61, 20 October 1995,
para. 34.
14
Jelisic (IT-95-10-T), Judgment, 14 December 1999.
15
Krstic (IT-98-33-T), Judgment, 2 August 2001.
16
Krstic (IT-98-33-A), Judgment, 19 April 2004 (but for aiding and abetting).
17
Stakic (IT-97-24-T), Judgment, 31 July 2003; Branin (IT-99-36-T), Judgment, 1
September 2004; Blagojevic (IT-02-60-T), Judgment, 17 January 2005 (convicted of
complicity in genocide).
18
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,
Proposals for Redress, Washington: Carnegie Endowment for International Peace, 1944.
19
GA Res. 96(I).
20
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
UNTS 277. On the drafting of the Genocide Convention, and its subsequent interpre-
tation, see: William A. Schabas, Genocide in International Law: The Crime of Crimes,
Cambridge: Cambridge University Press, 2000.
G E N O C I D E 163
a. killing members of the group;
b. causing serious bodily or mental harm to members of the group;
c. deliberately inicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
d. imposing measures intended to prevent births within the group;
e. forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
a. genocide;
b. conspiracy to commit genocide;
c. direct and public incitement to commit genocide;
d. attempt to commit genocide;
e. complicity in genocide.
The denition really begins with the introductory paragraph or chapeau
of paragraph 2. There are several important components of this introductory
paragraph, which is then followed by an exhaustive list of punishable acts.
One important element that appears in the 1948 Convention is not reected
in the provisions within the Tribunal. Article 1 of the Convention says that
genocide whether committed in time of peace or in time of war, is a crime
under international law. Because the crime of genocide can be committed in
peacetime, it is not, strictly speaking, a serious violation of international
humanitarian law, despite the claim to the contrary in the preamble of the
ICTY Statute. Certainly, there are periods within the temporal jurisdictions of
both tribunals where it is doubtful that armed conict was underway. In such
cases, the war crimes provisions would be inapplicable, but the Tribunal
would still, presumably, retain jurisdiction over the crime of genocide. There
have been no cases where this issue has arisen.
Elements of the crime of genocide
Intentional homicide can be prosecuted by the ICTY and the ICTR as a war
crime (wilful killing), a crime against humanity (murder) and as genocide
(killing). But intentional homicide as genocide must be committed with the
specic intent to destroy in whole or in part a national, ethnical, racial or
religious group as such. The tribunals have called this genocides special
intent
21
or dolus specialis,
22
terms familiar to jurists in common law and
21
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 498, 499, 510, 517; Stakic (IT-
97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31 October 2002, para.
29; Krstic (IT-98-33-A), Judgment, 19 April 2004, paras. 20, 35, 37, 133, 134, 140143; Jelisic
(IT-95-10-T), Judgment, 14 December 1999, para. 86; Ntakirutimana et al. (ICTR-96-10-A
and ICTR-96-17-A), Judgment, 13 December 2004, paras. 364, 365, 495.
22
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 121, 226, 227, 245, 268;
Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, para. 16. Also:
164 J U R I S D I C T I O N
continental criminal justice systems, respectively. According to one ICTY Trial
Chamber, special intent and dolus specialis can be used interchangeably.
23
In its commentary on the 1996 Code of Crimes against the Peace and
Security of Mankind, the International Law Commission qualied geno-
cides specic intent as the distinguishing characteristic of this particular
crime under international law.
24
The Sikirica Trial Chamber accused the
ICTYs Prosecutor of unnecessarily complicating matters by introducing a
debate about theories of intent, noting that the matter should be resolved
with reference to the text of the provision:
The rst rule of interpretation is to give words their ordinary meaning
where the text is clear. Here, the meaning of intent is made plain in the
chapeau to Article 4(2). Beyond saying that the very specic intent
required must be established, particularly in the light of the potential
for confusion between genocide and persecution, the Chamber does not
consider it necessary to indulge in the exercise of choosing one of the
three standards identied by the Prosecution. In the light, therefore, of
the explanation that the provision itself gives as to the specic meaning
of intent, it is unnecessary to have recourse to theories of intent.
25
Proof of intent may be inferred from the facts, the concrete circumstances,
or a pattern of purposeful action.
26
But, [w]here an inference needs to be
drawn, it has to be the only reasonable inference available on the evidence.
27
The intent of the perpetrator must be to destroy the group. In Krstic , a
Trial Chamber said that customary international law limits the denition of
genocide to those acts seeking the physical or biological destruction of all
or part of the group. Hence, an enterprise attacking only the cultural or
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999; Jelisic (IT-95-10-
T), Judgment, 14 December 1999, para. 108; Stakic (IT-97-24-T), Decision on Rule 98bis
Motion for Judgment of Acquittal, 31 October 2002, para. 29; Milos evic (IT-02-54-T),
Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 119; Krstic (IT-98-
33-A), Judgment, 19 April 2004, para. 141; Jelisic (IT- 95-10-A), Judgment, 5 July 2001,
paras. 11, 31, 38, 4245, 5051; Kamuhanda (ICTR-95-54A-T), Judgment, 22 January
2004, para. 622.
23
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 520.
24
Report of the International Law Commission on the Work of its Forty-eighth Session, 6
May26 July 1996, UN Doc. A/51/10, pp. 8788. Also: Report of the International Law
Commission on the Work of its Forty-seventh Session, 2 May21 July 1995, UN Doc. A/
50/10, p. 43, para. 79.
25
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 60.
26
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 704. Also: Stakic (IT-97-24-T),
Judgment, 31 July 2003, para. 526; Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1
June 2001, para. 159. See also Krstic (IT-98-33-A), Judgment, 19 April 2004, paras. 3334.
27
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 970 (emphasis in the origi-
nal). Also: Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 41.
G E N O C I D E 165
sociological characteristics of a human group in order to annihilate these
elements which give to that group its own identity distinct from the rest of the
community would not fall under the denition of genocide.
28
In Rwanda,
there has been ample evidence that it was physical destruction of the Tutsi that
was contemplated. In the wars on the territory of the former Yugoslavia, many
of the acts that were colloquially referred to as ethnic cleansing suggested
cultural genocide rather than physical genocide. Various judgments have
wrestled with the distinction between ethnic cleansing and genocide. In his
partially dissenting opinion in Krstic , Judge Shahabuddeen distinguished
between the punishable acts of genocide, which are physical and biological
in nature, and the reference to intent in the chapeau, which does not rule out
the destruction which is other than physical and biological.
29
His views were
endorsed in Blagojevic , where an ICTY Trial Chamber said the term destroy
in the denition of genocide could encompass the forcible transfer of a
population:
The Trial Chamber nds in this respect that the physical or biological
destruction of a group is not necessarily the death of the group members.
While killing large numbers of a group may be the most direct means of
destroying a group, other acts or series of acts, can also lead to the
destruction of the group. A group is comprised of its individuals, but also
of its history, traditions, the relationship between its members, the rela-
tionship with other groups, the relationship with the land. The Trial
Chamber nds that the physical or biological destruction of the group is
the likely outcome of a forcible transfer of the population when this
transfer is conducted in such a way that the group can no longer recon-
stitute itself particularly when it involves the separation of its members.
In such cases the Trial Chamber nds that the forcible transfer of indivi-
duals could lead to the material destruction of the group, since the group
ceases to exist as a group, or at least as the group it was. The Trial Chamber
emphasises that its reasoning and conclusion are not an argument for the
recognition of cultural genocide, but rather an attempt to clarify the
meaning of physical or biological destruction.
30
Obviously, this ICTY Trial Chamber was trying to skate around the fact
that the Appeals Chamber had ruled that article 4 only covers physical or
biological destruction. The reasoning here is decient, because it rests on a
speculative premise, namely that forcible transfer of individuals could lead to
28
Krstic (IT-98-33-T), Judgment, 2 August 2001, paras. 576, 580. Also: Krstic (IT-98-33-A),
Judgment, 19 April 2004, para. 25; Branin (IT-99-36-T), Judgment, 1 September 2004,
para. 694; Semanza (ICTR- 97-20-T), Judgment and Sentence, 15 May 2003, para. 315;
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 808.
29
Krstic (IT-98-33-A), Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004,
paras. 4554.
30
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 666.
166 J U R I S D I C T I O N
the material destruction of the group. In fact, many things could lead to the
disappearance of a group. That is not the issue. Article 4 asks the tribunal to
determine whether the accused intended to destroy the group and whether this
might result from his or her acts or omissions. When the question is presented
in this manner, it should be clear that the real debate is about whether the
forced deportation of civilians leads to the conclusion that the perpetrators
intended the material destruction of the group. Absent other indications, it is
surely too much to presume this; precisely the opposite conclusion is just as
plausible, the deportation providing evidence that the perpetrator intended to
ensure the survival of the group rather than its disappearance.
In a judgment issued a few months after Krstic and a few months before
Blagojevic , the accused was acquitted of genocide after an ICTY Trial Chamber
found there was insuYcient evidence of genocidal intent. It warned of the
danger of conating the intent of forcible displacement with that of physical
destruction.
31
The decisions in Blagojevic and Branin reect the two extre-
mes on the issue in the aftermath of the Appeals Chamber ruling in Krstic .
The Prosecutor did not appeal the portions of the Branin judgment dealing
with genocide, perhaps out of fear that the Appeals Chamber might narrow the
precedent established in Krstic . The fact remains that on the diYcult
issue of distinguishing between forcible displacement (ethnic cleansing) and
genocide, the case law remains inconsistent.
32
The Rome Statutes detailed provision on the mental element of crimes,
including genocide, states that a person shall be criminally responsible and
liable for punishment for a crime within the jurisdiction of the Court only if
the material elements are committed with intent and knowledge. If the
punishable act involves conduct, the oVender must mean . . . to engage in
the conduct; if it involves a consequence, the oVender must either mean . . .
to cause that consequence or be aware that it will occur in the ordinary
course of events. Knowledge, on the other hand, means awareness that a
circumstance exists or a consequence will occur in the ordinary course of
events.
33
Because the denition of genocide refers to the specic intent, the
issue of knowledge has not attracted much judicial attention, although there
is surely an implied nding in all of the ICTR convictions for genocide that
the oVender knew the destruction of the group would occur in the ordinary
31
Branin (IT-99-36-T), Judgment, 1 September 2004, paras. 969991.
32
Within days of Blagojevic , an expert committee established by the United Nations and
presided by former ICTY President Antonio Cassese determined that while forcible
displacement was taking place in the Darfur region of Sudan, it could not be described
as genocide. See: Report of the International Commission of Inquiry on Darfur to the
United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18
September 2004, Geneva, 25 January 2005.
33
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 30.
G E N O C I D E 167
course of events. The distinction between intent and knowledge is funda-
mental to the reasoning of the ICTYAppeals Chamber, however. In Krstic , the
ICTY Appeals Chamber concluded that while the accused lacked the intent
to commit genocide, he had knowledge that others intended to commit it
and he aided and abetted them.
34
For many lawyers, this nuance is of little
more than technical signicance, because a person who assists another know-
ing the intent of the primary perpetrator in eVect also intends to commit the
oVence. However, for some critics a conviction for genocide based upon
aiding and abetting, when it is conceded that the accused did not intend to
commit genocide, is fundamentally awed.
35
The intent must be to destroy a national, ethnical, racial or religious
group. The overarching theme of the wars in Rwanda and the former
Yugoslavia was ethnic conict, but both tribunals have been vexed somewhat
by categorising the victims. In its early judgments, the ICTR seemed to have
diYculty describing Rwandas Tutsi minority as a national, ethnical, racial
or religious group, and attempted to resolve the problem with an expansive
interpretation of the expression. It said that genocide could be committed
against any stable and permanent group, although it ultimately accepted
the qualication of the Tutsi as an ethnic group.
36
Although much heralded
in 1998 for enlarging the narrow bounds of the denition in the 1948 Con-
vention, the Akayesu Trial Chambers conclusion that all permanent and
stable groups was never followed by other Trial Chambers of either of the
tribunals.
37
ICTR Trial Chambers now generally satisfy themselves by taking
judicial notice of the fact that in Rwanda in 1994 the Tutsi were recognised as
an ethnic group.
38
In Krstic , the Trial Chamber concluded that the victims
were members of the national group of Bosnian Muslims.
39
The ICTY has
noted that the crime of genocide in many respects ts within the international
legal protection of national minorities, and that the concept of national,
ethnic, racial or religious groups should be interpreted in this context.
40
This
approach indicates a quite diVerent view of the philosophical basis for the
crime of genocide than the stable and permanent groups theory of the ICTR.
Persecution and destruction of a broader spectrum of groups, such as
34
Krstic (IT-98-33-A), Judgment, 19 April 2004, paras. 134, 140; Ntakirutimana (ICTR-96-
10-A and ICTR-96-17-A), Judgment, 13 December 2004, para. 500.
35
Guenael Mettraux, International Crimes and the Ad Hoc Tribunals, Oxford: Oxford
University Press, 2005, pp. 212215.
36
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 428429.
37
But note the revival of this theory by the Darfur Commission: Report of the Interna-
tional Commission of Inquiry on Violations of International Humanitarian Law and
Human Rights Law in Darfur, UN Doc. S/2005/60, para. 498.
38
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 817.
39
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 559.
40
Ibid., paras. 555556. Also: Branin (IT-99-36-T), Judgment, 1 September 2004, para. 682.
168 J U R I S D I C T I O N
political and social groups, is adequately addressed within the parameters of
crimes against humanity.
The tribunals have moved towards a subjective approach in determining
the existence and identity of the group. If the perpetrator, or the victim,
considers that the group exists, these are very compelling indicators for the
application of the crime of genocide.
41
The analysis involves a combination
of both subjective and objective factors, on a case-by-case basis. This is so,
wrote an ICTY Trial Chamber, because subjective criteria alone may not be
suYcient to determine the group targeted for destruction and protected by
the Genocide Convention, for the reason that the acts identied in subpara-
graphs (a) to (e) of Article 4(2) must be in fact directed against members of
the group.
42
It is only necessary to prove that the perpetrator intended to destroy the
group in part. The tribunals have interpreted this by adding the adjective
substantial, which indicates a quantitative dimension, or signicant, which
suggests a qualitative dimension. The ICTR, in Kayishema and Ruzindana,
said that in part requires the intention to destroy a considerable number of
individuals.
43
An ICTY Trial Chamber said that genocide must involve the
intent to destroy a substantial part, although not necessarily a very impor-
tant part.
44
In another judgment, the Tribunal referred to a reasonably
substantial number relative to the group as a whole.
45
The Krstic Trial
Chamber held that genocide could be committed with respect to the Bosnian
Muslims of Srebrenica because
the intent to destroy a group, even if only in part, means seeking to destroy
a distinct part of the group as opposed to an accumulation of isolated
individuals within it. Although the perpetrators of genocide need not seek
to destroy the entire group protected by the Convention, they must view
the part of the group they wish to destroy as a distinct entity which must
be eliminated as such. A campaign resulting in the killings, in diVerent
places spread over a broad geographical area, of a nite number of
members of a protected group might not thus qualify as genocide, despite
the high total number of casualties, because it would not show an intent
by the perpetrators to target the very existence of the group as such.
46
41
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 317; Kajelijeli
(ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 811.
42
Branin (IT-99-36-T), Judgment, 1 September 2004, para. 684 (references omitted).
43
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 97. Cited
in: Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 64; Krstic (IT-98-33-T),
Judgment, 2 August 2001, para. 586.
44
Jelisic (IT-95-10-T), Judgment, 19 October 1999; also Bagilishema (ICTR-95-1A-T),
Judgment, 7 June 2001, paras. 5659.
45
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 65.
46
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 590.
G E N O C I D E 169
The intent requirement that the destruction contemplate the group in
whole or in part should not be confused with the scale of the participation
by an individual oVender. The accused may only be involved in one or a few
killings or other punishable acts. No single accused, as the principal perpe-
trator of the physical acts, could plausibly be responsible for destroying a
group in whole or in part.
Some judgments have also held that it is enough to target a signicant
part of the group, such as its religious or political elite. This rather novel
approach originated in the Commission of Experts,
47
and was adopted by the
ICTY Prosecutor in several indictments.
48
It was subsequently endorsed by
a Trial Chamber in Jelisic , which held that it might be possible to infer the
requisite genocidal intent from the desired destruction of a more limited
number of persons selected for the impact that their disappearance would
have upon the survival of the group as such.
49
The same scenario, involving
relatively small numbers of killings in concentration camps, returned in
Sikirica, but as in Jelisic , the judges could not discern any pattern in the camp
killings that suggested the intent to destroy a signicant part of the local
Muslim community so as to threaten its survival. The victims were taxi
drivers, schoolteachers, lawyers, pilots, butchers and cafe owners but not,
apparently, community leaders. The Trial Chamber observed that they do
not appear to have been persons with any special signicance to their com-
munity, except to the extent that some of them were of military age, and
therefore could be called up for military service.
50
In Krstic the Trial Chamber
seemed convinced by prosecution arguments whereby the men and boys of
military age, who were the victims of the Srebrenica massacre of July 1995,
were the signicant part of the Muslim community. This is not the same
as the leadership, although the reasoning is similar, as is the decisive eVect
on the groups survival criterion. The Krstic judgment explains:
47
Final Report of the Commission of Experts Established Pursuant to Security Council
Resolution 780 (1992), UN Doc. S/1994/674, annex, para. 94. The Commission was
inspired by the Whitaker report: Benjamin Whitaker, Revised and Updated Report
on the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc.
E/CN.4/Sub.2/1985/6, para. 29.
48
Karadzic et al. (IT-95-18-R61, IT-95-5-R61), Transcript, 27 June 1996, p. 15 (the Prose-
cutor (Eric Ostberg) noted that he relied on Benjamin Whitaker, Revised and Updated
Report on the Question of the Prevention and Punishment of the Crime of Genocide, UN
Doc. E/CN.4/Sub.2/1985/6, para. 19); Jelisic et al. (IT-95-10-I), Indictment, 21 July 1995,
para. 17; Jelisic et al. (IT-95-10-I), Amended Indictment, 12 May 1998, para. 16; Jelisic
et al. (IT-95-10-I), Second Amended Indictment, 19 October 1998, para. 14.
49
Jelisic (IT-95-10-T), Judgment, 14 December 1999, para. 82.
50
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 80.
170 J U R I S D I C T I O N
Granted, only the men of military age were systematically massacred, but
it is signicant that these massacres occurred at a time when the forcible
transfer of the rest of the Bosnian Muslim population was well under way.
The Bosnian Serb forces could not have failed to know, by the time they
decided to kill all the men, that this selective destruction of the group
would have a lasting impact upon the entire group. Their death precluded
any eVective attempt by the Bosnian Muslims to recapture the territory.
Furthermore, the Bosnian Serb forces had to be aware of the catastrophic
impact that the disappearance of two or three generations of men would
have on the survival of a traditionally patriarchal society, an impact the
Chamber has previously described in detail. The Bosnian Serb forces
knew, by the time they decided to kill all of the military aged men, that
the combination of those killings with the forcible transfer of the women,
children and elderly would inevitably result in the physical disappearance
of the Bosnian Muslim population at Srebrenica.
51
The recent authorities that develop the signicant part interpretation use
the phenomenon of selective killing of certain segments of a group as evidence
of intent to destroy the group as a whole, assuming it is predicated on a
calculation that destruction of the signicant members of the group will
irrevocably compromise the existence of what remains. The same reasoning
does not apply to destruction of a substantial part, because it accepts the
possibility that the perpetrators may only intend to destroy a part of the
group. Of course, there is no reason why destruction of the leadership, that
is, of a signicant part, could not provide proof of intent to destroy a
substantial part of a particular group.
The Appeals Chamber has held that there is no need to establish a plan to
commit genocide. This means that it is possible to establish genocide without
any evidence of State involvement, or of that of an organised State-like entity.
In Jelisic , the ICTYentertained the rather bizarre possibility that an individual
acting alone could have committed genocide.
52
According to the Appeals
Chamber, the existence of a plan or policy is not a legal ingredient of the
crime. However, in the context of proving specic intent, the existence of
a plan or policy may become an important factor in most cases. The evidence
may be consistent with the existence of a plan or policy, or may even show
such existence, and the existence of a plan or policy may facilitate proof of
the crime.
53
In another case, the Appeals Chamber referred to this paragraph
in support of its conclusion not to require proof of a plan or policy with
respect to crimes against humanity.
54
This broadening of the scope of both
51
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 595.
52
Jelisic (IT-95-10-T), Judgment, 14 December 1999, para. 100.
53
Jelisic (IT-95-10-A), Judgment, 5 July 2001, para. 48.
54
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 98, fn. 114.
G E N O C I D E 171
genocide and crimes against humanity has apparently not been well received
by many States, and contextual elements requiring a plan or policy are part
of the law of the International Criminal Court.
55
The enigmatic words as such were interpreted by the Appeals Chamber
in Niyitegeka. The Appeals Chamber noted that these words had been included
in article II of the 1948 Genocide Convention so as to resolve an impasse
among the negotiators as to whether or not proof of genocidal motive should
be added to the requirement of a specic or special intent. It said the expres-
sion has eVet utile of drawing a clear distinction between mass murder and
crimes in which the perpetrator targets a specic group because of its nation-
ality, race, ethnicity or religion.
56
But the words as such do not prohibit a
conviction for genocide in a case in which the perpetrator was also driven
by other motivations that are legally irrelevant in this context.
57
Punishable acts of genocide
Article II of the 1948 Genocide Convention, and its counterparts in the
statutes of the ICTY and ICTR, lists ve punishable acts of genocide. Each
one of these acts has its own mental and physical elements, which must be
proven in addition to the elements in the introductory paragraph or chapeau
for there to be a conviction. The list is an exhaustive one, and does not permit
other acts that might result in the destruction of a protected group.
Killing
In the rst major genocide case before the ICTR, a Trial Chamber said the
act of killing consisted of two material elements: the victim is dead and
the death resulted from an unlawful act or omission of the accused or a
subordinate.
58
The oVender must intend this result or recklessly disregard
the likelihood death will result from such acts or omissions. In Akayesu, an
55
The International Criminal Courts Elements of Crimes, ICC-ASP/1/3, p. 113, require
that genocide be committed in the context of a manifest pattern of similar conduct.
This text was adopted in the wake of the Jelisic Trial Chamber decision and was probably
a reaction to it.
56
Niyitegeka (ICTR-96-14-A), Judgment, 9 July 2004, para. 53. Citing: William
A. Schabas, Genozid im Volkerrecht, Hamburg: Hamburger Institute, 2003, pp. 340
341; Schabas, Genocide in International Law, pp. 254255.
57
Ibid. Also: Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December
2004, para. 363.
58
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 589. In Kayishema et al.
(ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 101104, another Trial
Chamber purported to discuss the actus reus of killing, but in fact addressed only the
diYculties in dening the mental element.
172 J U R I S D I C T I O N
ICTR Trial Chamber said the English term killing was too general, and that
the more precise French term meurtre should be applied. This reasoning was
supported with reference to the Rwandan Penal Code, as well as the canon
of interpretation by which the accused should benet from the more favour-
able version.
59
But in Kayishema and Ruzindana, a diVerently constituted Trial
Chamber of the same tribunal said there was virtually no diVerence between
the term killing in the English version and meurtre in the French ver-
sion.
60
This view was upheld on appeal, the Appeals Chamber noting that if
the word virtually is interpreted in a manner that suggests a diVerence,
though minimal, between the two terms, it would construe them both as
referring to intentional but not necessarily premeditated murder, this being, in
its view, the meaning to be assigned to the word meurtre .
61
DiVerent terms are used elsewhere within the statutes to describe the crime
of intentional homicide. In eVect, the act of genocide of killing has the same
underlying elements as the crime against humanity of murder, the grave
breach of wilful killing and the war crime of murder,
62
subject of course to
the various contextual elements of each category of oVence. Accordingly, the
analysis of the act of genocide of killing draws upon relevant precedents from
these other categories.
The Prosecutor must prove that the death of a person resulted from the
actions or omissions of the accused. The actions or omissions need not be
the sole cause of death, but they must be a substantial cause.
63
To establish
the mens rea or mental element of the oVence, there must be evidence that the
accused had the intent to kill.
64
Alternatively, it is suYcient to demonstrate
that the accused intended to inict serious bodily injury in reckless disregard
of human life.
65
While there must be proof that a person is dead, this can be
59
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 500501. Also: Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 50; Musema (ICTR-96-
13-T), Judgment and Sentence, 27 January 2000, para. 155; Bagilishema (ICTR-95-1A-
T), Judgment, 7 June 2001, para. 57.
60
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 104.
61
Kayishema et al. (ICTR-95-1-A), Judgment (Reasons), 1 June 2001, para. 151.
62
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323324; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, paras. 229, 236; Blas kic (IT-95-14-T), Judgment, 3
March 2000, para. 153.
63
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, paras. 323324; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, paras. 236, 229; Blas kic (IT-95-14-T), Judgment, 3
March 2000, para. 153; Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para.
424; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 215; Krstic
(IT-98-33-T), Judgment, 2 August 2001, para. 485; Krnojelac (IT-97-25-T), Judgment,
15 March 2002, para. 324; Jelisic (IT-95-10-T), Judgment, 14 December 1999, para. 35.
64
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 229.
65
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 36; Delalic et al. (IT-96-
21-A), Judgment, 20 February 2001, para. 422; Kordic et al. (IT-95-14/2-T), Judgment, 26
G E N O C I D E 173
inferred, and it is not necessary to actually show that the body was recovered.
It has been held that causing the suicide of a person may amount to murder
where the accused acts or omissions induced the victim to take action which
resulted in his death, and that his suicide was either intended, or was an action
of a type which a reasonable person could have foreseen as a consequence.
66
Causing serious bodily or mental harm
In Akayesu, the ICTR held the term serious bodily or mental harm, without
limiting itself thereto, to mean acts of torture, be they bodily or mental,
inhumane or degrading treatment, persecution.
67
Another Trial Chamber of
the ICTR dened this as harm that seriously injures the health, causes
disgurement or causes any serious injury to the external, internal organs or
senses.
68
The Trial Chamber of the ICTY has likewise considered torture and
inhuman or degrading treatment to fall within the provisions scope.
69
It has
been held that inhuman treatment . . . and deportation are among the acts
which may cause serious bodily or mental injury.
70
According to an ICTR Trial Chamber in Akayesu, rape and sexual violence
may constitute genocide on both a physical and a mental level.
71
In Akayesu,
the Trial Chamber aYrmed that rape and other crimes of sexual violence may
fall within the ambit of paragraph (b) of article 2(1) of the ICTR Statute:
[T]he Chamber wishes to underscore the fact that in its opinion, they
constitute genocide in the same way as any other act as long as they were
committed with the specic intent to destroy, in whole or in part, a
February 2001, paras. 229, 236; Delalic et al. (IT-96-21-T), Judgment, 16 November 1998.
The same principles are aYrmed in case law concerning the crime against humanity of
murder: Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 589; Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, paras. 8081; Musema (ICTR-
96-13-T), Judgment and Sentence, 27 January 2000, para. 215. Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, paras. 136140; Bagilishema (ICTR-95-
1A-T), Judgment, 7 June 2001, para. 84; Kupres kic et al. (IT-95-16-T), Judgment, 14
January 2000, para. 560; Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 485; Blas kic
(IT-95-14-T), Judgment, 3 March 2000, para. 217; Jelisic (IT-95-10-T), Judgment, 14
December 1999, para. 35. Acknowledgement that killing may involve recklessness eVec-
tively rules out any requirement of premeditation. The debate on this issue is considered
under the heading of crimes against humanity, below at p. 198.
66
Krnojelac (IT-97-25-T), Judgment, 15 March 2002, para. 326 (referring to murder, but
the same considerations apply to wilful killing).
67
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 504.
68
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 109.
69
Karadzic et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to
Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 93.
70
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 513.
71
For a review of the authorities on this question, see: Sherrie L. Russell-Brown, Rape as
an Act of Genocide, (2003) 21 Berkeley Journal of International Law 350.
174 J U R I S D I C T I O N
particular group, targeted as such. Indeed, rape and sexual violence
certainly constitute iniction of serious bodily and mental harm on the
victims and are even, according to the Chamber, one of the worst ways of
inict[ing] harm on the victim as he or she suVers both bodily and mental
harm. In light of all the evidence before it, the Chamber is satised that the
acts of rape and sexual violence described above, were committed solely
against Tutsi women, many of whom were subjected to the worst public
humiliation, mutilated, and raped several times, often in public, in the
Bureau Communal premises or in other public places, and often by more
than one assailant. These rapes resulted in physical and psychological
destruction of Tutsi women, their families and their communities. Sexual
violence was an integral part of the process of destruction, specically
targeting Tutsi women and specically contributing to their destruction
and to the destruction of the Tutsi group as a whole. The rape of Tutsi
women was systematic and was perpetrated against all Tutsi women and
solely against them. ATutsi woman, married to a Hutu, testied before the
Chamber that she was not raped because her ethnic background was
unknown. As part of the propaganda campaign geared to mobilizing the
Hutu against the Tutsi, the Tutsi women were presented as sexual objects.
Indeed, the Chamber was told, for an example, that before being raped
and killed, Alexia, who was the wife of the Professor, Ntereye, and her two
nieces, were forced by the Interahamwe to undress and ordered to run and
do exercises in order to display the thighs of Tutsi women. The Inter-
ahamwe who raped Alexia said, as he threw her on the ground and got on
top of her, let us now see what the vagina of a Tutsi woman tastes like. As
stated above, Akayesu himself, speaking to the Interahamwe who were
committing the rapes, said to them: dont ever ask again what a Tutsi
woman tastes like. This sexualised representation of ethnic identity gra-
phically illustrates that Tutsi women were subjected to sexual violence
because they were Tutsi. Sexual violence was a step in the process of
destruction of the Tutsi group destruction of the spirit, of the will to
live, and of life itself. On the basis of the substantial testimonies brought
before it, the Chamber nds that in most cases, the rapes of Tutsi women
in Taba were accompanied with the intent to kill those women. Many
rapes were perpetrated near mass graves where the women were taken to
be killed. A victim testied that Tutsi women caught could be taken away
by peasants and men with the promise that they would be collected later to
be executed.
72
Causing serious bodily or mental harm to members of the group does not
necessarily mean that the harm is permanent and irremediable, but it needs to
be serious.
73
In Krstic , the ICTY considered the ordeal inicted on the few who
72
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 731733.
73
Ibid., para. 502. Also: Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May
1999, para. 108; Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999,
G E N O C I D E 175
survived the Srebrenica massacre to fall within the ambit of bodily and mental
harm. Even if the objective had been killing rather than inicting bodily or
mental harm, the Trial Chamber in eVect considered the result as a kind of
lesser and included oVence, noting this was a natural and foreseeable con-
sequence of the enterprise.
74
Another Trial Chamber, in Blagojevic , also
referring to the survivors of the Srebrenica massacre, said that
the trauma and wounds suVered by those individuals who managed to
survive the mass executions does constitute serious bodily and mental
harm. The fear of being captured, and, at the moment of the separation,
the sense of utter helplessness and extreme fear for their family and
friends safety as well as for their own safety, is a traumatic experience
from which one will not quickly if ever recover. Furthermore, the Trial
Chamber nds that the men suVered mental harm having their identica-
tion documents taken away from them, seeing that they would not be
exchanged as previously told, and when they understood what their
ultimate fate was. Upon arrival at an execution site, they saw the killing
elds covered of bodies of the Bosnian Muslim men brought to the
execution site before them and murdered. After having witnessed the
executions of relatives and friends, and in some cases suVering from
injuries themselves, they suVered the further mental anguish of lying still,
in fear, under the bodies sometimes of relative or friends for long
hours, listening to the sounds of the executions, of the moans of those
suVering in pain, and then of the machines as mass graves were dug.
75
The same Trial Chamber also spoke of the serious mental harm that was
done to the victims themselves, prior to their execution. Finally, it said that
the forced displacement of women, children, and elderly people was itself a
traumatic experience, which, in the circumstances of this case, reaches the
requisite level of causing serious mental harm under Article 4(2)(b) of the
Statute.
76
Deliberately inicting conditions of life calculated to destroy the group
This act of genocide corresponds closely to the crime against humanity of
extermination, where similar language has been used in the judgments.
77
It
para. 51; Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 156;
Bagilishema (ICTR-95-1A-T), Judgment, 7 June 2001, para. 59; Stakic (IT-97-24-T),
Judgment, 31 July 2003, para. 516; Branin (IT-99-36-T), Judgment, 1 September 2004,
para. 690. See also: B. Bryant and R. Jones, Codication of Customary International
Law in the Genocide Convention, (1975) 16 Harvard International Law Journal 686, at
pp. 694695.
74
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 635.
75
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 647.
76
Ibid., paras. 648649.
77
See below at pp. 199201.
176 J U R I S D I C T I O N
refers to methods of destruction apart from direct killings such as subjecting
the group to a subsistence diet, systematic expulsion from homes and denial
of the right to medical services.
78
It also includes circumstances that would
lead to a slow death such as a lack of proper housing, clothing and hygiene or
excessive work or physical exertion.
79
In Kayishema and Ruzindana, an ICTR
Trial Chamber said the conditions of life could also include rape.
80
Several indictments have suggested that article 4(2)(c) of the ICTY Statute
was breached by conditions in detention camps, where inmates were deprived
of proper food and medical care and generally subjected to conditions calcu-
lated to bring about the physical destruction of the detainees, with the intent
to destroy part of the Bosnian Muslim and Bosnian Croat groups, as such.
81
In Sikirica, for example, the Prosecutor argued that
the detainees in Keraterm had been systematically expelled from their
homes and had been forced to endure a subsistence diet. The medical care
that they received if any was below the minimal standards to ensure
their physical well-being. In short, the living conditions were totally
insuYcient.
82
A Trial Chamber in an examination under Rule 61 of the Rules of Proce-
dure and Evidence endorsed one of these detention camp indictments,
83
but
none of the detention camp cases has resulted in a conviction.
84
Imposing measures intended to prevent births
A Trial Chamber of the ICTR, in Akayesu, considered that rape could be
subsumed within paragraph (d) of the denition of genocide, as well as within
paragraph (b).
78
Stakic (IT-97-24-PT), Second Amended Indictment, 5 October 2001, para. 20; Akayesu
(ICTR-96-4-T), Judgment, 2 September 1998, paras. 505506.
79
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 517; Kayishema et al. (ICTR-95-1-T),
Judgment and Sentence, 21 May 1999, paras. 115116.
80
Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 116. Also:
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 156157.
81
Kovac evic et al. (IT-97-24-I), Indictment, 13 March 1997, paras. 1216; Kovac evic et al.
(IT-97-24-I), Amended Indictment, 23 June 1998, paras. 28, 32. Also: Karadz ic et al. (IT-
95-5-I), Indictment, 24 July 1995, paras. 18, 22; Meakic et al. (IT-95-4), Indictment, 13
February 1995, para. 18.3; Sikirica et al. (IT-95-8-I), Indictment, 21 July 1995, para. 12.3.
82
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 42.
83
Karadzic et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to
Rule 61 of the Rules of Procedure and Evidence, 11 July 1996.
84
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001;
Jelisic (IT-95-10-T), Judgment, 14 December 1999; Stakic (IT-97-24-T), Judgment, 31
July 2003.
G E N O C I D E 177
In patriarchal societies, where membership of a group is determined by
the identity of the father, an example of a measure intended to prevent
births within a group is the case where, during rape, a woman of the said
group is deliberately impregnated by a man of another group, with the
intent to have her give birth to a child who will consequently not belong
to its mothers group. Furthermore, the Chamber notes that measures
intended to prevent births within the group may be physical, but can also
be mental. For instance, rape can be a measure intended to prevent births
when the person raped refuses subsequently to procreate, in the same way
that members of a group can be led, through threats or trauma, not to
procreate.
85
This interpretation, which was inspired by the Report of the Commission
of Experts, has always seemed a little far-fetched, especially considering that
the crime of rape is more than adequately addressed under paragraph (b) as
causing serious bodily or mental harm.
Forcibly transferring children
The fth and nal act of genocide listed in the relevant provisions of the
statutes, forcibly transferring children of the group to another group, has had
no application in the context of the conicts in the former Yugoslavia and
Rwanda.
Complicity and inchoate forms of the oVence
Paragraph 3 of the genocide provision in the ICTY and ICTR statutes corre-
sponds to article III of the Genocide Convention. In addition to genocide per
se, it says that conspiracy, direct and public incitement, attempt and compli-
city in genocide are also punishable. None of the other crimes within the
jurisdiction of the two tribunals has such a provision. Instead, there is a
general provision dealing with complicity that is applicable to all of the crimes
within the jurisdiction of the tribunals.
86
85
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 507508. Also: Kayishema
et al. (ICTR-95-1-T), Judgment and Sentence, 21 May 1999, para. 117; Rutaganda
(ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 53; Musema (ICTR-
96-13-T), Judgment and Sentence, 27 January 2000, para. 158. Similar views are
expressed in M. Cherif Bassiouni and Peter Manikas, The Law of the International
Criminal Tribunal for the Former Yugoslavia, Irvington-on-Hudson, NY: Transnational
Publishers, 1996, p. 588; Russell-Brown, Rape as an Act of Genocide, at p. 355.
86
Below at pp. 296314.
178 J U R I S D I C T I O N
With respect to genocide, there are legal diYculties that arise in reconciling
the general provision on complicity in the statutes with the specic one
applicable to genocide only. As a Trial Chamber explained in Krstic ,
Article 4(3) [of the ICTY Statute] provides for a broad range of heads of
criminal responsibility, including heads which are not included in Article
7(1), such as conspiracy to commit genocide and attempt to commit
genocide. By incorporating Article 4(3) in the Statute, the drafters of the
Statute ensured that the Tribunal has jurisdiction over all forms of parti-
cipation in genocide prohibited under customary international law. The
consequence of this approach, however, is that certain heads of individual
criminal responsibility in Article 4(3) overlap with those in Article 7(1).
87
Three of the acts listed in paragraph (3) are inchoate or incomplete
oVences, in that they can be committed even if the crime of genocide itself
does not take place. This is the case for conspiracy, incitement and attempt.
Genocide is the only crime within the statutes for which inchoate oVences are
punishable generally.
88
Conspiracy to commit genocide
The legal signicance of the term conspiracy varies depending upon whether
it is being used in the common law or continental systems. Although not
apparent from the text of the provision in the statutes, or for that matter in
the Genocide Convention itself, the drafting history of the Convention is quite
clear that what is intended is conspiracy as it is meant in the common law
system.
89
This means that the Prosecutor must establish that two or more
persons agreed upon a common plan to perpetrate genocide, irrespective of
whether the crime was actually committed. Proof of the material element of
the crime will obviously be facilitated by documentary evidence. But where
this is lacking, circumstantial evidence of the common plan or conspiracy will
be suYcient. According to an ICTR Trial Chamber, [t]he agreement in a
conspiracy is one that may be established by the prosecutor in no particular
manner, but the evidence must show that an agreement had indeed been
87
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 640.
88
Arguably, article 3 of the ICTY Statute includes, implicity, the war crime of ordering that
no quarter be given (pursuant to article 40 of Protocol Additional to the 1949 Geneva
Conventions and Relating to the Protection of Victims of International Armed Con-
icts, (1979) 1125 UNTS 3 and article 4(1) of Protocol Additional to the 1949 Geneva
Conventions and Relating to the Protection of Victims of Non-International Armed
Conicts, (1979) 1125 UNTS 609).
89
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 185191;
Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 423; Nahimana
et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 109.
G E N O C I D E 179
reached. The mere showing of a negotiation in process will not do.
90
In a
charge of conspiracy to commit genocide under article 2(3)(b) of the Statute,
the ICTR Trial Chamber stated that the Prosecutor must be precise when
formulating the counts in the indictment and directed the Prosecutor to
mention the names or other identifying information of the person or persons
the accused is alleged to have conspired with, to commit genocide.
91
The best evidence of conspiracy may take the form of documents proving
the agreement, or testimony by persons who participated in the conspiracy.
But the ICTR has also taken various forms of circumstantial evidence to
constitute proof of a conspiracy to commit genocide.
92
In the Media case,
for example, it said:
The existence of a formal or express agreement is not needed to prove the
charge of conspiracy. An agreement can be inferred from concerted or
coordinated action on the part of the group of individuals. A tacit
understanding of the criminal purpose is suYcient . . . Conspiracy to
commit genocide can be inferred from coordinated actions by indivi-
duals who have a common purpose and are acting within a unied
framework. A coalition, even an informal coalition, can constitute such
a framework so long as those acting within the coalition are aware of its
existence, their participation in it, and its role in furtherance of their
common purpose . . . Conspiracy to commit genocide can be comprised
of individuals acting in an institutional capacity as well as or even inde-
pendently of their links with each other. Institutional coordination can
form the basis of a conspiracy among those individuals who control the
institutions that are engaged in coordinated action. The Chamber con-
siders the act of coordination to be the central element that distinguishes
conspiracy from conscious parallelism.
93
Although there was undoubtedly a conspiracy to commit genocide in
Rwanda, the ICTR has sometimes taken the position that a conviction should
not be registered for conspiracy when the accused is also convicted of geno-
cide as such.
94
But in Niyitegeka, the accused was convicted of conspiracy to
commit genocide after it was established that he met with various leaders of
the interim government in April 1994, including Kayishema and Ruzindana,
90
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 787.
91
Nsengiyumva (ICTR-96-12-I), Decision on the Defence Motion Raising Objections on
Defects in the Form of the Indictment and to Personal Jurisdiction on the Amended
Indictment, 12 May 2000, para. 21.
92
Nyiramasuhuko et al. (ICTR-98-42-T), Decision on Defence Motions for Acquittal
Under Rule 98bis, 16 December 2004, para. 97.
93
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1048.
94
Musema (ICTR-96-13-T), Judgment and Sentence, 27 January 2000, paras. 937941.
Another acquittal for conspiracy has been recorded, but because of insuYcient evidence:
Ntakirutimana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003,
para. 801. In yet another case, charges were dismissed because the elements alleged in the
180 J U R I S D I C T I O N
to plan attacks against Tutsi in Bisesero, the whole with the intent to destroy
the Tutsi ethnic group;
95
he was found guilty of both conspiracy to commit
genocide and of genocide. Judges in subsequent cases have noted the diVerent
approaches, without taking sides.
96
Direct and public incitement to commit genocide
Incitement to commit a crime is a form of punishable complicity, sometimes
labelled as abetting, to the extent that another person commits the crime
itself. It is more unusual to punish incitement even in the absence of commis-
sion of the crime itself. In order to focus on the preventive dimension of
the prohibition of genocide, the drafters of the 1948 Genocide Convention
decided to make the inchoate crime of direct and public incitement a
punishable oVence. Direct and public incitement to commit genocide is an
international crime, even in the absence of evidence that genocide was actually
committed as a result of the incitement.
97
It is included in article III of the
1948 Convention, and accordingly nds its way into paragraph 3 of article 4 of
the ICTY Statute and article 2 of the ICTR Statute.
The SCSL does not have jurisdiction over the crime of genocide. There
have been no prosecutions for direct and public incitement by the ICTY, and
it does not seem that hate propaganda, at least in its crudest manifestations,
was a signicant feature of the conicts in the former Yugoslavia. The same
cannot be said for Rwanda, where grotesque caricatures in racist newspapers
and broadcast appeals to participate in killings marked the 1994 genocide.
98
According to a Trial Chamber, in Akayesu,
[t]he public element of incitement to commit genocide may be better
appreciated in light of two factors: the place where the incitement
occurred and whether or not assistance was selective or limited . . . The
direct element of incitement implies that the incitement assume a direct
indictment were ruled not to constitute a suYcient basis for a conviction on conspiracy:
Ntagerura et al. (ICTR-99-46-T), Judgment and Sentence, 25 February 2004, paras. 70,
665, 668.
95
Niyitegeka (ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 427. Jean
Kambanda was also found guilty of conspiracy to commit genocide, but it was as a
result of a guilty plea in which the legal issues were not debated, so the judgment is of
diminished value as precedent: Kambanda (ICTR 97-23-S), Judgment and Sentence, 4
September 1998, para. 40(2).
96
Kajelijeli (ICTR-98-44A-T), Judgment and Sentence, 1 December 2003, para. 793.
97
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1029.
Followed by the Supreme Court of Canada in Mugesera v. Canada (MCI), 2005 SCC 40,
para. 85.
98
See: William A. Schabas, Hate Speech in Rwanda: The Road to Genocide, (2000) 46
McGill Law Journal 141.
G E N O C I D E 181
form and specically provoke another to engage in a criminal act, and that
more than mere vague or indirect suggestion goes to constitute direct
incitement.
99
ATrial Chamber dismissed a count of direct and public incitement to commit
genocide at the close of the Prosecutors case when all that had been shown
was that the accused told a municipal leader during an assembly at a stadium
in Gisenyi that he should reinforce roadblocks and warn his Muslim friends
not to continue hiding Tutsi in their houses.
100
Because genocide was actually committed in Rwanda, prosecution for
direct and public incitement may seem inappropriate. Those who gave
speeches or otherwise urged others to commit genocide, whether in public
or in private, are guilty of complicity, which is covered by articles 2(3)(e) and
6(1) of the ICTR Statute. For this reason, many of the rulings of the ICTR
Trial Chambers appeared to confuse the inchoate form of incitement with
incitement as complicity, and the judgments convict oVenders of direct and
public incitement after concluding that genocide was actually committed.
101
In Nahimana, a Trial Chamber said that evidence that genocide actually
occurred would be helpful in conrming that those who incited genocide
actually intended this, and this seems only to further confuse the point.
102
The leading case on the use of hate propaganda to provoke the Rwandan
genocide is that of Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan
Ngeze, who were found guilty of both genocide and direct and public incite-
ment to commit genocide. The three were involved in various media, includ-
ing the radio station Radio-television Libre Milles Collines (RTLM)
103
and the
racist newspaper Kangura. An example, broadcast on RTLM on 4 June 1994,
at the height of the killing, and that was cited by the Tribunal, shows how
blatant the appeals actually were:
99
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras. 556557. Also Niyitegeka
(ICTR-96-14-T), Judgment and Sentence, 16 May 2003, para. 431; Nahimana et al.
(ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 978.
100
Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal, 2
February 2005, para. 23.
101
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 560; Kambanda (ICTR-97-
23-S), Judgment and Sentence, 4 September 1998, para. 40; Niyitegeka (ICTR-96-14-T),
Judgment and Sentence, 16 May 2003, para. 437; Ruggiu (ICTR-97-32-I), Judgment and
Sentence, 1 June 2000. An acquittal has been recorded for direct and public incitement,
based both on the vagueness of the allegations and the insuYciency of the evidence:
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 438.
102
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1029.
103
The ICTR had earlier accepted the guilty plea of a Belgian journalist who had worked
for RTLM during the genocide: Ruggiu (ICTR-97-32-I), Judgment and Sentence, 1 June
2000. Kambanda had also pleaded guilty to charges respecting his involvement with
RTLM: Kambanda (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para. 39.
182 J U R I S D I C T I O N
They should all stand up so that we kill the Inkotanyi [slang term for Tutsi]
and exterminate them . . . The reason we will exterminate them is that they
belong to one ethnic group. Look at the persons height and his physical
appearance. Just look at his small nose and then break it.
104
The judgment provides a detailed discussion of issues relating to hate propa-
ganda in international law, and the tension that exists between the prohibition
and the need to protect freedom of expression. The Trial Chamber notes that
freedom of expression and freedom from discrimination are not incompatible
principles of law.
105
Ina conclusionof interest not only for international criminal
law but also for international human rights law, the Chamber said hate speech
that expresses ethnic and other forms of discrimination violates the norm of
customary international law prohibiting discrimination.
106
Attempted genocide
There have been no indictments for attempt to commit genocide.
Complicity in genocide
Complicity in the commission of genocide refers to various forms of sec-
ondary participation in the crime. The reference to complicity in paragraph
3(e) of the genocide provision overlaps with article 7(1) of the ICTY Statute
and article 6(1) of the ICTR Statute, which state that [a] person who planned,
instigated, ordered, committed or otherwise aided and abetted in the plan-
ning, preparation or execution of a crime listed in the statutes shall be
individually responsible for the crime. Described as redundancy in some
judgments, it would appear that no particular signicance was attached to
this when the statutes were being drafted, and that it is the innocent conse-
quence of the verbatim incorporation of article III of the Genocide Conven-
tion in the statutes.
107
An ICTY Trial Chamber, in Stakic , considered the
overlap between article 7(1) and article 4(3)(e), describing the latter as lex
specialis and the former as lex generalis. Under general principles of law, this
means that in the event of conict between the two principles, the more
specialised provision should take precedence. But the Trial Chamber
also considered an alternative approach to interpretation, by which the two
104
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 959.
105
Ibid., para. 1074.
106
Ibid., para. 1076. See: Gregory S. Gordon, A War of Media, Words, Newspapers and
Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International
Law of Hate Speech, (2004) 24 Virginia Journal of International Law 139.
107
Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 640; Semanza (ICTR-97-20-T),
Judgment and Sentence, 15 May 2003, para. 391.
G E N O C I D E 183
provisions are harmonised. In this way, the modes of complicity set out in
some detail in article 7(1) are simply read into the more laconic terms of
article 4(3)(e). Either way, the Trial Chamber said that the result would be the
same.
108
An ICTR Trial Chamber, in Semanza, said that there is no material
distinction between complicity in genocide and the broad denition ac-
corded to aiding and abetting.
109
The ICTY Appeals Chamber, in Krstic , said
that the two provisions [article 7(1) and article 4(3)] can be reconciled,
because the terms complicity and accomplice may encompass conduct
broader than that of aiding and abetting.
110
Subsequently, a Trial Chamber
noted that this comment was obiter dicta, holding that complicity in genocide
should be equated with aiding and abetting genocide.
111
This appears now to
be the view of the ICTR Appeals Chamber which, in Ntakirutimana, held that
aiding and abetting constitutes a form of complicity, suggesting that compli-
city under Article 2 of the ICTR Statute and Article 4 of the ICTY Statute
would also encompass aiding and abetting.
112
The charge of complicity in genocide has not proven to be particularly
signicant, because as a general rule persons found guilty of complicity in
genocide are also convicted as perpetrators of genocide.
113
Because complicity
requires the existence of a principal perpetrator, two decisions focused not on
the acts of the accused so much as on the presence of genocide committed by
others. This inquiry has led to several acquittals. In eVect, the Prosecutor
failed to prove that genocide had been committed within camps in the former
Yugoslavia, with the consequence that the accused could not be convicted for
conspiracy in genocide.
114
Aiding and abetting is discussed in detail in chapter 9.
115
108
Stakic (IT-97-24-T), Decision on Rule 98bis Motion for Judgment of Acquittal, 31
October 2002, para. 48. Also: Stakic (IT-97-24- T), Judgment, 31 July 2003, para. 531.
109
Semanza (ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 394.
110
Krstic (IT-98-33-A), Judgment, 19 April 2004, para. 139.
111
Milos evic (IT-02- 54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004,
para. 297.
112
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004,
para. 500.
113
E.g., Krstic (IT-98-33-T), Judgment, 2 August 2001, para. 652; Sikirica et al. (IT-95-8-T),
Judgment on Defence Motions to Acquit, 3 September 2001; Akayesu (ICTR-96-4-T),
Judgment, 2 September 1998, para. 461.
114
Jelisic (IT-95-10-T), Judgment, 14 December 1999; Stakic (IT-97-24-T), Judgment, 31
July 2003, para. 561.
115
See pp. 302314.
184 J U R I S D I C T I O N
7
Crimes against humanity
Crimes against humanity are at the core of the subject-matter jurisdiction of
the three tribunals.
1
According to the 2005 Darfur Commission, crimes
against humanity are particularly odious oVences constituting a serious
attack on human dignity or a grave humiliation or degradation of one or
more human beings (for instance, murder, extermination, enslavement,
deportation or forcible transfer of population, torture, rape and other forms
of sexual violence, persecution, enforced disappearance of persons).
2
Not only
are crimes against humanity the common denominator of the three statutes,
they are also central to virtually all of the indictments.
Genocide is often described as an aggravated form of crime against human-
ity, and while such statements may be an oversimplication, that the two
categories of crime are cognates can be seen from the indictment policy of
the Prosecutors and the judgments themselves. There have been no convic-
tions for genocide where a conviction for crimes against humanity could not
also have been sustained. Similarly, it is extremely rare for any of the tribunals
to convict a person for war crimes that are not accompanied by charges of
crimes against humanity.
3
The real umbrella rule of the tribunals is the
prohibition of crimes against humanity, a relatively broad concept that cap-
tures most forms of atrocity committed against innocent civilians, includ-
ing war crimes in the classic sense.
4
If the statutes of the three tribunals
only contemplated crimes against humanity within their subject-matter
1
Generally, see: Simon Chesterman, An Altogether DiVerent Order: Dening the Ele-
ments of Crimes Against Humanity, (2000) 10 Duke Journal of Comparative and Inter-
national Law 307; M. Cherif Bassiouni, Crimes Against Humanity, 2nd edn, Dordrecht/
Boston/London: Kluwer Law, 1999; Guenael Mettraux, International Crimes and the Ad
Hoc Tribunals, Oxford: Oxford University Press, 2005, pp. 147192.
2
Report of the International Commission of Inquiry on Violations of International
Humanitarian Law and Human Rights Law in Darfur, UN Doc. S/2005/60, para. 178.
3
In fact, there is only one conviction for war crimes [along with crimes against human-
ity]: Strugar (IT-01-42-T), Judgment, 31 January 2005.
4
In Galic (IT-98-29-T), Judgment and Opinion, 5 December 2003, the accused was
convicted of the crime against humanity of inhumane acts for shelling of and sniping
at civilians in Sarajevo.
185
jurisdiction, this would change little in terms of their operations, except to
reduce the length of trials and the legal debates about arcane subjects. Crimes
against humanity also have much in common with international human
rights law, and the language in the relevant provisions reects this.
Prosecutions for crimes against humanity have provided the tribunals
with the opportunity to turn a set of abstract concepts into a fully edged
and well-dened body of law.
5
Given the generality of the concept of crimes
against humanity, it is striking that the provisions in the three statutes
are all so diVerent from one another. The rst of the three to be adopted,
article 5 of the ICTY Statute, is very broadly modelled on article 6(c) of the
Nuremberg Charter, which was the rst codication of crimes against
humanity:
6
The International Tribunal [for the former Yugoslavia] shall have the
power to prosecute persons responsible for the following crimes when
committed in armed conict, whether international or internal in char-
acter, and directed against any civilian population:
a. murder;
b. extermination;
c. enslavement;
d. deportation;
e. imprisonment;
f. torture;
g. rape;
h. persecutions on political, racial and religious grounds;
i. other inhumane acts.
The Nuremberg Charter did not list, as punishable acts, either imprisonment
or rape. The inclusion of rape in the ICTY and ICTR statutes has often been
cited as a progressive development in international criminal law.
7
The Nur-
emberg Charter also required a link or nexus with any crime within the
jurisdiction of the Tribunal, which had the practical consequence of prevent-
ing convictions except for crimes against humanity committed in association
5
Mettraux, International Crimes and the Ad Hoc Tribunals, p. 148.
6
Agreement for the Prosecution and Punishment of Major War Criminals of the Eur-
opean Axis, and Establishing the Charter of the International Military Tribunal (IMT),
(1951) 82 UNTS 279, annex, art. 6(c): Crimes Against Humanity: namely, murder,
extermination, enslavement, deportation, and other inhumane acts committed against
any civilian population, before or during the war, or persecutions on political, racial or
religious grounds in execution of or in connection with any crime within the jurisdic-
tion of the Tribunal, whether or not in violation of the domestic law of the court where
perpetrated.
7
E.g., Theodor Meron, War Crimes in Yugoslavia and the Development of International
Law, (1994) 88 American Journal of International Law 78, at p. 84.
186 J U R I S D I C T I O N
with the war itself.
8
Although Nuremberg heard much evidence about pre-
1939 persecution of the Jews and others, no convictions for any of these acts
were entered because they occurred prior to the outbreak of the war. Using
diVerent language, the introductory paragraph of article 5 of the ICTY Statute
appears to seek the same result, specifying that crimes against humanity
must be committed in armed conict, whether international or internal in
character.
Article 3 of the ICTR Statute presents an identical list of punishable acts,
but its introductory paragraph diVers slightly from article 5 of the ICTY
Statute. The word directed is replaced with as part of a widespread or
systematic attack. Moreover, the reference to armed conict is eliminated,
but another requirement is added, namely that the attack be committed on
national, political, ethnic, racial or religious grounds.
Article 2 of the SCSL Statute makes two changes to the list of punishable
acts. To rape, a list of other gender crimes is added: sexual slavery, enforced
prostitution, forced pregnancy and any other form of sexual violence. The
paragraph on persecution adds the word ethnic to the other three grounds,
and replaces and with or. Both of these changes seem inspired by the
language in article 7 of the Rome Statute. The preliminary paragraph in the
SCSLs crimes against humanity provision is essentially the same as article 3
of the ICTR Statute, except that the reference to national, political, ethnic,
racial or religious grounds has been deleted, in keeping with contemporary
case law.
Presence of an armed conict
Only the ICTY Statute refers to the presence of armed conict, stating in the
introductory paragraph to article 5 that crimes against humanity are punish-
able when committed in armed conict, whether international or internal
in character. Without much doubt, it can be stated that the drafters of the
ICTY Statute believed that such a limitation was imposed by customary
international law, and that to prosecute crimes against humanity in the
absence of armed conict would violate the maxim nullum crimen sine lege.
9
In Tadic , the Appeals Chamber said this requirement of armed conict was
8
For a discussion of the history of crimes against humanity, see Erdemovic (IT-96-22-A),
Separate and Dissenting Opinion of Judge Li, 7 October 1997. For a more detailed
review: Bassiouni, Crimes Against Humanity.
9
See the Secretary-Generals report: Crimes against humanity are aimed at any civilian
population and are prohibited regardless of whether they are committed in an armed
conict, international or internal in character. Report of the Secretary-General Pur-
suant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704
(1993), para. 47.
C R I M E S A G A I N S T H U M A N I T Y 187
inconsistent with customary law,
10
and its holding was subsequently endorsed
in the text of the Rome Statute of the International Criminal Court.
11
The
ICTY Appeals Chamber has explained that in drafting Article 5 of the
Tribunals Statute and imposing the additional jurisdictional requirement
that crimes against humanity be committed in armed conict, the Security
Council intended to limit the jurisdiction of the Tribunal to those crimes
which had some connection to armed conict in the former Yugoslavia.
12
This is reading a lot into the alleged intent of the Security Council, based on
a rather sparse record. An equally plausible explanation is that the lawyers
in the Secretariat who drafted the Statute believed that the nexus with armed
conict was still, in 1993, an element of the customary law concept of crimes
against humanity.
The cases have described the presence of an armed conict in article 5
of the ICTY Statute as a purely jurisdictional requirement,
13
holding that
there is no requirement of a nexus between the punishable act and an armed
conict, comparable to the situation with respect to war crimes.
14
Rather, all
that is necessary is proof there was an armed conict and that objectively
the acts of the accused are linked geographically as well as temporally with
the armed conict.
15
In an attempt to clarify this issue, the ICTY Appeals
Chamber stated:
The Appeals Chamber does not accept that the jurisdictional requirement
of Article 5 requires the Prosecution to establish that an armed conict
existed within the State (or region) of the Former Yugoslavia in which the
charged Article 5 crime is alleged to have been committed. There can be
situations where an armed conict is ongoing in one state and ethnic
civilians of one of the warring sides, resident in another state, become
victims of a widespread and systematic attack in response to that armed
conict. All that is required under Article 5 of the Statute is that the
prosecution establish that an armed conict is suYciently related to the
Article 5 crime with which the accused is charged. While, as previous
10
Tadic (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 141; Tadic (IT-94-1-A), Judgment, 15 July 1999, para.
251; Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 23.
11
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 7.
12
S
elebic i case, the Prosecutor had alleged that the inhumane condi-
tions in the prison camp amounted to wilfully causing great suVering or
serious injury to body or health, but the Trial Chamber held that they were
more properly charged as inhuman treatment.
121
114
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 442; Kordic et al. (IT-95-
14/2-T), Judgment, 26 February 2001, para. 256.
115
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 226 (concerning cruel
treatment as a violation of common article 3, where the same considerations apply).
116
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 256. Also: Kvoc ka et al.
(IT-98-30/1-T), Judgment, 2 November 2001, para. 161 (concerning cruel treatment as
a violation of common article 3, where the same considerations apply).
117
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, para. 442. Also: Kordic et al.
(IT-95-14/2-T), Judgment, 26 February 2001, para. 245.
118
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 339343.
119
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 245.
120
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 156.
121
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998.
WA R C R I M E S 251
Extensive destruction and appropriation of property
The grave breach of extensive destruction and appropriation of property, not
justied by military necessity and carried out unlawfully and wantonly, is set
out in paragraph (d) of article 2 of the ICTY Statute. According to the case
law, two types of property are contemplated by this provision: property,
regardless of whether or not it is in occupied territory, but that is generally
protected by the Geneva Conventions, such as civilian hospitals, medical
aircraft and ambulances; and property protected under article 53 of the fourth
Geneva Convention, that is, real or personal property situated in an occupied
territory when the destruction was not absolutely necessary for military
operations.
122
A single act, such as the bombing of a hospital, may meet the
denition in exceptional cases, but by and large the destruction must be
extensive or on a large scale (unlawful and wanton).
123
The perpetrator must
act with the intent to destroy the property or else behave with reckless
disregard of the likelihood of its destruction.
124
Compelling service in the forces of a hostile power
There have been no indictments for the grave breach of compelling a prisoner
of war or a civilian to serve in the forces of a hostile power which is listed in
article 2(e) of the ICTY Statute.
Deprivation of the rights of fair and regular trial
There have been no indictments for this grave breach of wilfully depriving a
prisoner of war or a civilian of the rights of fair and regular trial, which is
listed in article 2(f) of the ICTY Statute.
Unlawful deportation or transfer
This grave breach (article 2(g) of the ICTY Statute) consists of three distinct
acts: deportation, transfer and connement.
125
All of these acts, committed
against civilians, were features of the atrocities committed during the wars in
the former Yugoslavia. Use of the word unlawful indicates that the acts in
question may not be prohibited under certain circumstances.
Deportation or transfer involves the movement of individuals, under
duress, from where they reside to a place that is not of their choosing.
122
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, paras. 574580.
123
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 335341; Blas kic (IT-
95-14-T), Judgment, 3 March 2000, para. 157.
124
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 335341.
125
Joanna Dingwall, Unlawful Connement as a War Crime: The Jurisprudence of the
Yugoslav Tribunal and the Common Core of International Humanitarian Law Applic-
able to Contemporary Armed Conicts, (2004) 9 Journal of Conict and Security Law
133.
252 J U R I S D I C T I O N
Deportation would involve such transfer when an international border is
crossed. It must be proven that the accused intentionally perpetrated an act
or omission to eVect such deportation or transfer that was not motivated by
the security of the population or imperative military reasons. The Prosecutor
must establish the intent to have the person removed, which implies the aim
that the person is not returning.
126
With respect to connement, article 43 of the fourth Geneva Convention
recognises the practice of internment of civilians during military occupation,
but subjects it to certain conditions. This has been held to be the only
circumstance in which connement of civilians is lawful. The Geneva Con-
ventions do not grant an absolute right to freedom of movement and,
pursuant to articles 5, 27, 41, 42 and 43 of the fourth Geneva Convention,
when civilians are considered to pose a threat to its security, they may be
interned. States have a broad discretion to decide whether civilians pose a
threat to their security, but internment must be exceptional and may never be
used collectively. Furthermore, an initially lawful internment becomes illegal
when the basic procedural rights stated in article 43 of the fourth Geneva
Convention are not upheld.
127
As the Appeals Chamber has explained:
It is perfectly clear from the provisions of Geneva Convention IV. . . that
there is no such blanket power to detain the entire civilian population of a
party to the conict in such circumstances, but that there must be an
assessment that each civilian taken into detention poses a particular risk to
the security of the State . . . [T]he mere fact that a person is a national of,
or aligned with, an enemy party cannot be considered as threatening the
security of the opposing party where he is living, and is not, therefore, a
valid reason for interning him.
128
In C
elebic i,
[i]t is indisputable that common Article 3, which sets forth a minimum
core of mandatory rules, reects the fundamental humanitarian principles
which underlie international humanitarian law as a whole, and upon which
the Geneva Conventions in their entirety are based . . . It is both legally and
morally untenable that the rules contained in common Article 3, which
constitute mandatory minimum rules applicable to internal conicts, in
which rules are less developed than in respect of international conicts,
would not be applicable to conicts of an international character. The rules
of common Article 3 are encompassed and further developed in the body of
195
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, para. 124; Blas kic (IT-95-14-
T), Judgment, 3 March 2000, para. 180; Jelisic (IT-95-10-T), Judgment, 14 December
1999, para. 34.
196
Tadic (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 616.
WA R C R I M E S 267
rules applicable to international conicts. It is logical that this minimum be
applicable to international conicts as the substance of these core rules is
identical. [S]omething which is prohibited in internal conicts is necessa-
rily outlawed in an international conict where the scope of the rules is
broader.
197
But this leads to a bit of an absurdity, that only further underscores the
theoretical incoherence of the attempts to reconcile articles 2 and 3 of the
ICTY Statute, and the holding that article 3 covers all serious violations of
international humanitarian law not covered in articles 2, 4 and 5. Why would
a prosecutor attempt to prove a grave breach, which requires not only
evidence of an international armed conict (rather than an armed conict)
but also a demonstration that the victim was a protected person (rather than
a person taking no active part in the hostilities),
198
when he or she can
achieve a conviction more easily and without these complex evidentiary issues
by charging under article 3 of the Statute?
The ICTR and SCSL statutes codify serious violations of common article
3,
199
although the list covers essentially all violations of the provision. The
Rome Statute does the same thing.
200
ICTY Trial Chambers have said
that customary international law imposes criminal responsibility for serious
violations of common article 3
201
but sometimes simply for common article
3.
202
Sometimes the ICTY has spoken of serious violations of common
article 3.
203
A serious violation of common article 3 of Additional Protocol
II consists of a breach of a rule protecting important values [which] must
involve grave consequences for the victim.
204
However, implicit in the reference to serious violations is the suggestion
that not all violations of common article 3 incur individual criminal
197
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 140150; Naletilic et al.
(IT-98-34-T), Judgment, 31 March 2003, para. 228.
198
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 233.
199
ICTR Statute, art. 4; SCSL Statute, art. 3 (emphasis added).
200
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art.
8(2)(c).
201
Tadic (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 134; Blas kic (IT-95-14-T), Judgment, 3 March 2000,
para. 176.
202
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, para. 228.
203
Tadic (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 94; Blas kic (IT-95-14-T), Judgment, 3 March 2000,
para. 176.
204
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 616; Musema (ICTR-96-13-
T), Judgment and Sentence, 27 January 2000, para. 286; Bagilishema (ICTR-95-1A-T),
Judgment, 7 June 2001, para. 102; Semanza (ICTR-97-20-T), Judgment and Sentence, 15
May 2003, para. 370; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May
1999, para. 184.
268 J U R I S D I C T I O N
responsibility at customary international law. In fact, in one case, a Trial
Chamber held that the term violence to life and person, which is a violation
of common article 3, did not give rise to individual criminal responsibility: In
the absence of any clear indication in the practice of states as to what the
denition of the oVence of violence to life and person identied in the
Statute may be under customary law, the Trial Chamber is not satised that
such an oVence giving rise to individual criminal responsibility exists under
that body of law.
205
The common article 3 provisions in the ICTR and SCSL statutes also
include serious violations of Additional Protocol II. Because Additional Pro-
tocol II was intended to update and complete common article 3, much of the
language in the treaty is very similar to that of its predecessor. The Rome
Statute, on the other hand, is faithful to the distinction between the two
instruments. Its common article 3 provision dutifully respects the text of
the Conventions.
206
Developments in the law of war crimes applicable to non-
international armed conict engendered by Additional Protocol II are dealt
with in the Rome Statute in a distinct provision,
207
with its own original
threshold.
208
Violence to life and person
Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture is set out in article 3(1)(a) of the Geneva Con-
ventions, and was slightly modied when incorporated into Additional Pro-
tocol II, which speaks of violence to the life, health and physical or mental
well-being of persons, in particular murder as well as cruel treatment such as
torture, mutilation or any form of corporal punishment.
209
It is the Addi-
tional Protocol II text that is reproduced in article 4 of the ICTR Statute and
article 3 of the SCSL Statute. A few indictments have alleged the general
expression violence to life and person, but in practice it appears to have been
applied with reference to the more specic punishable acts of murder
and cruel treatment, including torture.
210
There have been no prosecutions
involving the application of corporal punishment.
Murder Although the grave breach provisions of the Geneva Conventions
refer to wilful killing, common article 3 refers to murder. The war crime of
205
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 203.
206
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art.
8(2)(c).
207
Ibid., art. 8(2)(e).
208
Ibid., art. 8(2)(f).
209
Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of
Victims of Non-International Armed Conicts, (1979) 1125 UNTS 609, art. 4(a).
210
Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 182.
WA R C R I M E S 269
murder is for all practical purposes identical in a legal sense to the grave
breach of wilful killing, the crime against humanity of murder and the act of
genocide of killing.
211
As was said in the C
elebic i (Prosecutor v. Delalic , Case No. IT-96-21 (ICTY Nov. 16, 1998)) Decision of
the International Criminal Tribunal for the Former Yugoslavia, (1999) 25 North
G E N E R A L P R I N C I P L E S O F L AW 315
it has had little in the way of concrete results. Although there have been several
convictions on the basis of superior responsibility by both the ICTY and the
ICTR, all of these, with one exception, have involved oVenders who were
also convicted as either principal perpetrators or accomplices.
134
One ICTY
Trial Chamber has even described the superior responsibility inquiry as a
waste of judicial resources in cases where liability as a principal perpetrator
or accomplice has already been established.
135
In most cases, evidence that
a superior had reason to know of the acts of the principal perpetrator
has been superuous, given the existence of evidence that the commander
actually knew, in which case guilt is established as a full-blown accomplice
or co-perpetrator. Otherwise, the joint criminal enterprise theory oVers many
Carolina Journal of International Law and Commercial Regulation 167; Christopher
N. Crowe, Command Responsibility in the Former Yugoslavia: The Chances for Suc-
cessful Prosecution, (1994) 29 University of Richmond Law Review 191; Mirjan Damaska,
The Shadow Side of Command Responsibility, (2001) 49 American Journal of Com-
parative Law 455; Kirsten M. F. Keith, The Mens Rea of Superior Responsibility as
Developed by ICTY Jurisprudence, (2001)14 Leiden Journal of International Law 617;
Howard S. Levie, Command Responsibility, (199798) 8 Journal of Legal Studies 1;
Matthew Lippman, Humanitarian Law: The Uncertain Contours of Command Respon-
sibility, (2001) 9 Tulsa Journal of Comparative and International Law 1; Matthew
Lippman, The Evolution and Scope of Command Responsibility, (2000) 13 Leiden
Journal of International Law 145; A. D. Mitchell, Failure to Halt, Prevent or Punish: The
Doctrine of Command Responsibility for War Crimes, (2000) 22 Sydney Law Review
381; Daryl A. Mundis, Crimes of the Commander: Superior Responsibility under
Article 7(3) of the ICTY Statute, in Gideon Boas and William A. Schabas, eds., Inter-
national Criminal Developments in the Case Law of the ICTY, The Hague: Martinus
NijhoV, 2003, pp. 239276; Danesh Sarooshi, Command Responsibility and the Blas kic
Case, (2001) 50 International and Comparative Law Quarterly 452; Olivia Q. Swaak-
Goldman, International Criminal Tribunal for the Former Yugoslavia Command
Responsibility Multiple Defendants Rape constituting Torture as Grave Breach of
1949 Geneva Conventions and Violation of Laws or Customs of War Characteriza-
tion of Conict in Bosnia and Herzegovina, (1999) 93 American Journal of Interna-
tional Law 514; Jamie A. Williamson, Command Responsibility in the Case Law of the
International Criminal Tribunal for Rwanda, (2002) 13 Criminal Law Forum 365;
Alexander Zahar, Command Responsibility of Civilian Superiors for Genocide,
(2001) 14 Leiden Journal of International Law 591.
134
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001 (with respect to Kordic;
C
erkez was acquitted of charges based on art. 7(3)); Delalic et al. (IT-96-21-T), Judg-
ment, 16 November 1998 (with respect to Mucic; Delalic and Delic were acquitted of
charges based on art. 7(3)); Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 495
(subsequently acquitted on appeal with respect to art. 7(3)); Aleksovski (IT-95-14/1-A),
Judgment, 24 March 2000; Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001
(the four defendants charged under art. 7(3) were all acquitted, although convicted on
the basis of art. 7(1)); Krnojelac (IT-97-25-T), Judgment, 15 March 2002. The ICTR
cases almost invariably reect a confusion between liability based on article 6(1) and
6(3), and impose the multiple ndings of guilt that the ICTY Appeals Chamber has
subsequently declared to be an error of law.
135
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 466.
316 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
of the same advantages to the Prosecutor but without the need to establish the
superiorsubordinate relationship.
The exception is Strugar, in which the accused, a Lieutenant-General in the
Yugoslav Peoples Army (JNA), was charged with respect to a military cam-
paign in and around Dubrovnik, in Croatia, in late 1991. The Prosecutor
contended that there was suYcient circumstantial evidence to prove that
General Strugar had actually ordered the commission of war crimes,
136
but
the Trial Chamber did not concur.
137
The evidence showed that General
Strugar had ordered an attack on Srd, apparently a military target, but not
on the neighbouring Old Town of Dubrovnik. Nevertheless, it was clearly
established that JNA artillery came to re on Dubrovnik, including the Old
Town, without regard to military targets, and did so deliberately, indiscrimi-
nately and extensively over a prolonged time.
138
The Trial Chamber did not
even consider that there was a substantial likelihood that Strugar could
expect his troops to shell the Old Town, closing the door on liability on the
basis of a joint criminal enterprise. This assessment also ruled out the possi-
bility that he had reason to know that his troops might bombard the Old
Town. However, as the attack unfolded, General Strugar learned of a protest
from the European Commission Monitoring Mission about the shelling of
the Old Town. According to the Trial Chamber,
the risk that this was occurring was so real, and the implications were so
serious, that the events concerning General Kadijevic ought to have
sounded alarm bells to the Accused, such that at the least he saw the
urgent need for reliable additional information, i.e. for investigation, to
better assess the situation to determine whether the JNA artillery were in
fact shelling Dubrovnik, especially the Old Town, and doing so without
justication, i.e. so as to constitute criminal conduct.
139
It should have been starkly obvious to General Strugar that there was a need
to make an immediate and direct order to those commanding and leading
the attacking forces, especially the artillery [about] the special status of the
Old Town and the existing prohibitions on shelling it, and of the limitations
or prohibition, if any, on shelling the Old Town.
140
Moreover, Strugar subse-
quently took no measures to ensure that the perpetrators were disciplined,
although this was within his authority. Strugar represents a classic if exceedingly
rare case of the eVective application of superior responsibility.
Whether superior responsibility applied to non-international armed con-
ict breached the principle of legality has been argued before the ICTY.
141
136
Strugar (IT-01-42-T), Judgment, 31 January 2005, para. 335.
137
Ibid., para. 338.
138
Ibid., para. 345.
139
Ibid., para. 418.
140
Ibid., para. 423.
141
There is ample authority for the proposition that superior responsibility in the context
of international armed conict is consistent with customary international law. See:
G E N E R A L P R I N C I P L E S O F L AW 317
There were some solid points in favour of the challenge, including the lack of
a superior responsibility provision in Additional Protocol II corresponding to
the one in Additional Protocol I and the relative absence of this form of
liability in national criminal law. But the Appeals Chamber dismissed the
motion.
142
The inclusion of superior responsibility within the ICTR and SCSL
statutes, as well as the Rome Statute of the International Criminal Court,
testies to its general acceptance by States and its solid claim to status as a
norm of customary international law.
The knowledge requirement is satised when it is proven that the superior
either knew or had reason to know of the conduct of the principal perpe-
trator. Where the superior had real knowledge, it will often be more appro-
priate to deal with the case as one of full complicity or even co-perpetration.
As one Trial Chamber noted,
[I]n cases where the evidence presented demonstrates that a superior
would not only have been informed of subordinates crimes committed
under his authority, but also exercised his powers to plan, instigate or
otherwise aid and abet in the planning, preparation or execution of these
crimes, the type of criminal responsibility incurred may be better char-
acterised by Article 7(1). Where the omissions of an accused in a position
of superior authority contribute (for instance by encouraging the perpe-
trator) to the commission of a crime by a subordinate, the conduct of the
superior may constitute a basis for liability under Article 7(1).
143
With respect to the more diYcult case, where it is conceded that convin-
cing evidence of the superiors knowledge is lacking, but that he or she
nevertheless had reason to know, the ICTY Appeals Chamber has said that
this condition should be interpreted with reference to article 86 of Addi-
tional Protocol I, where the standard is described in slightly diVerent words:
having information enabling them to conclude. Thus, the Prosecutor must
establish that the superior had in his possession information of a nature,
which at the least, would put him on notice of the risk of such oVences
by indicating the need for additional investigation in order to ascertain
whether such crimes were committed or were about to be committed by his
Kordic et al. (IT-95-14/2-PT), Decision on the Joint Defence Motion to Dismiss for Lack
of Jurisdiction Portions of the Amended Indictment Alleging Failure to Punish Liabi-
lity, 2 March 1999; Kayishema et al. (ICTR-95-1-T), Judgment and Sentence, 21 May
1999, para. 209; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 290; Krajisnik (IT-
00-39 & 40-PT), Judgment on Motion Challenging Jurisdiction With Reasons, 22
September 2000, para. 24. The case law records one hesitant voice: Krajisnik (IT-00-39 &
40-PT), Separate Opinion of Judge Bennouna, 22 September 2000, para. 24.
142
Hadzihasanovic et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging
Jurisdiction in Relation to Command Responsibility, 16 July 2003.
143
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 371.
318 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
subordinates.
144
The superior does not necessarily have a duty to seek out
such information. According to the ICTY Appeals Chamber, responsibility
can be imposed for deliberately refraining from nding out but not for
negligently failing to nd out.
145
In making these determinations about what the superior knew or had
reason to know, various criteria will be considered by the tribunals: the
number, type and scope of illegal acts; the time during which they occurred;
the number and type of troops involved; the logistics involved, if any; the
geographical location of the acts; their widespread occurrence; the tactical
tempo of operations; the modus operandi of similar illegal acts; the oYcers and
staV involved and the location of the commander at that time.
146
The more
distant the superior, in a physical sense, the more indicia will be required in
order to establish knowledge.
147
It is not necessary for the Prosecutor to
establish a causal link between a commanders failure to prevent subordinates
crimes and the occurrence of the crimes.
148
In some respects, superior responsibility takes the form of an autonomous
oVence. In eVect, the culpable conduct of a person convicted on this basis,
to the extent that the superior had reason to know that the subordinate
would commit or had committed genocide, crimes against humanity or war
crimes and failed to act appropriately, is perhaps better characterised as a form
of criminal negligence.
149
Indeed, in incorporating superior responsibility
into their national legal systems, this is what countries like Canada and
Germany have done. They have acknowledged the conundrum of convicting
a person for genocide, which requires the very specic intent to destroy a
group, or of the crime against humanity of persecution, which requires
evidence of a discriminatory intent or motive, based only on evidence that
an individual had reason to know of prohibited conduct. But the ad hoc
tribunals have been very resistant to any suggestion that superior responsibility
is merely an oVence of negligence. The ICTR Appeals Chamber has warned
that [r]eferences to negligence in the context of superior responsibility are
likely to lead to confusion of thought.
150
144
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 241. Also: Delalic et al.
(IT-96-21-T), Judgment, 16 November 1998, para. 383; Bagilishema (ICTR-95-1A-T),
Judgment, 7 June 2001, para. 46; Semanza (ICTR-97-20-T), Judgment and Sentence, 15
May 2003, para. 405.
145
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 406 (emphasis in original).
146
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, paras. 427, 437.
147
Naletilic et al. (IT-98-34-T), Judgment, 31 March 2003, para. 72.
148
Ibid., para. 77.
149
Occasionally the judgments have used the word negligence in applying the concept of
superior responsibility. See, e.g., Akayesu (ICTR-96-4-T), Judgment, 2 September 1998,
para. 217; Blas kic (IT-95-14-T), Judgment, 3 March 2000, para. 332.
150
Bagilishema (ICTR-95-1A-A), Judgment, 3 July 2002, para. 35. Also Blas kic (IT-95-14-
A), Judgment, 29 July 2004, para. 63.
G E N E R A L P R I N C I P L E S O F L AW 319
Similarly, judges at the tribunals have objected to the suggestion that
superior responsibility is a form of strict liability, that is, a crime whose
mental element need not be established by the Prosecutor, but where a
defendant may rebut the presumption of culpable intent and knowledge by
invoking a defence of due diligence. In C
erkez:
The Appeals Chamber claries that the prohibition against attacking
civilians and civilian objects would not be a crime when justied by
military necessity. The prohibition against attacking civilians stems from
a fundamental principle of international humanitarian law, the principle
of distinction, which obliges warring parties to distinguish at all times
between the civilian population and combatants, between civilian objects
and military objectives and accordingly to direct military operations only
against military objectives.
287
The Appeals Chamber referred to the principle of distinction which is
enunciated in article 48 of Additional Protocol I, noting that the International
Court of Justice, in the Advisory Opinion on Nuclear Weapons, described the
284
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 328. Also: Rajic (IT-95-
12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and
Evidence, 13 September 1996, paras. 5457. See the discussion of these cases, and of the
defence of military necessity generally, in Knut Dormann, Elements of War Crimes Under
the Rome Statute of the International Criminal Court, Sources and Commentary, Cam-
bridge: Cambridge University Press, 2002, p. 149.
285
Galic (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 44.
286
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 109.
287
Kordic et al. (IT-95-14/2-A), Judgment, 17 December 2004, para. 54.
346 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
principle of distinction, along with the principle of protection of the civilian
population, as the cardinal principles contained in the texts constituting the
fabric of humanitarian law and stated that States must never make civilians
the object of attack.
288
The Appeals Chamber cited the International Court of
Justice: These fundamental rules are to be observed by all States whether or
not they have ratied the conventions that contain them, because they con-
stitute intransgressible principles of international customary law.
289
An ICTY
Trial Chamber subsequently declared that the Appeals Chamber had over-
turned the Blas kic Trial Chamber with respect to military necessity.
290
Military necessity has also been referred to by an ICTY Trial Chamber as a
possible defence to charges of crimes against humanity. It is well established
that persecutions may encompass property crimes. The Trial Chamber
accepted that attacks on civilian property could be justiable under certain
circumstances, within the context of crimes against humanity, supporting its
opinion with reference to the recognition of military necessity as a defence
to the war crime of destruction of civilian property.
291
Similarly, it noted that
forcible transfer or displacement of a civilian population, which is recognised
as a crime against humanity in the case law of the ICTY, could be justied on
grounds of overriding, i.e. imperative, military reasons.
292
288
Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General
Assembly for an Advisory Opinion), [1996] ICJ Reports 226, para. 78. The International
Court of Justice further asserted that these fundamental rules are to be observed by all
States whether or not they have ratied the conventions that contain them, because they
constitute intransgressible principles of international customary law.
289
Ibid.
290
Strugar (IT-01-42), Judgment, 31 January 2005, para. 278.
291
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 593; also para. 615. Discussed
above at pp. 220222.
292
Ibid., para. 598.
G E N E R A L P R I N C I P L E S O F L AW 347
10
Investigation and pre-trial procedure
The statutes have almost nothing to say about the procedure of the tribunals.
The matter is left to the judges, who are invited to develop Rules of Procedure
and Evidence for the conduct of the pre-trial phase of the proceedings, trials
and appeals, the admission of evidence, the protection of victims and wit-
nesses and other appropriate matters.
1
Articles 18, 19 and 20 of the ICTY
Statute, and corresponding provisions in the Statute of the ICTR, provide
slightly more detail about the procedural approach. The SCSL Statute does
not contain even these modest procedural provisions. Instead, the SCSL Sta-
tute imposes the Rules of Procedure and Evidence of the ICTR, subject to
subsequent amendment, with the consequence that a largely similar procedure
approach is imposed.
2
There are stories of a legendary meeting of ICTY judges, early in 1994 just
following their election, at which various views of an appropriate procedural
and evidentiary model were debated. Each of the judges came from a national
system and had little and often no experience with any international models
or other national models. It was a confrontation driven more by ignorance
of other systems than by any principled devotion to a particular approach.
Professor James Crawford has spoken of the tendency of each duly socialized
lawyer to prefer his own criminal justice systems values and institutions.
3
The lawyers working at the Tribunal also left their mark. As Louise Arbour has
described it:
You know, when you work within an institution, you give it a culture. The
International Criminal Tribunal for the former Yugoslavia was originally
staVed by twenty-ve US attorneys who donated their time for a couple
of years. Many European countries were outraged by the large number of
Americans and felt that the United States had basically hijacked the
institution culturally. And it had, to a large extent. It was a common-law
1
ICTY Statute, art. 15; ICTR Statute, art. 14.
2
SCSL Statute, art. 14.
3
James Crawford, The ILC Adopts a Statute for an International Criminal Court, (1995)
89 American Journal of International Law 404.
348
jurisdiction, and the way of doing business was very North American
because the Americans were there from day one.
4
Initial tensions soon gave way to a degree of respect and, eventually, a
tolerant and generous vision of comparative criminal law. Experts continue to
quarrel about just how hybrid the system really is.
5
But it is beyond question
that the tribunals operate under a procedural regime that draws from the best
of the worlds legal systems, and that is also, given the uniqueness of interna-
tional war crimes prosecution, somewhat sui generis. There is no shortage of
examples of this hybridisation. Nevertheless, it is not free from diYculty and
discord. Even when the tribunals were in a relatively mature phase, in 2004,
there were disputes about the incompatibilities of blending rules drawn from
diVerent legal systems. For example, when Slobodan Milosevic insisted on
defending himself without counsel, a right seemingly guaranteed in an abso-
lute fashion by article 21(4)(d) of the ICTY Statute, it was contended that this
was a right subject to exceptions, with the exception being derived from
European practice. But European criminal procedure is not fundamentally
adversarial, so it does not delegate to the defendant the control over the
strategy and tactics of the case. In continental Europe, judges, and not the
defendant, are masters of the issues that will be raised in the case. As a result,
imposed counsel is not particularly objectionable. The same cannot be said of
common law trials, however, where there is nothing to stop a stubborn and
obstinate defendant who refuses to argue a specic defence, call a particular
witness, or testify in his or her own defence. The merger of rules from
common law and continental systems is sometimes questionable because the
raison detre of the norms is fundamentally diVerent.
As a general rule, nevertheless, the experience of combining approaches
from diVerent legal systems, principally those of the common law and con-
tinental Europe (variously called civil law and Romano-Germanic law)
has been fundamentally successful. The phenomenon has been occasionally
discussed in judgments. In Erdemovic , Judge Cassese of the ICTY Appeals
Chamber wrote:
[I]nternational criminal procedure does not originate from a uniform
body of law. It substantially results from an amalgamation of two diVerent
legal systems, that obtaining in common-law countries and the system
prevailing in countries of civil-law (although for historical reasons, there
currently exists at the international level a clear imbalance in favour of the
common-law approach). It is therefore only natural that international
4
Louise Arbour, Crimes against Women under International Law, (2003) 21 Berkeley
Journal of International Law 196, at p. 209.
5
See, e.g., Maximo Langer, The Rise of Managerial Judging in International Criminal
Law, UCLA School of Law Research Paper No. 0419, 18 October 2004.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 349
criminal proceedings do not uphold the philosophy behind one of the two
national criminal systems to the exclusion of the other; nor do they result
from the juxtaposition of elements of the two systems. Rather, they
combine and fuse, in a fairly felicitous manner, the adversarial or accusa-
torial system (chiey adopted in common-law countries) with a number
of signicant features of the inquisitorial approach (mostly taken in States
of continental Europe and in other countries of civil-law tradition). This
combination or amalgamation is unique and begets a legal logic that is
qualitatively diVerent from that of each of the two national criminal
systems: the philosophy behind international trials is markedly at variance
with that underpinning each of those national systems. Also the Statute
and Rules of the International Tribunal, in outlining the criminal proceed-
ings before the Trial and Appeals Chambers, do not refer to a specic
national criminal approach, but originally take up the accusatorial (or
adversarial) system and adapt it to international proceedings, while at the
same time upholding some elements of the inquisitorial system.
6
Jurists have become increasingly open-minded, and some have learned not
only to respect the approaches of the other system, but even to prefer it to
their own. Speaking of the parallel process at the International Criminal
Court, one commentator has described how the ght between common law
and civil law has been replaced by an agreement on common principles and
civil behaviour.
7
After all, both systems share the basic fundamental proce-
dural guaranties, such as the presumption of innocence and the right to a fair
trial, as recognised by the International Covenant on Civil and Political Rights
and embodied in ICTR, ICTY and SCSL statutes.
Investigation and indictment
One of the laconic provisions in the ICTY and ICTR statutes is entitled
investigation and preparation of indictment. The Prosecutor is to investigate
either ex-oYcio or on the basis of information obtained from any source,
particularly from Governments, United Nations organs, intergovernmental
and non-governmental organizations. The Prosecutor is then to determine
whether or not there is a suYcient basis to proceed. The Prosecutor is to
assess the information received or obtained and decide whether there are
suYcient grounds to proceed. The statutes authorise the Prosecutor to ques-
tion suspects, victims and witnesses, to collect evidence and to conduct on-
site investigations. Upon a determination that a prima facie case exists, the
6
Erdemovic (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
1997, para. 4.
7
Hans-Jorg Behrens, Investigation, Trial and Appeal in the International Criminal Court
Statute (Parts V, VI, VIII), (1998) 6 European Journal of Crime, Criminal Law and
Criminal Justice 113, at p. 113, fn. 2.
350 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Prosecutor is to prepare an indictment containing a concise statement of the
facts and the crime or crimes withwhich the accused is charged. The indictment
is to be transmitted to a judge of the Trial Chamber. The provisions in the ICTY
and ICTR statutes are completed with much more detailed provisions in the
Rules of Procedure and Evidence. Very similar provisions are followed with
respect to the SCSL, although by virtue of the RPE rather than the Statute itself.
Identication of suspects and accused
The Prosecutor has broad discretion in deciding upon cases that he or she
decides to investigate. Most of this work has been conducted outside the
public view, although because of the highly political nature of the cases before
the three tribunals there has been no shortage of attempts to inuence the
choices made by the Prosecutor. By and large, the Prosecutor does not account
for investigative priorities. Nevertheless, in 2000, the ICTY Prosecutor pub-
licised her internal report counselling against an indictment with respect to
war crimes imputable to NATO forces during the 1999 Kosovo campaign.
8
Criticism of the Prosecutors exercise of discretion is a constant of the
tribunals. Participants in the conict continually complain that they are being
singled out, while their opponents are left untouched. With respect to the
former Yugoslavia, all three of the major ethnic groups have been targets of
investigation, although the bulk of the indictments have concerned Serbs.
Critics of the ICTY Prosecutor have alleged that Serb President Slobodan
Milosevic was given de facto immunity in return for his cooperation in
8
Committee Established to Review the NATO Bombing Campaign Against the Federal
Republic of Yugoslavia, Final Report to the Prosecutor, The Hague, 13 June 2000, PR/
P. I. S./510-e. See: Paolo Benvenuti, The ICTY Prosecutor and the Review of the NATO
Bombing Campaign against the Federal Republic of Yugoslavia, (2001) 12 European
Journal of International Law 503; Michael Bothe, The Protection of the Civilian
Population and the NATO Bombing in Yugoslavia: Comments on a Report to the
Prosecutor of the ICTY, (2001) 12 European Journal of International Law 531; Anthony
J. Colangelo, Manipulating International Criminal Procedure: The Decision of the ICTY
OYce of the Independent Prosecutor not to Investigate NATO Bombing in the Former
Yugoslavia, (2003) 97 Northwestern University Law Review 1393; William J. Fenrick,
Targeting and Proportionality during the NATOBombing Campaign against Yugoslavia,
(2001) 12 European Journal of International Law 489; A. Laursen, NATO, the War Over
Kosovo, and the ICTY Investigation, (2002) 17 American University International Law
Review 765; Michael Mandel, Our Case Against NATO and the Lessons to be Learned
fromit, (2001) 25 FordhamInternational LawJournal 95; N. Ronzitti, Is the Non Liquet of
the Final Report by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia Acceptable?, (2000) 82 International Review of
the Red Cross 1017; K. Voon, Pointing the Finger: Civilian Casualties of NATO Bombing
in the Kosovo Conict, (2001) 16 American University International Law Review 1083;
Robert Cryer, Prosecuting International Crimes, Selectivity and the International Criminal
Law Regime, Cambridge: Cambridge University Press, 2005, at pp. 213220.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 351
reaching the peace agreement at Dayton.
9
In Rwanda, the Prosecutor has
regularly declared that investigations have focused on Tutsi perpetrators of
atrocity as well as the Hutu extremists who were responsible for genocide,
although there have been no public indictments of the former. The SCSL has
appeared to be the most balanced, in that its initial indictees represent more
or less equally the various combatant factions in the civil war. But a balanced
approach, while ostensibly fair and equitable, only angers those who contend
that the conict was a struggle between right and wrong, and that some sort of
value judgment about the participants in the conict should guide the exercise
of prosecutorial discretion. Moreover, there have been complaints that the
Prosecutors have sometimes been inuenced by political considerations,
despite their much-vaunted independence. The best assurance that the process
is relatively fair and equitable is the credibility of the individuals who hold
the oYce, and here all three tribunals have been particularly blessed with
Prosecutors with great credibility and integrity.
Prosecutor Richard Goldstone has admitted that the initial ICTY prosecu-
tion was inuenced by political consideration. According to Goldstone, Dragan
Nikolic was not an appropriate rst person for an indictment by the rst
international war crimes tribunal. However, governments, the United
Nations and international NGOs were impatient for prosecutions to begin,
and as a result we had to get out an indictment quickly.
10
There was also
nancial pressure. The rst President of the Tribunal said he and his
colleagues expected trials at the ICTY to begin in June or July 1994, even
before Goldstones appointment. The United Nations cut the budget of the
Tribunal from $33 million to $22 million after it concluded that trials
would not begin before mid-1995.
11
In fact, they did not start until 1996.
Nikolic was not the only target of opportunity. Some months after his
indictment, another Serb combatant, who was at a relatively low level in the
hierarchy of atrocity, was arrested in Germany.
12
Dusko Tadic quickly became
the star defendant. In contrast with Nikolic, who was not even arrested until
April 2000,
13
Tadic was already safely in custody with cooperative German
9
M. Cherif Bassiouni, Combating Impunity for International Crimes, (2000) 71 Uni-
versity of Colorado Law Review 409, at p. 419.
10
Richard J. Goldstone, Prosecuting Rape as a War Crime, (2002) 34 Case Western Reserve
Journal of International Law 277, at p. 281.
11
Paul Lewis, US Aide Sees Nations Hindering Balkan Tribunal, New York Times, 18
January 1994, p. 10.
12
Anna Tomforde, German Police Hold Serb for War Crimes, Munich Arrest Follows
Investigation by Television Crew, Guardian, 15 February 1994, p. 11.
13
Nikolic eventually pleaded guilty to the crime against humanity of persecution, and was
sentence to twenty-three years in prison. Dragan Nikolic (IT-94-2-S), Sentencing Judg-
ment, 18 December 2003. The sentence was reduced to twenty years by the Appeals
Chamber. Dragan Nikolic (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005.
352 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
authorities. Though insignicant in terms of his role in the overall scheme of
things, his name is now as familiar to international case law as that of
Eichmann or Goering. The ICTR and SCSL were more fortunate, in that high
value indictees presented themselves relatively early in their work.
The provisions applicable to the ICTY and ICTR require that the Prosecu-
tor make an initial determination that there is suYcient evidence (a prima
facie case) to provide reasonable grounds for believing that a suspect has
committed a crime within the jurisdiction of the Tribunal.
14
The SCSL RPE
do not set out the prima facie standard, and require only that the allegations
in the Prosecutions case summary would, if proven, amount to the crime or
crimes as particularised in the indictment.
15
According to Judge R. Sidhwa, of
the ICTY, in an early ICTY case,
reasonable grounds point to such facts and circumstances as would justify
a reasonable or ordinarily prudent man to believe that a suspect has
committed a crime. To constitute reasonable grounds, facts must be such
which are within the possession of the Prosecutor which raise a clear
suspicion of the suspect being guilty of the crime . . . It is suYcient that
the Prosecutor has acted with caution, impartiality and diligence as a
reasonably prudent prosecutor would under the circumstances to ascertain
the truth of his suspicions. It is not necessary that he has double checked
every possible piece of evidence, or investigated the crime personally, or
instituted an enquiry into any special matter . . . The evidence . . . need not
be overly convincing or conclusive; it should be adequate or satisfactory to
warrant the belief that the suspect has committed the crime. The expression
suYcient evidence is thus not synonymous with conclusive evidence or
evidence beyond reasonable doubt.
16
In Momir Nikolic , an ICTY Trial Chamber said: It is important to recall
that under the Statute of the Tribunal and the Rules, the Prosecutor has the
sole power to investigate alleged crimes which fall within the jurisdiction of
the Tribunal and to prepare an indictment. This power extends to the sole
competence to determine the crime or crimes with which an accused is
charged.
17
Judge Wald linked the issue to judicial independence, insisting
that the task of selecting defendants belonged solely to the Prosecutor. To
recognise a parallel power in judges to accept or reject cases on extra-legal
grounds invites challenges to their impartiality as exclusively deners and
interpreters of the law, she wrote.
18
14
ICTY Statute, art. 18(4); ICTY RPE, Rule 49(A); ICTR Statute, art. 17(4); ICTR RPE,
Rule 49(A).
15
SCSL RPE, Rule 47(E).
16
Rajic (IT-95-12), Decision, 29 August 1995.
17
Dragan Nikolic (IT-94-2-S), Sentencing Judgment, 18 December 2003, para. 50.
18
Jelisic (IT-95-10-T), Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 14.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 353
The SCSL Statute species that the Court has jurisdiction only over per-
sons who bear the greatest responsibility for serious violations of interna-
tional humanitarian law.
19
In principle, the Prosecutors determination would
be subject to some judicial review, although it is unlikely that judges would
intervene except in the clearest of cases of abusive exercise of discretion.
20
Otherwise, there is no basis in the statutes for any oversight concerning the
exercise of discretion by the Prosecutor in deciding whom to prosecute.
However, the RPE impose some restrictions upon the exercise of prosecutorial
discretion. In particular, where the Prosecutor seeks transfer of a case that is
already pending before national courts in a State, certain criteria must be
fullled before the judges will issue a deferral order.
21
In the case of suspected
contempt, the RPE authorise chambers to direct the Prosecutor to investigate
the matter with a view to the preparation and submission of an indictment for
contempt.
22
The completion strategy of the tribunals has resulted in additional
encroachment on prosecutorial discretion.
23
An indictment properly before
the Tribunal may be deferred to national courts at the initiative of a Trial
Chamber designated by the President, acting proprio motu.
24
Furthermore,
amended Rule 28(A) authorises the Bureau to undertake a preliminary screen-
ing of all indictments so as to ensure that prima facie they concentrate on one
or more of the most senior leaders suspected of being most responsible for
crimes within the jurisdiction of the Tribunal. If the Bureau determines that
the indictment does not meet this standard, the President is to return the
indictment to the Registrar to communicate this nding to the Prosecutor.
But the judges have no authority under the Statute to interfere in this way
with the Prosecutors personal choice concerning indictments. For this reason,
the ICTR judges declined to adopt the same amendment, a position that is
19
SCSL Statute, art.1(1).
20
Fofana (SCSL-04-14-PT), Decision on the Preliminary Defence Motion on the Lack of
Personal Jurisdiction Filed on Behalf of the Accused Fofana, 3 March 2004. The Court
considered that the term persons who bear the greatest responsibility clearly imposes a
personal jurisdiction requirement. It stated that the Chamber therefore concludes that
the issue of personal jurisdiction is a jurisdictional requirement, and while it does of
course guide the prosecutorial strategy, it does not exclusively articulate prosecutorial
discretion, as the Prosecution has submitted.
21
ICTY RPE, Rule 9; ICTR RPE, Rule 9; SCSL RPE, Rule 9. This is discussed in greater
detail below at pp. 383386.
22
ICTY RPE, Rule 77(C)(i); ICTR RPE, Rule 77(B)(i). See, e.g., Kamuhanda (ICTR-99-
54A-A), Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005. The
SCSL RPE do not authorise Chambers to direct the Prosecutor in this way.
23
On the completion strategy, see above at pp. 4043.
24
ICTY RPE, Rule 11bis.
354 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
supported by the ICTY Prosecutor.
25
The ICTY judges rely apparently on a
paragraph in Security Council Resolution 1534 requiring that in reviewing
and conrming any new indictments the Tribunal is to ensure that any such
indictments concentrate on the most senior leaders suspected of being most
responsible for crimes within the jurisdiction of the relevant Tribunal.
26
An argument that an indictment is invalid because the Prosecutor has not
indicted other persons who are allegedly equally or more culpable is unsus-
tainable. In C
elebic i Trial Chamber said: [T]he Trial Chamber restricts itself to addressing
the specic allegations in the Indictment and therefore will not consider the
other acts of wilfully causing great suVering or serious injury to body or
health, and cruel treatment, for which evidence was led during trial, but which
are not specically alleged in the Indictment.
50
An ICTY Trial Chamber
entered acquittals with respect to grave breaches of the Geneva Conventions
because the Prosecutor had failed to plead adequately the existence of an
international armed conict, which is one of the requisite jurisdictional
elements for a charge based on Article 2 of the Statute.
51
An ICTR Trial
Chamber considered that an indictment alleging that the accused held a large
number of meetings among themselves, or with others was vague and inade-
quate to support a count of conspiracy to commit genocide.
52
Several judgments have insisted that the Prosecutor is required to set out
the relevant material facts, but not the evidence by which such facts will be
proven.
53
The degree of specicity will vary depending on the nature of the
case against the accused. According to the ICTR Appeals Chamber, the
Prosecutions obligation to provide particulars in the indictment is at its
47
Ibid., para. 122.
48
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004,
para. 59. Also, paras. 71, 79, 81, 85, 88, 91, 112, 115.
49
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 691.
50
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 1020, 10411045.
51
Simic et al. (IT-95-9-T), Judgment, 17 October 2003, paras. 104120.
52
Bagambiki et al. (ICTR-97-36-I), Decision on the Defence Motion on Defects in the
Form of the Indictment, 24 September 1998, para. 11 and dispositive; Bagambiki et al.
(ICTR-97-36-I), Decision on the Defence Motion for the Separation of Crimes and
Trials, 30 September 1998.
53
Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, para. 147; Krnojelac (IT-97-25-A),
Judgment, 17 September 2003, para. 131.
360 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
highest when it seeks to prove that the accused killed or harmed a specic
individual.
54
If the indictment alleges that an accused personally carried out
the acts underlying the crime in question, then it must identify the victim, the
place and approximate date of the alleged criminal acts, and the means by
which they were committed with the greatest precision.
55
Many crimes of the type prosecuted by the tribunals involve atrocity on a
mass scale, where it is impractical to insist upon a high degree of specicity.
56
But because the identity of the victims is valuable information for preparation
of the defence case, if the Prosecutor can name them she or he should do so.
57
The amended Milos evic indictment concerning Kosovo, for example, lists
nearly 600 individual victims, indicating their sex, the locality where they
were killed and, in some cases, approximate age.
58
The Milos evic indictment
concerning Bosnia, however, describes the victims more generally, as 5 non-
Serbs, 48 Bosnian Muslim and/or Bosnian Croat men, women and children,
4 Bosnian Muslim civilians near the market place, etc.
59
The Erdemovic
indictment referred to the victims as hundreds of Bosnian Muslim male
civilians.
60
The Prosecutor may not omit material aspects of its main allegations in the
Indictment so as to provide exibility in moulding the case at trial, depending
on how the evidence unfolds.
61
The Appeals Chamber has warned that the
practice of failing to allege known material facts in an indictment is unac-
ceptable and that it is only in exceptional cases that such a failure can be
remedied.
62
Obviously, the Prosecutor may not be in a position to furnish
certain details at the stage of issuance of the indictment. When these emerge
subsequently, perhaps during the trial itself, the ICTY Appeals Chamber has
insisted that in such a situation, doubt must arise as to whether it is fair to the
accused for the trial to proceed.
63
The ICTY Appeals Chamber has stressed
that the Prosecution is expected to know its case before it goes to trial. It is
54
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004,
para. 74.
55
Blas kic (IT-95-14-A), Judgment, 29 July 2004, para. 213.
56
Kvoc ka et al. (IT-98-30-PT), Decision on Defence Preliminary Motions on the Form of
the Indictment, 12 April 1999.
57
Ibid., para. 90.
58
Milos evic et al. (IT-99-37-PT), Second Amended Indictment, 16 October 2001.
59
Milos evic (IT-01-51-I), Indictment, 22 November 2001.
60
Erdemovic (IT-96-22), Indictment, 22 May 1996, para. 12.
61
Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, paras. 301303; Ntakirutimana
et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004, paras.
24125, 469, 470.
62
Ntakirutimana et al. (ICTR-96-10-A and ICTR-96-17-A), Judgment, 13 December 2004,
para. 159.
63
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 92.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 361
not acceptable for the Prosecution to omit the material aspects of its main
allegations in the indictment with the aim of moulding the case against the
accused in the course of the trial depending on how the evidence unfolds.
64
The Appeals Chamber has not excluded the possibility that in some instances,
a defective indictment can be cured if the Prosecution provides the accused
with timely, clear and consistent information detailing the factual basis under-
pinning the charges against him or her. Nevertheless, in light of the factual
and legal complexities normally associated with the crimes within the juris-
diction of this Tribunal, there can only be a limited number of cases that fall
within that category.
65
Nor is it suYcient for the Prosecutor to argue that
lacunae in the indictment are cured by the provision of information to the
defence, for example in the form of witness statements, as part of the pre-trial
disclosure process.
66
The ICTY Appeals Chamber has held that the indictment must also clarify
the basis of liability on which the Prosecutor intends to build his or her case.
67
As a minimum, the Prosecutor must specify not only whether the individual is
charged on the basis of actual perpetration (ICTY Statute, art. 7(1), ICTR
Statute, art. 6(1), SCSL Statute, art. 6(1)) or superior responsibility (ICTY
Statute, art. 7(3), ICTR Statute, art. 6(3), SCSL Statute, art. 6(3)), but in the
case of actual perpetration the indictment must specify the forms of liability,
both explicit (planning, instigation, ordering, commission, aiding and abet-
ting) and implicit (joint criminal enterprise). If commission is alleged, the
indictment must clarify whether this term is to be understood as meaning
physical commission by the accused or participation in a joint criminal
enterprise, or both. The ICTY Appeals Chamber has said that it is
preferable for an indictment alleging the accuseds responsibility as a
participant in a joint criminal enterprise also to refer to the particular
form (basic or extended) of joint criminal enterprise envisaged. However,
this does not, in principle, prevent the Prosecution from pleading else-
where than in the indictment for instance in a pre-trial brief the legal
theory which it believes best demonstrates that the crime or crimes alleged
are imputable to the accused in law in the light of the facts alleged.
68
Recent appellate decisions have put this more unequivocally: [T]he indict-
ment should clearly indicate which form of joint criminal enterprise is being
alleged.
69
The Appeals Chamber will not, however, overturn a conviction
64
Ibid.
65
Ibid., para. 114.
66
Brdanin et al. (IT-99-36-PT), Decision on Form of Further Amended Indictment and
Prosecution Application to Amend, 26 June 2001, para. 62.
67
Krnojelac (IT-97-25-A), Judgment, 17 September 2003, para. 138.
68
Ibid., para. 138.
69
Kvoc ka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 28.
362 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
based on a mode of liability that was not set out in the indictment, to the
extent that the trial record shows that the accused was given timely, clear and
consistent information, detailing the factual basis of the charges, thereby com-
pensating for the indictments failure to give proper notice of the Prosecutors
intent to rely on joint criminal enterprise liability.
70
Issuance of the indictment
The indictment is submitted by the Prosecutor to the Registrar, who organises
the subsequent proceedings. At the ICTY, since the requirement that indict-
ments concern only senior leaders was imposed, in 2004, the Registrar is to
consult with the President, who then refers the indictment to the Bureau in
order to determine whether the indictment meets this condition. If the Bureau
takes the view that the indictment meets this standard, the President desig-
nates a judge for the conrmation procedure. In the alternative, the President
returns the indictment to the Registrar to communicate this nding to the
Prosecutor.
71
At the ICTY and ICTR, the Reviewing (or Conrming
72
) Judge is to
examine each of the counts in the indictment in order to determine if a prima
facie case exists against the suspect.
73
At the SCSL, the judge is to approve the
indictment if satised that the indictment charges the suspect with a crime or
crimes within the jurisdiction of the Special Court, and that the allegations in
the Prosecutions case summary would, if proven, amount to the crime or
crimes as particularised in the indictment.
74
Although described diVerently,
these tests are probably relatively identical in practice. The procedure before
the Reviewing Judge takes place ex parte, that is, the defence is not entitled to
be present or to make representations.
75
The Judge may conrm or dismiss the counts in the indictment.
76
For
example, in an ICTR case, the Reviewing Judge authorised counts with respect
to the crime against humanity of murder, but refused to endorse the indict-
ment with respect to charges of genocide.
77
Dismissal of a count in an
70
Ibid., para. 54.
71
ICTY RPE, Rule 28(A) (amended 6 April 2004).
72
ICTR RPE, Rule 61(B).
73
ICTY RPE, Rule 47(E); ICTR RPE, Rule 47(E).
74
SCSL RPE, Rule 47(E).
75
Kordic et al. (IT-95-14/2-PT), Order Concerning Documents to be Transmitted by the
Defence to the Judge Reviewing the Proposed Amended Indictment, 26 August 1998;
Meakic , Sikirica (IT-95-4-PT, IT-95-8-PT), Order on the Prosecutors Requests for the
Assignment of a Conrming Judge, 26 August 1998; Kolundz ija (IT-95-8-I and IT-98-
30-PT), Decision Rejecting Prosecutors Request for Leave to Amend Indictments, 6 July
1999.
76
ICTY RPE, Rule 47(F); ICTR RPE, Rule 47(F); SCSL RPE, Rule 47(F).
77
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
Indictment, 18 March 1999.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 363
indictment does not preclude the Prosecutor from resubmitting an amended
indictment including the same count.
78
The ruling by the Reviewing Judge not
to authorise the indictment, or specic counts, is not subject to appeal.
79
The
ICTYand ICTR RPE also authorise the Reviewing Judge to ask the Prosecutor
to provide additional materials in support of a count, and to adjourn the
review procedure to allow the Prosecutor to modify the indictment.
80
When issuing the indictment, the Reviewing Judge may also at the request
of the Prosecutor, [make] such orders and warrants for the arrest, detention,
surrender or transfer of persons, and any other orders as may be required.
81
Some rather creative use has been made of this provision. When Slobodan
Milosevic was rst indicted, in May 1999, the Reviewing Judge issued an order
freezing his assets.
82
He directed all United Nations Member States to make
inquiries to discover whether the accused had assets located in their territory
and, if so, to adopt provisional measures to freeze such assets. Judge Hunt
invoked article 19(2) of the ICTY Statute as authority for the measure, and
explained:
In the situation where the Federal Republic of Yugoslavia has consistently,
in breach of its legal obligations, ignored the Tribunals orders to arrest
persons who have been indicted to stand trial before the Tribunal, and
who are living within its territory, and where the Tribunal has no police
force of its own to execute its warrants, I accept that it is of the utmost
importance that every permissible step be taken which will assist in
eVecting the arrest of those who shelter in the Federal Republic of Yugo-
slavia or who otherwise seek to evade arrest. I agree that the orders sought
should be made in this case.
83
But when the SCSL Prosecutor sought a similar order freezing the assets of
accused Sam Hinga Norman, Judge Bankole Thompson dismissed the appli-
cation. Judge Thompson referred to Judge Hunts order in Milos evic , but did
not follow the same reasoning:
78
ICTY RPE, Rule 47(I); SCSL RPE, Rule 47(I); SCSL RPE, Rule 47(I). The ICTY and
ICTR provisions specify that this must be supported by additional evidence.
79
Bagosora et al. (ICTR-98-37-A), Decision on the Admissibility of the Prosecutors
Appeal from the Decision of a Conrming Judge Dismissing an Indictment against
Theoneste Bagosora and Twenty-eight Others, 8 June 1998, paras. 3233.
80
ICTY RPE, Rule 47(F); ICTR RPE, Rule 47(F).
81
ICTY Statute, art. 19(2); ICTR Statute, art. 18(2); SCSL RPE, Rule 47(H).
82
Pursuant to ICTY RPE and ICTR RPE Rule 61(D), a Trial Chamber, when issuing an
international arrest warrant, may order a State or States to adopt provisional measures
to freeze the assets of the accused, without prejudice to the rights of third parties.
83
Milos evic et al. (IT-99-37-I), Decision on Review of Indictment and Application for
Consequential Orders, 24 May 1999, para. 29. See: Michael P. Scharf, The Tools for
Enforcing International Criminal Justice in the New Millennium: Lessons from the
Yugoslavia Tribunal, (2000) 49 DePaul Law Review 925.
364 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
What, then, should be the applicable test? In my considered view, the
proper test to be applied in determining whether or not to grant an
application by the police or the Prosecution to freeze assets in the bank
account of a person charged with crime pending trial is whether there is
clear and convincing evidence that the targeted assets have a nexus with
criminal conduct or were otherwise illegally acquired. What is clear and
convincing evidence depends on the particular facts and circumstances of
each case. The targeted property must be specically identiable as a
product of criminality or illegality. Neither probable cause nor mere
suspicion or speculation will suYce.
84
Judge Thompson did not insist that the nexus with criminality or illega-
lity involve a crime within the jurisdiction of the Court, although this seems
self-evident.
In principle, the indictment is a public document,
85
and can be readily
consulted on the websites of the three tribunals. In exceptional circumstances,
a judge or a Trial Chamber may order the non-disclosure to the public of any
documents or information until further order, and even order that the
indictment itself remain condential, where this is in the interests of justice,
or to give eVect to a provision of the Rules or to protect condential
information.
86
The judge who conrms the indictment may also order that
there be no public disclosure of the indictment until it is served on the
accused.
87
These are the famous and controversial sealed indictments. In
December 1998, Russian Foreign Minister Igor Ivanov expressed serious
preoccupations about the use of secret indictments, complaining that they
discouraged voluntary cooperation with the ICTY and at the same time
denied indicted persons the right to surrender themselves. One person taken
into custody on this basis, Slavko Dokmanovic, argued that his arrest was
illegal because of the secret nature of the indictment. Three accused had been
indicted publicly for the Vukovar hospital massacre, but the name of Dokma-
novic had been added in a condential amendment. He had been lured from
his residence in Serbia to neighbouring Eastern Slavonia, where he was taken
by surprise and arrested by United Nations forces. An ICTY Trial Chamber
rejected the argument, noting that the Statute or the Rules did not require
disclosure of the indictment, and that Yugoslavias history of non-compliance
with warrants issued by the Tribunal justied such measures.
88
84
Norman et al. (SCSL-04-14-PT), Norman Decision on Inter Partes Motion by Prose-
cution to Freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank
(SL) Limited or at any other Bank in Sierra Leone, 19 April 2004, para. 13.
85
ICTY RPE, Rule 52; ICTR RPE, Rule 52; SCSL RPE, Rule 52(D).
86
ICTY RPE, Rule 53; ICTR RPE, Rule 53; SCSL RPE, Rule 53.
87
ICTY RPE, Rule 53(B); ICTR RPE, Rule 53(B); SCSL RPE, Rule 53(B).
88
Dokmanovic (IT-95-13a-T), 22 October 1997.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 365
A policy of sealing indictments until arrest of the suspect became relatively
systematic in the mid-1990s at the ICTY.
89
Prosecutor Louise Arbour initiated
the practice in 1996 when confronted with the failure of States in the region to
assist the Tribunal in apprehending suspects. She said that with sealed indict-
ments the ICTY was able to marginally improve its attempts at arrests.
90
In
2000, Prosecutor Carla Del Ponte indictated that sealed indictments were
being issued systematically.
91
However, the practice was abandoned in 2002,
when it became apparent that publicising indictments seemed to prompt
accused persons to surrender.
92
Since then, the Prosecutor will keep indict-
ments sealed only when she is not satised that the States responsible for the
apprehension of the accused are not in a position to promptly arrest and
surrender the accused to the Tribunal.
93
Liberian President Charles Taylor was
the subject of a sealed indictment, whose existence was only made public by
the Prosecutor himself, when he publicly called upon Ghana to arrest the
accused. In fact, he may have lacked the authority to make the indictment
public and, arguably, violated the condentiality order of the Reviewing
Judge.
Joinder of crimes
Two or more crimes may be joined in one indictment if the series of acts
committed together form the same transaction, and if the crimes in question
were committed by the same accused.
94
Rule 2 denes transaction as [a]
number of acts or omissions whether occurring as one event or a number of
events, at the same or diVerent locations and being part of a common scheme,
strategy or plan.
95
In an extensive review of both international and national
practice in this area, Judge Shahabuddeen of the ICTY Appeals Chamber
89
Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for
the Former Yugoslavia, (1999) 93 American Journal of International Law 57, at p. 74.
90
Louise Arbour, The Status of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda: Goals and Results, (1999) 3 Hofstra Law and Policy Symposium
37, at p. 39. But more recently, she has written that the sealed indictments policy was
critical to the operations of the ICTY at the time: Louise Arbour, The Crucial Years,
(2004) 2 Journal of International Criminal Justice 396, at p. 397.
91
Comments on the Report of the Expert Group to Conduct a Review of the EVective
Operation and Functioning of the International Tribunal for the Former Yugoslavia and
the International Criminal Tribunal for Rwanda, UN Doc. A/54/850, p. 15.
92
Seventh Annual Report of the ICTR, UN Doc. A/57/163-S/2002/733, annex, para. 216.
Since the policy change, indictments are often still kept under seal for a period of a few
weeks following their issuance: e.g., Prlic (IT-04-74-I), Indictment, 4 March 2004;
Hadzic (IT-04-75-I), Indictment, 4 June 2004.
93
Tenth Annual Report of the ICTY, UN Doc. A/58/297-S/2003/829, annex, para. 233.
94
ICTY RPE, Rule 49; ICTR RPE, Rule 49; SCSL RPE, Rule 49.
95
See also: Ntabakuze et al. (ICTR-97-34-I), Decision on the Defence Motion Requesting
an Order for Separate Trials, 30 September 1998.
366 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
noted that Rule 49 was based on the same transaction test used in the federal
justice system of the United States of America. He said that [a]dditional
charges must bear a reasonable relationship to the matrix of facts involved in
the original charge, recognising both the convenience to each side of trying
several charges together and the injustice which might enure to the accused if
he was required to answer unrelated charges at the same time. For Judge
Shahabuddeen, the question is whether all the counts, old and new, represent
interrelated parts of a particular criminal episode, but it is not necessary for
all the facts to be identical and that it was enough if the new charges could not
be alleged but for the facts which g[a]ve rise to the old.
96
In Milos evic , an ICTY Trial Chamber denied the Prosecutors motion to
unite three distinct indictments, each referring to separate conicts in Kosovo,
Croatia and Bosnia and Herzegovina. It said that the alleged nexus between
the diVerent conicts was too nebulous to point to the existence of a
common scheme, strategy or plan required for the same transaction .
97
The ruling was overturned by the Appeals Chamber, which said that [a] joint
criminal enterprise to remove forcibly the majority of non-Serb population
from areas which the Serb authorities wished to establish or to maintain as
Serbian controlled areas by the commission of the crimes charged remains
the same transaction notwithstanding the fact that it is put into eVect from
time to time and over a long period of time as required.
98
The Appeals
Chamber noted that if evidence were to be admitted in the Kosovo trial
which would be prejudicial to the accused in the Croatia and Bosnia trial, the
members of the Trial Chamber as professional judges would be able to exclude
that prejudicial evidence from their minds when they came to determine the
issues in the Croatia and Bosnia trial.
99
To a very large extent, however, the
Milos evic prosecution has proceeded in phases, almost as if there were separate
indictments for the diVerent conicts.
The Statute and the Rules are silent on what is called cumulative charging.
Cumulative charging consists of indictments for several diVerent crimes
within the subject-matter jurisdiction of the tribunals, but with respect to
the same criminal act. For example, killing may be prosecuted as genocide,
crimes against humanity and war crimes, and the Prosecutor may opt to
include all three of these crimes in the indictment. According to the Appeals
Chamber, [c]umulative charging is to be allowed in light of the fact that,
prior to the presentation of all of the evidence, it is not possible to determine
96
Kovac evic (IT-97-24-AR73), Separate Opinion of Judge Shahabuddeen, 2 July 1998.
97
Milos evic (IT-99-37-PT, IT-01-50-PT and IT-01-51-PT), Decision on Prosecutors
Motion for Joinder, 13 December 2001.
98
Milos evic (IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73), Reasons for Decision
on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002.
99
Ibid.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 367
to a certainty which of the charges brought against an accused will be proven.
The Trial Chamber is better poised, after the parties presentation of the
evidence, to evaluate which of the charges may be retained, based upon the
suYciency of the evidence.
100
This is not considered to violate the rule against
double jeopardy.
101
Of course, the matter is reviewed at the conviction stage,
when special rules apply to multiple convictions based on the same facts.
102
Cumulative charging has certainly lengthened the trials considerably. Most
of the acts that have been the basis of trials at the ICTY and ICTR can be
described as both crimes against humanity and war crimes. Enormous
amounts of time and resources have been devoted to debates about the ne
points of liability for war crimes, when a case of crimes against humanity was
already made out. Similarly, often the Prosecutor has also charged alternative
modes of liability, where the accused was charged as both a principal perpe-
trator or accomplice and as a superior, in accordance with the doctrine of
superior or command responsibility. In all but one case,
103
a conviction was
obtained as a principal perpetrator, obviating the need for the charge of
superior responsibility. But the damage to the Tribunal, in terms of the
complexity of the legal debate and the corresponding lengthening of the
proceedings, had already been done.
Joinder of accused
Persons accused of the same or diVerent crimes committed in the course of
the same transaction may be jointly charged and tried.
104
If the Prosecutor
chooses to proceed by separate indictment, he or she may later seek to have
the cases joined for purposes of the trial.
105
In determining whether an
indictment should be joined, the tribunals consider whether the acts of the
accused are connected to material elements of a criminal act. These criminal
acts must be capable of specic determination in time and in space, and they
must illustrate the existence of a common scheme, strategy or plan. They also
assess whether joinder would be in the interests of justice.
106
In this respect,
100
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, para. 400. Also: Ntakirutimana
et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, paras. 863864;
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1089;
Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 117.
101
Krnojelac (IT-97-25-PT), Decision on the Defence Preliminary Motion on the Form of
the Indictment, 24 February 1999, paras. 810.
102
See below at pp. 434438.
103
Strugar (IT-01-42), Judgment, 31 January 2005.
104
ICTY RPE, Rule 48; ICTR RPE, Rule 48; SCSL RPE, Rule 48(A).
105
ICTR RPE, Rule 48bis; SCSL RPE, Rule 48(B). See Kanyabashi (ICTR-96-15-A), Dis-
senting Opinion of Judge Shahabuddeen, 3 June 1999, p. 16.
106
Bagosora et al. (ICTR-96-7), Decision on the Prosecutors Motion for Joinder, 29 June
2000, paras. 145156.
368 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
judges consider implications with respect to resources, costs and time,
107
the
requirement of transparent justice that there be consistency and fairness, the
public interest in avoiding discrepancies and inconsistencies that result inevi-
tably from separate trials,
108
and whether joinder would allow for a more
consistent and detailed presentation of evidence, and for better protection of
the victims and witnesses physical and mental safety by reducing the number
of times they must testify.
109
These concerns must be balanced against the
right of each individual accused to trial without delay.
110
The rst great war crimes trial, the Nuremberg trial of the major war
criminals held by the International Military Tribunal, involved twenty-two
defendants but only one indictment. The specic oVences alleged often had
only the most tenuous connections with each other, but the cases were united
in that they involved the leaders of the Nazi regime. Subsequent post-Second
World War trials were grouped thematically, and again grouped large numbers
of defendants in each case. Initially, the ICTYdid not seem to have a strategic
approach to the type of defendant it would prosecute, and its rst important
trial, of Dusko Tadic, concerned an insignicant thug. Later, there were more
serious attempts to link defendants in multiple prosecutions, especially at
the ICTR. The RPE were amended to allow joinder in this way, all with a view
to expediting the proceedings,
111
although it is not at all obvious that this
was the result. The SCSL took a thematic approach from the very beginning,
planning two main trials, each focusing on one of the combatant groups.
Although the accused were initially indicted separately, the indictments were
later joined. The motions were granted in part, the Court ordering that there
be three separate trials, each one involving three accused persons.
112
In one of the applications for joinder of indictments, the SCSL Trial
Chamber noted that the proposal for joint trial was based upon the principle
of collective criminal responsibility that it said was implicit in the terms of
107
Kanyabashi (ICTR-96-15-A), Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction of the Trial Chamber, 3 June 1999, para. 31.
108
Delalic et al. (IT-96-21-T), Decision on the Motion by the Defendant Delalic Requesting
Procedures for Final Determination of the Charges Against Him, 1 July 1998, para. 35.
109
Kayishema (ICTR-95-1-T), Decision on the Joinder of the Accused and Setting the Date
for Trial, 6 November 1996, p. 3.
110
Bagosora et al. (ICTR-96-7), Decision on the Prosecutors Motion for Joinder, 29 June
2000, paras. 145156; Norman et al. (SCSL-03-08-PT, SCSL-03-011-PT, SCSL-03-12-
PT), Decision and Order on Prosecution Motions for Joinder, 27 January 2004, para.
18.
111
Rule 48bis was added to the ICTR RPE at the ninth plenary, held on 30 November 2000.
See: Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 73.
112
Sesay et al. (SCSL-03-05-PT, SCSL-03-06-PT, SCSL-03-07-PT, SCSL-03-09-PT, SCSL-
03-10-PT, SCSL-03-13-PT), Decision and Order on Prosecution Motions for Joinder,
27 January 2004; Norman et al. (SCSL-03-08-PT, SCSL-03-011-PT, SCSL-03-12-PT),
Decision and Order on Prosecution Motions for Joinder, 27 January 2004.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 369
article 6(1) of the Statute.
113
It said that regardless of whether the accused
were indicted together or not, where factual allegations in the indictment
support the Prosecutors theory of a common transaction and where there is
no material prejudice to the accused, joinder may be granted.
114
After obtaining a joint indictment, circumstances may lead the Prosecutor
to change his or her mind and request severance. According to common Rule
82(B), a Trial Chamber may order that persons accused jointly be tried
separately if it considers it necessary in order to avoid a conict of interests
that might cause serious prejudice to an accused, or to protect the interests of
justice.
115
When Rwamakuba was jointly charged before the ICTR, his initial
challenge seeking severance was dismissed.
116
Subsequently, the Prosecutor
re-evaluated its position on severance in view of the recent results of single-
accused trials, which have been completed in a more timely and eYcient
manner.
117
The defence contested the motion. The Trial Chamber, after
concluding that the defence had failed to show that any improper motive
was behind the request for severance, accorded considerable deference to the
Prosecutors assessment.
In accordance with Rule 82, the Trial Chamber may order that persons
charged jointly should be tried separately if it considers it necessary in order
to avoid a conict of interests that might cause serious prejudice to an
accused, or to protect the interests of justice.
118
There is probably a presump-
tion that joining trials will introduce economies of scale and expedite pro-
ceedings, and that this is therefore in the interests of justice.
119
Moreover,
[n]othing could be more destructive of the pursuit of justice than to have
inconsistent results in separate trials based upon the same facts. The only sure
way of achieving such consistency is to have both accused tried before the
113
Norman et al. (SCSL-03-08-PT, SCSL-03-011-PT, SCSL-03-12-PT), Decision and Order
on Prosecution Motions for Joinder, 27 January 2004, para. 14.
114
Ibid., para. 17.
115
ICTY RPE, Rule 82(B); ICTR RPE, Rule 82(B); SCSL RPE, Rule 82(B).
116
Rwamakuba (ICTR-98-44-T), Decision on Andre Rwamakubas Motion for Severance,
12 December 2000.
117
Karemera et al. (ICTR-98-44-PT), Decision on Severance of Andre Rwamakuba and for
Leave to File Amended Indictment, Articles 6, 11, 12 quarter 18 and 20 of the Statute;
RPE, Rules 47, 50 and 82(B), 14 February 2005, para. 6.
118
See: Richard May and Marieke Wierda, Trends in International Criminal Evidence:
Nuremberg, Tokyo, The Hague, and Arusha, (1999) 37 Columbia Journal of Transna-
tional Law 725, at p. 741; Murphy, Progress and Jurisprudence of the ICTY, at pp.
7980.
119
Kunarac et al. (IT-96-23-PT), Decision on Joinder of Trials, 9 February 2000; Kvoc ka
et al. (IT-98-30-T and IT-95-4-PT), Decision on Prosecution Motion to Join Trials, 14
April 2000; Kordic et al. (IT-95-14/2-PT), Decision on Accused Mario C
erkezs Applica-
tion for Separate Trial, 7 December 1998, paras. 1011.
370 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
same Trial Chamber and on the same evidence.
120
In cases dealing with
crimes committed in the course of the same transaction in the Omarska
camp, between 31 May 1992 and the end of that year, an ICTY Trial Chamber
said a joint trial would accelerate the trial of one of the accused without
prejudice to his or to the other accuseds rights of defence, avoid duplication
of evidence and minimise hardship caused to witnesses. This, said the Trial
Chamber, would best serve the interests of justice.
121
Trial Chambers have
held that although joint defendants may invoke separate and even contra-
dictory defences, professional judges are able to consider these issues without
prejudice to individual defendants.
122
Amendment of the indictment
The Prosecutor may amend the indictment at any stage of the proceedings.
National justice systems vary considerably in their approach to amendment of
indictments, but all of them permit the practice.
123
At the international
tribunals, permission or leave to do so is obtained from a judge until the case
is assigned to a Trial Chamber, and subsequently by the assigned Trial Cham-
ber or one of its members.
124
Unlike the indictment procedure, which takes
place ex parte, if the accused has already appeared before the Tribunal, the
amendment can only be authorised following an inter partes hearing.
125
If new
charges are added, and the accused has already entered a plea, a further
appearance is necessary with respect to the new charges. Often amendments
deal with essentially technical issues, such as the removal of a co-accused who
has died,
126
or the joinder of accused persons.
127
Amendments have also been
120
Brdanin et al. (IT-99-36-PT), Decision on Motions by Momir Talic for a Separate Trial
and for Leave to File a Reply, 9 March 2000, para. 31.
121
Kvoc ka et al. (IT-98-30-T and IT-95-4-PT), Decisions on Prosecution Motion to Join
Trials, 14 April 2000.
122
Simic et al. (IT-95-9-PT), Decision on Defence to Sever Defendants and Counts, 15
March 1999. Also: Barayagwiza (ICTR-97-19-I), Decision on the Request of the Defence
for Severance and Separate Trial, 26 September 2000; Brdanin et al. (IT-99-36-PT),
Decision on Motions by Momir Talic for a Separate Trial and for Leave to File a Reply, 9
March 2000. An appeal of this decision was dismissed: Brdanin et al. (IT-99-36-AR72.2),
Decision on Request to Appeal, 16 May 2000.
123
For a summary attempt to compare practice in common-law and civil-law systems, see:
Kovac evic (IT-97-24-I), Decision on Prosecutors Request to File an Amended Indict-
ment, 5 March 1998, paras. 1011.
124
ICTY RPE, Rule 50; ICTR RPE, Rule 50; SCSL RPE, Rule 50.
125
Brdanin et al. (IT-99-36-PT), Decision on Motion to Dismiss Indictment, 5 October
1999, paras. 2122.
126
Mrksic et al. (IT-95-13/1-PT), Order Terminating Proceedings Against Slavko Dokano-
vic, 15 July 1998.
127
Kvoc ka et al.; Kolundzija (IT-98-30-PT and IT-95-8-PT), Decision on Prosecutors
Motion for Joinder, 19 October 1999.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 371
used to withdraw counts in an indictment.
128
Amendments to remove counts
are often sought, and granted, in the context of guilty plea agreements.
129
Amendments have been allowed even during trials. For example, the
Akayesu indictment was amended in the middle of the Prosecutors case so
as to include counts relating to sexual violence. The Prosecutor said that the
amendment had been prompted by testimony of a witness at trial, which had
motivated a renewal of the investigation. According to the Prosecutor, evi-
dence previously available had not been suYcient to implicate the accused.
She said that the lack of evidence might be explained by the shame that
accompanies acts of sexual violence as well as insensitivity in the investigation
of sexual violence. The defence retorted that the amendments were really a
response to public pressure from feminist non-governmental organisations.
The ICTR Trial Chamber was unimpressed with the argument, and even noted
the interest shown in this issue by non-governmental organizations, which it
considers as indicative of public concern over the historical exclusion of rape
and other forms of sexual violence from the investigation and prosecution of
war crimes. The investigation and presentation of evidence relating to sexual
violence is in the interest of justice.
130
The ICTR Appeals Chamber dismissed
Akayesus challenge to the conviction with respect to the counts in the
amended indictment, although it confessed that had it been in the Trial
Chambers shoes it would have probably acted otherwise.
131
In deciding whether or not to allow amendment, the principal concern of
Trial Chambers should be the danger of prejudice to the accused.
132
Con-
siderations include the right to be tried without undue delay, as well as the
right to be informed in detail of the nature and cause of the charges
brought.
133
Factors that a Trial Chamber will weigh include the ameliorating
eVect of the changes on the clarity and precision of the case to be met; the
diligence of the Prosecution in making the amendment in a timely manner
128
Jelisic et al. (IT-95-10-I), Amended Indictment, 12 May 1998.
129
ICTY RPE, Rule 62ter(i); ICTR RPE, Rule 62bis(i). See, e.g., Momir Nikolic (IT-02-60/1-
T), Decision on Motion for Dismiss Charges Against Momir Nikolic, 12 May 2003;
Serushago (ICTR-98-39-T), Decision Relating to a Plea of Guilty, 14 December 1998. On
guilty plea agreements, see below at pp. 423428.
130
Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 145.
131
Akayesu (ICTR-96-4-A), Judgment, 1 June 2001, para. 114.
132
Zigiranyirazo (ICTR-2001-73-I), Decision on Prosecutors Request for Leave to Amend
the Indictment and on Defence Urgent Motion for an Order to Disclose Supporting
Material in Respect of the Prosecutors Motion for Leave to Amend the Indictment, 15
October 2003, para. 19; Simba (ICTR-2001-76-I), Decision on Motion to Amend
Indictment, 26 January 2004, para. 7; Brdanin et al. (IT-99-36), Decision on Filing
Replies, 7 June 2001, para. 3.
133
Muhimana (ICTR-1995-1B-I), Decision on Motion for Leave to Amend Indictment, 21
January 2004, para. 10; Simba (ICTR-2001-76-I), Decision on Motion to Amend
Indictment, 26 January 2004, para. 8.
372 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
that avoids creating an unfair tactical advantage; and the likely delay or other
possible prejudice to the Defence, if any, caused by the amendment.
134
In
authorising an amendment that added charges based on new evidence, Judge
Vorah noted that the amendment avoided the ling of a second indictment,
that the need for the proper administration of justice and the requirement of
a fair and expeditious trial was met and that there was no prejudice to the
rights of the accused.
135
In Kovac evic , an ICTY Trial Chamber refused an amendment that added
several new charges and a large number of new allegations. Noting that the
indictment was led nearly a year after conrmation, and seven months after
arrest of the accused, the Trial Chamber said that this amounted to an entire
new case and should have been made much more promptly. Invoking the right
of the accused to be informed promptly of the charges against him, the Trial
Chamber said:
The amendment sought is not the result of the subsequent acquisition of
materials unavailable at the time of conrmation of the Indictment, nor
are all the added counts covered by the factual allegations in the original
Indictment. The reasons given by the Prosecution do not justify the delay
in bringing this request. The fact remains that the Prosecution knew the
whole case against the accused long before it was made known to the
accused. The Prosecution should have made every eVort to bring the
whole case against the accused before the conrming Judge, so as to avoid
any impression that the case against the accused was constructed subse-
quent to his arrest, and to adhere to the principle of equality of arms.
136
When the ICTY Appeals Chamber dismissed a charge of committing
genocide but convicted Krstic of aiding and abetting in genocide, the Prose-
cutor sought to amend the indictment during another pending trial also
dealing with the Srebrenica massacre. The Trial Chamber denied the Prosecu-
tions motion, considering that the proposed amendment at that stage of the
proceedings was not in the interests of justice.
137
134
Karemera et al. (ICTR-98-44-PT), Decision on Severance of Andre Rwamakuba and for
Leave to File Amended Indictment, Articles 6, 11, 12 quarter 18 and 20 of the Statute;
RPE, Rules 47, 50 and 82(B), 14 February 2005, para. 35; Bizimungu (ICTR-99-50-
AR50), Decision on Prosecutors Interlocutory Appeal against Trial Chamber II Deci-
sion of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004,
para. 16.
135
Kunarac (IT-96-23-PT), Order Granting Leave to File an Amended Indictment and
Conrming the Amended Indictment, 19 August 1998.
136
Kovac evic (IT-97-24-I), Decision on Prosecutors Request to File an Amended Indict-
ment, 5 March 1998, para. 12.
137
Blagojevic (IT-02-60-T), Decision on Prosecutions Motion for Leave to File Fourth
Amended Joinder Indictment, 10 June 2004.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 373
In one case, an ICTY Trial Chamber actually invited amendments, when at
the conclusion of a preliminary hearing held pursuant to Rule 61 the judges
suggested that the Prosecutor allege counts of genocide and rape.
138
According
to Richard Goldstone, the lawyers working on the indictment felt there was
insuYcient evidence to justify charging Nikolic with gender crimes. But one of
the two women judges who was then sitting on the Tribunal, Elizabeth Odio
Benito, publicly exhorted the Prosecutor to include gender crimes in the
indictment, on the basis of witness statements. Her colleagues agreed, and
the Trial Chamber declared that it felt the prosecutor may be well advised to
review these statements carefully with a view to ascertaining whether to charge
Dragan Nikolic with rapes and other forms of sexual assault, either as a crime
against humanity or as grave breach or war crimes.
139
One commentator has
observed that the propriety of a trial chambers doing so (at least one that
will sit in judgment on the case) is unclear.
140
It took more than four years
for the Prosecutor to get around to applying for an amendment in response to
the suggestions of the Trial Chamber.
141
The indictment of an accused who has been transferred to the Tribunal by a
State may be amended to add new charges, even if surrender or transfer was
not requested on this basis. There is no rule of speciality, in contrast with the
situation in inter-State extradition. The principle of specialty prevents a
receiving State from prosecuting an accused for charges that were not part
of the extradition agreement, unless the sending State consents. This principle
has been held to be inapplicable to prosecution by the international tribu-
nals.
142
It is uncertain whether this would apply to the SCSL however, to the
extent that transfer of an accused would take place consensually rather than by
virtue of the Security Council resolutions that dictate cooperation with the
ICTY and ICTR. Conceivably, a State might agree to transfer a suspect to the
SCSL on the condition that the rule of specialty be observed. There have been
no cases of transfer to the SCSL by another State.
138
Dragan Nikolic (IT-94-2-R61), Review of Indictment Pursuant to Rule 61, 20 October
1995.
139
Goldstone, Prosecuting Rape as a War Crime, at pp. 281282.
140
Murphy, Progress and Jurisprudence of the ICTY, at p. 73.
141
Dragan Nikolic (IT-94-2-I), Order Conrming the Amended Indictment, 12 February
1999.
142
Kovac evic (IT-97-24-AR73), Decision Stating Reasons for Appeals Chambers Order of
29 May 1998, 2 July 1998, para. 37. See, however, article 101 of the Rome Statute, which
establishes a principle of speciality. This is explained by the concept of complementarity,
so fundamental to the operation of the International Criminal Court but inapplicable to
the ad hoc tribunals.
374 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Withdrawal of the indictment
The entire indictment may also be withdrawn, with leave of the Tribunal.
143
For example, this is the practice when an accused person has died. In Decem-
ber 2003, the SCSL Prosecutor successfully applied to withdraw indictments
against two of the more celebrated accused once he was satised that reports
of their deaths were accurate.
144
No similar action has been taken with respect
to a third accused who is frequently rumoured to be dead but where the
evidence of this is unclear at best.
145
But in an early case, an ICTY Trial
Chamber refused to authorise withdrawal of an indictment of an accused who
was terminally ill.
146
In some cases, indictments have been withdrawn when
the Prosecutor determined that there was insuYcient evidence for a convic-
tion,
147
or that the person before the Tribunal was not in fact the one charged
in the indictment.
148
In the case of withdrawal of an indictment prior to trial,
the Trial Chamber cannot then declare an acquittal.
149
It would presumably
always be possible for the Prosecutor to reindict the accused, subject to any
challenge that this might constitute an abuse of process.
In Kupres kic , the Trial Chamber authorised withdrawal of charges, but
added that in the future, the Prosecution will act expeditiously on matters
of such fundamental importance as the liberty of the accused.
150
Some with-
drawals have been based on prosecutorial strategy. Thus, in May 1998, the
ICTY decided to withdraw charges against several persons not in custody
because the focus had shifted to persons who were more senior in rank and
143
ICTY RPE, Rule 51; ICTR RPE, Rule 51; SCSL RPE, Rule 51. E.g., Rusatira (ICTR-2002-
80-I), Decisions on the Prosecutors Ex Parte Application for Leave to Withdraw the
Indictment, 14 August 2002.
144
Sankoh (SCSL-03-02-PT), Withdrawal of Indictment, 8 December 2003; Bokarie (SCSL-
03-04-PT), Withdrawal of Indictment, 8 December 2003.
145
Koroma (SCSL-03-03-I), Indictment, 7 March 2003.
146
Djukic (IT-96-20-PT), Transcript, 24 April 1996.
147
Kupres kic (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of
Indictment Against Marinko Katava, 19 December 1997; Kordic and C
erkez (IT-94-14/
2-PT), Order on Prosecutors Motion for Leave to Withdraw the Indictment Against
Pero Skopljak, 19 December 1997; Kordic and C
antic, 19 Decem-
ber 1997; Rusatira (ICTR-2002-80-I), Decisions on the Prosecutors Ex Parte
Application for Leave to Withdraw the Indictment, 14 August 2002.
148
Lajic (IT-95-8-T), Order for the Withdrawal of the Charges Against the Person Named
Goran Lajic and for his Release, 17 June 1996. The order was without prejudice to the
accusations against the right Goran Lajic.
149
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
Indictment, 18 March 1999, p. 7.
150
Kupres kic (IT-95-16-PT), Decision on Motion by the Prosecutor for Withdrawal of
Indictment Against Marinko Katava, 19 December 1997.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 375
in responsibility.
151
The Prosecutor explained: [T]his decision is not based on
any lack of evidence in respect of these accused. I do not consider it feasible at
this time to hold multiple separate trials for related oVences committed by
perpetrators who could appropriately be tried in another judicial forum, such
as a State Court.
152
When the Conrming Judge authorised charges of crimes
against humanity but refused to approve charges of genocide, the Prosecutor
sought withdrawal of the charges because the lesser oVence did not justify an
important investment of precious resources.
153
Given that the Prosecutors discretion to indict an individual is virtually
absolute, it seems odd that he or she should even be required to seek permis-
sion to withdraw an indictment. One ruling authorising withdrawal of the
charges has said as much, suggesting that permission to withdraw an indict-
ment will be granted as of right.
154
It is diYcult to conceive of what would
happen if such a motion were refused. How could the Prosecutor be forced to
proceed? What evidence could he or she be forced to produce?
155
Withdrawal of a charge terminates the proceedings, and entails the
immediate and unconditional release of the accused. After granting the
Prosecutors request to withdraw the indictment, an ICTR Trial Chamber held
that it was without authority to order that the accused be released to the
custody of a State for purposes of prosecution by national authorities.
156
Subsequent amendments to the RPE allow the tribunals to refer cases to
national authorities.
157
Under the procedure, according to the title of Rule
11 bis, it is the indictment that is referred to the national tribunal. However,
the national legal systems will almost surely elect to proceed by virtue of a new
indictment, issued in their own language and according to their own sub-
stantive criminal law and criminal procedure. In such a case, the indictment of
151
On 5 and 8 May 1998, charges were withdrawn against Zdravko Govedarica, Goran
Gruban, Predag Kostic, Nedeljko Paspalj, Milan Pavlic, Milutin Popovic, Drazenko
Predojevic, Z
aponja.
152
Statement by the Prosecutor Following the Withdrawal of the Charges Against 14
Accused, ICTY Doc. CC/PIU/314-E (8 May 1998).
153
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
Indictment, 18 March 1999.
154
Ibid., p. 6.
155
Such a situation is contemplated by the Rome Statute. If the Prosecutor decides not to
proceed with a case that has been referred by a State party or by the Security Council, he
may be required to justify this exercise of discretion before the Pre-Trial Chamber.
The consequences of a refusal by the Pre-Trial Chamber to conrm the Prosecutors
decision are unclear. See: Rome Statute of the International Criminal Court, UN Doc.
A/CONF.183/9, art. 53(3).
156
Ntuyahaga (ICTR-98-40-T), Decision on the Prosecutors Motion to Withdraw the
Indictment, 18 March 1999, p. 7.
157
ICTY RPE, Rule 11bis; ICTR RPE, Rule 11bis.
376 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
the International Tribunal would nevertheless remain in force, although it
would not be the basis of prosecution. It would seem proper that upon
completion of the national proceedings to the satisfaction of the Prosecutor,
she would then request withdrawal of the indictment.
158
Arrest and provisional detention
Arrest is dened in the ICTY Rules of Procedure and Evidence as [t]he act of
taking a suspect or an accused into custody pursuant to a warrant of arrest or
under Rule 40.
159
There are, accordingly, two modes of arrest. The rst takes
place pursuant to a warrant, which will normally be issued by the Reviewing
Judge who authorises the indictment, in accordance with a provision common
to the ICTYand ICTR statutes.
160
The SCSL Statute says nothing about arrest,
and the matter is governed exclusively by the RPE. The second mode, known
as provisional arrest, involves arrest at the initiative of the Prosecutor alone,
without any involvement of the judges of the Tribunal. The Prosecutor is
empowered to take all necessary measures to prevent the escape of a suspect
or an accused. This procedure, provided for in Rule 40 of the RPE, nds no
basis in the statutes. Challenges to the legality of Rule 40 based on the
argument that it goes beyond the terms of the statutes, which only contem-
plate arrest warrants authorised by a judge, have been dismissed.
161
Although
a suspect arrested pursuant to Rule 40 is not yet within the custody of the
Tribunal, time spent in detention on this basis will be credited eventually, in
the event of conviction.
162
The RPE do not indicate the manner and method in which an arrest of a
suspect is to be eVected by a cooperating State under Rule 40 and do not, for
example, prescribe the suspects right to be promptly informed of the reasons
for arrest or to be brought before a judge. As the ICTY Appeals Chamber has
observed, [i]t is for the requested State to decide how to implement its
obligations under international law.
163
But the Appeals Chamber has also in-
sisted that cooperating States must respect their obligations under customary
158
Subject, of course, to the non bis in idem principle: ICTY Statute, art. 10(2); ICTR
Statute, art. 9(2).
159
ICTY RPE, Rule 2. The text of ICTR RPE, Rule 2 and SCSL RPE, Rule 2 is slightly
diVerent, adding the words apprehending and before taking.
160
ICTY Statute, art. 19; ICTR Statute, art. 18.
161
Barayagwiza (ICTR-97-19-I), Decision on the Extremely Urgent Motion by the Defence
for Orders to Review and/or Nullify the Arrest and Provisional Detention of the Suspect,
17 November 1998, p. 6; Ntabakuze (ICTR-97-34-T), Decision on the Defence Motion
for Annulment of Proceedings, Release and Return of Personal Items and Documents,
25 September 1998.
162
Delalic et al. (IT-96-21-T), Judgment, 16 November 1998, paras. 11871289.
163
Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 219.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 377
international law, as well as applicable treaties.
164
Because detention is carried
out at the initiative of the Prosecutor, she has a duty of due diligence towards
the accused from the outset with respect to the treatment of the suspect by the
authorities of the cooperating State. Accordingly,
[t]he request to the authorities of the cooperating State has to include a
notication to the judiciary, or at least, by way of the Tribunals primacy, a
clause reminding the national authorities to promptly bring the suspect
before a domestic Judge in order to ensure that the apprehended persons
rights are safeguarded by a Judge of the requested State as outlined above.
In addition, the Prosecution must notify the Tribunal in order to enable a
Judge to furnish the cooperating State with a provisional arrest warrant
and transfer order.
165
The ICTY Rules were amended, in 1996,
166
so as to limit the period of time
during which a suspect may be detained without being indicted under the
provisional arrest provision.
167
Pursuant to the amended Rule, a judge may
order the transfer and provisional detention of a suspect if the Prosecutor has
requested a State to arrest the suspect provisionally, in accordance with Rule
40, or if the suspect is otherwise detained by State authorities. The judge must
consider that there is a reliable and consistent body of material which tends to
show that the suspect may have committed a crime over which the Tribunal
has jurisdiction, and that provisional detention is necessary to prevent the es-
cape of the suspect, injury to or intimidation of a victim or witness or the
destruction of evidence. Such provisional detention of a suspect can only be
ordered for a period of thirty days from the date of transfer of the suspect to
the seat of the Tribunal, after which it can be renewed following a hearing at
which the suspect is represented.
Although in principle an accused who is brought to the Tribunal must
appear without delay, it may be that the Prosecutor is not yet prepared to
present the indictment, and that further investigations are underway. The
Rules allow the provisional detention to be extended where this is warranted
by special circumstances and the needs of the investigation. In one case, the
ICTY Prosecutor invoked a breakdown of structures between the Prosecu-
tors oYces in The Hague, Arusha and Kigali which, to some extent, aVec-
ted the investigations. Judge Mse found it diYcult to accept that lack of
administrative coordination or communication may justify an extension of a
164
Ibid., para. 220.
165
Ibid., para. 222.
166
ICTY RPE, Rule 40bis (UN Doc. IT/32/Rev.8, subsequently amended by UN Doc. IT/32/
Rev.18). ICTR RPE, Rule 40bis is to the same general eVect, although it is somewhat
shorter.
167
Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999, para. 46.
378 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
suspects detention under the Statute and the Rules, but he eventually agreed
to a short extension of provisional detention.
168
A controversial episode of application of Rule 40bis arose at the ICTR,
when the Prosecutor requested that the Government of Cameroon arrest
suspects who were in that country. In fact, Jean-Bosco Barayagwiza had
already been arrested pursuant to requests from both Rwanda and Belgium,
when Prosecutor Richard Goldstone, acting pursuant to Rule 40, asked that he
be detained. Cameroon apparently complied, but a month later the Prosecu-
tor said he was no longer interested in the suspect, who had not been indicted
at that point. Several months later, when the Yaounde courts decided to deny
Rwandas extradition request and release Barayagwiza, Prosecutor Louise
Arbour led a new request under Rule 40, and asked that the suspect be
transferred to the Tribunal in Arusha. Through no real fault of the Prosecutor,
Barayagwiza was not actually transferred for several months. When he did get
to Arusha, he was detained for a period well in excess of thirty days before his
situation was regularised. When Barayagwiza challenged these proceedings, he
was initially successful before the Appeals Chamber, which considered the
entire procedure to be fraught with abuse, but the matter was reconsidered
and the remedy of release was judged to be excessive in the circumstances.
169
Most arrests are eVected by the authorities of States in execution of an
arrest warrant issued by a judge with respect to a suspect who has already been
indicted. An arrest warrant must be signed by a judge, and include an order
for the prompt transfer of the accused to the Tribunal upon the arrest of the
accused. The Registrar is responsible for transmitting a certied copy of
the warrant to the person or authorities to whom it is addressed, including
the national authorities of a State in whose territory or under whose jurisdic-
tion the accused resides, or was last known to be, or is believed by the
Registrar to be likely to be found.
170
Frequently, representatives of the OYce
of the Prosecutor will be present when arrests are carried out.
The ICTYand ICTR statutes require States to cooperate with the tribunals.
More specically, they are to comply without undue delay with any request
for assistance or an order issued by a Trial Chamber, including . . . the arrest or
detention of persons [and] the surrender or the transfer of the accused to the
International Tribunal.
171
The arrest and surrender provisions of the SCSL are
168
Renzaho (ICTR-97-31-DP), Decision on the Prosecutors Request for the Extension of
the Suspects Detention (Rule 40bis (F) of the Rules of Procedure and Evidence), 4
November 2002, para. 7.
169
Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999; Barayagwiza (ICTR-97-
19-AR72), Decision (Prosecutors Request for Review or Reconsideration), 31 March
2000.
170
ICTY RPE, Rule 55; ICTR RPE, Rule 55; SCSL RPE, Rule 55.
171
ICTY Statute, art. 29; ICTR Statute, art. 28.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 379
governed by the enabling legislation in that country. The SCSL has no
authority to require arrest and surrender outside of Sierra Leone, although
nothing prevents a State from agreeing to cooperate with the Court. In an
early case, President Cassese said: The Republic of Croatia is undisputedly in
breach of an international obligation incumbent on it. Croatia was refusing to
arrest General Blaskic, arguing that it did not yet have national legislation
authorising cooperation with the ICTY. Judge Cassese noted abundant
authority in international law holding that States cannot invoke the short-
comings of their own national law for failure to observe their international
obligations.
172
Security Council resolutions adopted subsequent to the creation of the
tribunals have reminded States of their obligations to cooperate. Many States
have been fully compliant, and have dutifully enacted national legislation to
assist in the process. Occasionally, accused persons have temporarily resisted
surrender to the tribunals through legal challenges before national courts,
173
but there are no examples of the process being frustrated permanently in this
way.
Some States have been rather deant. In the early days of the ICTR, Kenya
declared its resistance to requests for cooperation, but later withdrew from
such an extreme position. Several arrests were subsequently conducted within
Kenya by national authorities, with the assistance of agents from the OYce
of the Prosecutor. Neither Croatia nor Serbia had a good record of coopera-
tion,
174
despite undertakings they had made at Dayton.
175
Subsequent political
changes within both countries softened the position.
Because of the signicant presence of peacekeeping forces within Bosnia
and Herzegovina after the Dayton Peace Agreement of NovemberDecember
1995, there have been repeated calls for the NATO Implementation Force
(IFOR), subsequently renamed the NATO Stabilization Force (SFOR), to
172
Blas kic (IT-95-14-IT), Decision on the Motion of the Defence Filed Pursuant to Rule 64
of the Rules of Procedure and Evidence, 3 April 1996, para. 7.
173
In re Ntakirutimana, 998 F.Supp. 1038 (SD TX, 1997); Ntakirutimana v. Reno, 184 F.3d
419 (5th Cir. 1999), cert. denied, 528 US 1135 (2000).
174
For a full discussion of attempts to pressure governments in the region to cooperate, see:
Scharf, Tools for Enforcing International Criminal Justice.
175
Article IX of the General Framework Agreement and Article XIII(4) of the Agreement
on Human Rights required Bosnia, Croatia, and the Federal Republic of Yugoslavia to
cooperate fully with and give unrestricted access to the ICTY. The requirement was
extended to the Republika Srpska by Article IV of the Agreement on Civilian Imple-
mentation. Article IX(1) of the Constitution of Bosnia prohibits any person who has
been indicted by and has failed to comply with an order to appear before the Tribunal
from holding any appointive, elective or other public oYce in the territory of Bosnia. In
addition, it requires all competent authorities in Bosnia to cooperate with and to grant
unrestricted access to the Tribunal.
380 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
carry out arrests of suspects. For some time it was contended that while IFOR
and SFOR might have the authority to eVect arrests, they were under no duty
to do so.
176
The resistance within NATO was not only based on technical legal
arguments. There was also a perception that priority should be military
disengagement and that the tenuous stability which had been created could
be undermined if NATO became entangled in arresting indicted war crim-
inals.
177
In mid-1997, NATO policy underwent a change, and troops of some
participating countries, notably the United Kingdom and the United States,
became more active in eVecting arrests.
178
Defendants have challenged their arrests as being illegal, and sought release
as a remedy.
179
ICTY defendant Dragan Nikolic alleged that he had been
abducted from Serbia and Montenegro by SFOR troops, in cooperation with
personnel from the OYce of the Prosecutor, and that this was a violation both
of State sovereignty and of his own human rights. He claimed that the
Tribunal was without jurisdiction to prosecute him as a result. The argument
is not a novel one, and was unsuccessfully raised in the historic Eichmann
prosecution,
180
to which the ICTYAppeals Chamber referred in its ruling. The
Appeals Chamber felt that the legitimate expectation that persons accused of
genocide, war crimes and crimes against humanity be brought to justice
outweighed the abuse involved in illegal arrests.
181
However, the Appeals
Chamber did not overrule, and in fact specically reaYrmed, its previous
ruling in Barayagwiza that it could refuse to exercise its jurisdiction in cases
where to exercise that jurisdiction in light of serious and egregious violations
of the accuseds rights would prove detrimental to the courts integrity.
182
The arrest of Slavko Dokmanovic in June 1997 was eVected when he was
lured or tricked by ICTY investigators. Dokmanovic resided in the Federal
Republic of Yugoslavia, which was not cooperating with the Tribunal at the
time. In the course of eVorts to obtain compensation for loss of his personal
property in Croatia, he agreed to cross the border for a meeting with the
176
Discussed in Scharf, Tools for Enforcing International Criminal Justice, at pp. 975978.
Also: Mikas Kalinauskas, The Use of International Military Force in Arresting War
Criminals: The Lessons of the International Criminal Tribunal for the Former Yugosla-
via, (2002) 50 University of Kansas Law Review 383.
177
Payam Akhavan, cited in Scharf, Tools for Enforcing International Criminal Justice, at
p. 957.
178
Fourth Annual Report of the ICTY, UN Doc. A/52/375-S/1997/729, para. 2.
179
E.g., Dokmanovic (IT-95-13a-PT), Decision on the Motion for Release by the Accused
Slavko Dokmanovic, 22 October 1997.
180
A.-G. Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), paras. 4152.
181
Dragan Nikolic (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality
of Arrest, 5 June 2003, para. 25. Also: Dragan Nikolic (IT-94-2-S), Sentencing Judgment,
18 December 2003, paras. 2132.
182
Ibid., para. 29.
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 381
United Nations Transitional Administration in Eastern Slavonia (UNTAES)
Transitional Administrator in Croatia. Dokmanovic was taken to the UNTAES
base, handcuVed, informed of his rights, and own to The Hague.
183
Dokmanovic challenged his arrest as illegal, saying that only the authorities
of the Federal Republic of Yugoslavia were empowered to arrest him, and that
he had in eVect been kidnapped. The Trial Chamber dismissed the challenge,
nding support in national practice for the luring of suspects in order to eVect
arrest, and concluding that this was not an abuse of process.
184
When an arrest warrant cannot be executed, Rule 61 provides a special
procedure at which evidence may be produced and witnesses called. The
accused is, of course, not present at the hearing, and may not even be
represented by counsel.
185
At the conclusion of the hearing, the Trial Chamber
may determine that there are reasonable grounds for believing that the
accused has committed all or any of the crimes charged in the indictment.
Rule 61 was adopted as a compromise intended to assuage critics from
continental European justice systems who charged that the lack of an in
absentia procedure would seriously hamper the work of the Tribunal. Rule
61 proceedings do, in many respects, resemble in absentia trials, which are
common in some criminal justice systems, although judges have regularly
denied the connection.
186
The main distinction is that a Rule 61 proceeding
does not pronounce a sentence. In the early years of the ICTY, several hearings
were held pursuant to Rule 61, but the practice was discontinued once the
Tribunal had defendants in custody and the suggestion that it could only
function if it could conduct in absentia hearings no longer made any sense.
187
183
Murphy, Progress and Jurisprudence of the ICTY, at pp. 7576.
184
Dokmanovic (No. IT-95-13a-PT), Decision on the Motion for Release by the Accused
Slavko Dokmanovic, 22 October 1997. Leave to appeal was denied by a three-judge
panel of the Appeals Chamber on 11 November 1997.
185
Karadzic et al. (IT-95-5-R61 and IT-95-18-R61), Review of the Indictment Pursuant to
Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 4. But see Rajic (IT-
95-12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure
and Evidence, 13 September 1996; Rajic (IT-95-12-R61), Separate Opinion of Judge
Sidhwa, paras. 1016.
186
Rajic (IT-95-12-R61), Review of the Indictment Pursuant to Rule 61 of the Rules of
Procedure and Evidence, 13 September 1996: A Rule 61 proceeding is not a trial in
absentia. There is no nding of guilt in this proceeding. Dragan Nikolic (IT-94-2-R61),
Review of Indictment Pursuant to Rule 61, 20 October 1995: The Rule 61 procedure . . .
cannot be considered a trial in absentia: it does not culminate in a verdict nor does it
deprive the accused of the right to contest in person the charges brought against him
before the Tribunal.
187
See: Fa za Patel King, Public Disclosure in Rule 61 Proceedings Before the International
Criminal Tribunal for the Former Yugoslavia, (1997) 29 New York University Journal of
International Law and Policy 523; Mark ThieroV and Edward A. Amley Jr, Proceeding to
Justice and Accountability in the Balkans: The International Criminal Tribunal for the
382 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Reecting on the procedure, Louise Arbour has said it was detrimental to the
work of the Prosecutor.
188
Neither the ICTR nor the SCSL ever showed any
interest in Rule 61 proceedings, and the concept was not reproduced in the
Rome Statute of the International Criminal Court. It is now little more than
an historical curiosity, although some of the rulings made in Rule 61 hearings
are still occasionally cited as authority.
189
Deferral
In accordance with an express provision entitled [c]oncurrent jurisdiction in
their statutes, the three tribunals may at any stage of the procedure request
that national proceedings against an accused be deferred in their favour.
190
The power of the tribunals to insist upon deferral of cases pending before
national courts had some signicance at the beginning of their operations.
Both the ICTY and ICTR used deferral to obtain jurisdiction over their rst
suspects. It soon became relatively insignicant, however, as oVenders were
either captured before national proceedings had even been considered, or they
surrendered themselves to the tribunals. In addition, cases before the courts
of Serbia, Bosnia and Croatia have been subject to the Rules of the Road,
which eVectively gives the Prosecutor a veto over national prosecutors,
thereby obviating the need for deferral proceedings. Within less than a
decade, the emphasis was upon sending cases back to the national courts,
not withdrawing them in favour of the international tribunals.
The ICTY and ICTR have primacy over national courts of any country,
whereas the SCSL has primacy only over the courts of Sierra Leone. The SCSL
provision is a bit enigmatic, because it allows the Court to request a deferral
from a national court, and then species that the SCSL has concurrent
jurisdiction with the national courts of Sierra Leone. There would seem to
be nothing to stop the SCSL from seeking deferral from national courts other
than those of Sierra Leone, nor is there anything to prevent those courts from
complying. Why, then, state that the SCSL has concurrent jurisdiction with
the courts of Sierra Leone when in fact it has concurrent jurisdiction with the
courts of all countries, to the extent that such courts can exercise jurisdiction
Former Yugoslavia and Rule 61, (1998) 23 Yale Journal of International Law 231; Brian
T. Hildreth, Hunting the Hunters: The United Nations Unleashes its Latest Weapon in
the Fight against Fugitive War Crimes Suspects Rule 61, (1998) 6 Tulane Journal of
International and Comparative Law 499; Anne L. Quintal, Rule 61: The Voice of the
Victims Screams Out for Justice, (1998) 36 Columbia Journal of Transnational Law 723.
188
Arbour, The Crucial Years, at p. 399.
189
Blagojevic (IT-02-60-T), Judgment, 17 January 2005, para. 646, fn. 2072, para. 667, fn.
2110.
190
ICTY Statute, art. 9(2); ICTR Statute, art. 9(1); SCSL Statute, art. 8(2).
I N V E S T I G AT I O N A N D P R E - T R I A L P R O C E D U R E 383
over crimes against humanity and war crimes committed in Sierra Leone? The
explanation for this apparent anomaly in the drafting probably lies with the
attempt to transpose the concurrent jurisdiction provision of the ICTY and
ICTR statutes to the somewhat diVerent context of the treaty-based SCSL.
Probably the drafters of the SCSL Statute simply did not think through this
point.
The concurrent jurisdictional provisions in the statutes are completed by
Rules 9 and 10 of the RPE. Rule 9 provides that in the event of investigation or
criminal proceedings instituted in the courts of any State, the Prosecutor may
propose to the Trial Chamber designated by the President that a formal
request be made that such court defer to the competence of the Tribunal.
Rule 10 sets out the procedure for a deferral application.
The relevant criteria to be considered by the Prosecutor vary somewhat
from Tribunal to Tribunal. According to ICTY Rule 9, the Prosecutor may
make the application for deferral when the act being investigated or prose-
cuted is characterised as an ordinary crime, when there is a lack of impartiality
or independence in the national institutions, when the investigations or
proceedings are designed to shield the accused from international criminal
responsibility, when the case is not diligently prosecuted, or what is in issue is
closely related to, or otherwise involves, signicant factual or legal questions
which may have implications for investigations or prosecutions before the
Tribunal. The ICTR and SCSL Prosecutors are to consider the seriousness of
the oVences, the status of the accused at the time of the alleged oVences and
the general importance of the legal questions involved in the case. This is an
interesting attempt by the judges to constrain the discretion of the Prosecutor
in determining whom to prosecute; the statutes do not suggest that the judges
have any right to oversee the choices made by the Prosecutor in this respect.
In 1994, Munich police arrested Dusko Tadic after he was identied by
Bosnian refugees.
191
Later that year, with proceedings underway in the Ger-
man courts, Prosecutor Goldstones application for deferral of the German
proceedings was authorised by an ICTY Trial Chamber.
192
Germany did not
transfer the accused until the following April, after the German Parliament
enacted legislation enabling cooperation with the Tribunal.
193
A few days after
Tadics rst appearance before the Tribunal in The Hague, two other deferral
requests were granted. The rst dealt with the leadership of the Bosnian
191
Anna Tomforde, German Police Hold Serb for War Crimes, Munich Arrest Follows
Investigation by Television Crew, Guardian, 15 February 1994, p. 11.
192
Tadic (IT-94-1-D), Decision of the Trial Chamber on the Application by the Prosecutor
for a Formal Request for Deferral to the Competence of the International Tribunal in the
Matter of Dusko Tadic, 8 November 1994.
193
Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, para. 13.
384 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Serb forces, then still very much at war. Three individuals were identied:
Radovan Karadzic, Ratko Mladic and Mico Stanisic.
194
The other deferral
request dealt with atrocities committed in the Lasva river valley and, unu-
sually, listed no names of individuals.
195
Subsequently, however, several
accused were identied. Over the years, the Tribunal has prosecuted a number
of persons for their involvement in the Lasva river valley crimes (Furundzija,
Blaskic, Kordic, C
eselj described Judges Mumba and Agius as ardent and zealous Catho-
lics, adding that the Roman Catholic Church had contributed to the
33
Sesay (SCSL-04-15-AR15), Decision on Defence Motion Seeking the Disqualication of
Justice Robertson from the Appeals Chamber, 13 March 2004, para. 7.
34
Ibid., para. 15.
T R I A L A N D P O S T- T R I A L P R O C E D U R E 417
destruction of Yugoslavia. The Bureau said the nationalities and religions of
Judges are, and must be, irrelevant to their ability to hear the cases before
them impartially.
35
In Furundzija, the accused challenged the impartiality of Judge Mumba
because she had served as the Zambian delegate to the United Nations
Commission on the Status of Women, and could be said to share its feminist
legal and political agenda. He did not charge that she was actually biased, but
noted that other participants in the proceedings, notably one of the prosecu-
tion lawyers and members of an amicus curiae team, had also been involved
with the Commission. According to the ICTYAppeals Chamber, even if Judge
Mumba shared the goals and objectives of the Commission, which were to
promote and protect the human rights of women, she could still sit on a case
and impartially decide upon issues aVecting women.
36
The Appeals Chamber
observed that the Statute encouraged judges to be qualied in the area of
international human rights, noting that a judge should not be disqualied
because of qualications he or she possesses which, by their very nature,
play an integral role in satisfying the eligibility requirements . . . It would be an
odd result if the operation of an eligibility requirement were to lead to an
inference of bias.
37
A challenge to Judge Odio-Benito based on her membership on the Board
of Trustees of the United Nations Voluntary Fund for the Relief of Victims of
Torture met a similar fate.
38
Similarly, the SCSL Appeals Chamber dismissed a
challenge to Judge Winter, seeking her recusal from a motion on the legality of
the crime of recruiting child soldiers. The defence argued that she had long
been associated with a variety of childrens rights organisations, and more
specically had participated in a UNICEF publication relevant to the work of
the SCSL that supported prosecution of the oVence of recruitment.
39
When her term came to an end, in 1997, and she was not re-elected, Judge
Odio-Benito was appointed Vice-President of Costa Rica. She took the oath of
oYce for that position prior to completing an ongoing trial. The defence
argued that having become a member of the executive branch of Costa Rica,
35
S
erkez, an ICTY
Trial Chamber said the test to be applied was not whether there was evidence
that satised the Trial Chamber beyond a reasonable doubt of the guilt of the
accused, but rather whether there was evidence on which a reasonable Trial
Chamber could base a conviction. In the view of the judges, a distinction must
be made between a determination as to whether there is a case to answer and
matters aVecting the credibility of the witness and, where the witness is able to
give evidence relevant to the case for the cross-examining party, to the subject-
matter of that case. The party who has called the witness can then re-examine
in order to clarify issues that were raised in the cross-examination.
According to an ICTY Trial Chamber,
[a]lthough the Prosecution has referred to the proceedings under this Rule
as no case to answer, using the description to be found in many common
law jurisdictions, the Chamber considers that the better approach is not to
characterise Rule 98bis proceedings in that way, lest it be thought that the
Rule must necessarily be applied in the same way as proceedings for no
case to answer in those jurisdictions. It is true that Rule 98bis proceedings,
coming as they do at the end of the Prosecutions case, bear a close
resemblance to applications for no case to answer in common law jur-
isdictions. However, that does not necessarily mean that the regime to be
applied for Rule 98bis proceedings is the same as that which is applicable
in the domestic jurisdictions of those countries. Ultimately, the regime to
430 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
be applied for Rule 98bis proceedings is to be determined on the basis of
the Statute and the Rules, having in mind, in particular, its construction in
the light of the context in which the Statute operates and the purpose it is
intended to serve. That determination may be inuenced by features of the
regime in domestic jurisdictions with similar proceedings, but will not be
controlled by it; and therefore a proper construction of the Rule may
show a modication of some of those features in the transition from its
domestic berth.
101
Thus, [t]he evidence shall be assumed to be reliable and credible unless
convincing arguments have been raised that it is obviously unbelievable, such
that no reasonable trier of fact could rely upon it.
102
Normally, this does not
involve a determination of the credibility of a witnesss testimony. However,
there is a distinction which has to be drawn between the credibility of a
witness and the reliability of that witnesss evidence. Credibility depends
upon whether the witness should be believed. Reliability assumes that the
witness is speaking the truth, but depends upon whether the evidence, if
accepted, proves the fact to which it is directed . . . A situation where the
reliability of the evidence given by such a witness becomes of substantial
importance is well illustrated in relation to the issue of identication,
[because] special caution has been found to be necessary before accepting
identication evidence because of the possibility that even completely
honest witnesses may have been mistaken in their identication.
103
The test is whether there is evidence (if accepted) upon which a reasonable
tribunal of fact could convict that is to say, evidence (if accepted) upon
which a reasonable tribunal of fact could be satised beyond reasonable doubt
of the guilt of the accused on the particular charge in question. If the evidence
does not reach that standard, then the evidence is, to use the words of Rule
98bis, insuYcient to sustain a conviction.
104
101
Kordic et al. (IT-95-14/2-PT), Decision on Defence Motions for Judgment of Acquittal,
6 April 2000, para. 9. These views were endorsed by the ICTY Appeals Chamber: Jelisic
(IT-95-10-A), Judgment, 5 July 2001, para. 33; Galic (IT-98-29-T), Decision on the
Motion for the Entry of Acquittal of the Accused Stanislav Galic, 3 October 2002.
102
Bagosora et al. (ICTR-98-41-T), Decision on Motions for Judgment of Acquittal,
2 February 2005, para. 11.
103
Kunarac et al. (IT-96-23-T & IT-96-23/1-T), Decision on Motion for Acquittal, 3 July
2000. Also: Kvoc ka et al. (IT-98-30/1-T), Decision on Defence Motions for Acquittal,
15 December 2000; Imanishimwe (ICTR-99-46-T), Oral Decision, 6 March 2002;
Kamuhanda (ICTR-99-54A-T), Decision on Kamuhandas Motion for Partial Acquittal
Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 20 August 2002.
104
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Decision on Motion for Acquittal, 3 July
2000, para. 3 (emphasis in the original). These views were endorsed by the ICTYAppeals
Chamber: Jelisic (IT-95-10-A), Judgment, 5 July 2001, para. 36. Also: Kamuhanda
T R I A L A N D P O S T- T R I A L P R O C E D U R E 431
Although the decision at this stage is essentially about the suYciency of the
evidence, it is incorrect to say that issues of applicable law are not relevant. As
an ICTY Trial Chamber said, [i]f there is a dispute between the parties as to
whether the relevant charge includes a particular element, and if there is no
evidence to prove that particular element in dispute, the existence or other-
wise of that particular element becomes vital to the determination to be made
under Rule 98bis .
105
A total absence of proof of an essential element of an
oVence is justication for a motion of acquittal.
106
Judgment and sentence
Judgment is pronounced in public, in the presence of the parties. The judges
must issue a reasoned opinion in writing, either at the time the judgment is
issued or shortly afterward.
107
Judgments are issued in the two oYcial lan-
guages of the tribunal,
108
although it is generally indicated that one version is
authoritative. Judgments are also issued in a language which the accused
understands.
109
Although no specic form is set out in the statutes or the RPE, judgments
generally follow a pattern in which there is a summary of the procedural
background to the case, a presentation of the indictment itself, then a detailed
review of the factual issues followed by a discussion of the legal issues. The
consideration of factual issues often includes several paragraphs on the his-
torical background to the conict. When the issues are discussed, the case for
the Prosecutor is usually set out, followed by that of the defence, followed by a
section on the ndings of the Tribunal. The judgment concludes with a verdict
on each count in the indictment and, where this results in a conviction, the
appropriate sentence.
An accused is entitled to a reasoned judgment not only because this is a
requirement of the Statute and the RPE, but also as a fundamental right
owing from the right to a fair trial.
110
This does not mean that the Trial
(ICTR-99-54A-T), Decision on Kamuhandas Motion for Partial Acquittal Pursuant to
Rule 98bis of the Rules of Procedure and Evidence, 20 August 2002.
105
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Decision on Motion for Acquittal, 3 July
2000.
106
Sikirica et al. (IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001,
para. 9.
107
ICTY Statute, art. 23(2); ICTR Statute, art. 22(2); SCSL Statute, art. 18; ICTY RPE, Rule
98 ter (C); ICTR RPE, Rule 88(C); SCSL RPE, Rule 88(C).
108
Tadic (IT-94-1-AR72), Separate Declaration of Judge J. Deschenes on the Defence
Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
109
ICTY RPE, Rule 98ter(D).
110
Georgiadis v. Greece, 29 May 1997, European Court of Human Rights, Report 1997-III.
432 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Chamber is required to justify its ndings on every single submission of
the defence. Trial Chambers have some discretion in deciding which legal
arguments to address. As for factual ndings,
the Trial Chamber is required only to make ndings of those facts which
are essential to the determination of guilt on a particular count. It is not
necessary to refer to the testimony of every witness or every piece of
evidence on the trial record. It is to be presumed that the Trial Chamber
evaluated all the evidence presented to it, as long as there is no indication
that the Trial Chamber completely disregarded any particular piece of
evidence. There may be an indication of disregard when evidence which
is clearly relevant to the ndings is not addressed by the Trial Chambers
reasoning, but not every inconsistency which the Trial Chamber failed to
discuss renders its opinion defective.
111
If an accused person is acquitted, he or she is to be immediately released,
unless the Prosecutor informs the Trial Chamber in open court of the Prose-
cutors intention to le a notice of appeal. The Trial Chamber may then order
the continued detention of the accused, pending the determination of the
appeal.
112
Accused persons at the ICTYand ICTR are unlikely to be nationals
of the Netherlands and Tanzania, respectively, and for this reason have no legal
right to remain within the country. According to the Headquarters Agree-
ments, an accused person who is transferred to the host State of the Tribunal
enjoys immunity from the national criminal jurisdiction. If the accused
person is subsequently acquitted or otherwise released, the immunity con-
tinues for a period of fteen days to provide that person with the opportunity
of leaving the territory of the host State.
113
It is not always a simple matter,
however, for the person concerned to leave the host State. In its 2001 Annual
Report, the ICTY noted that Ignace Bagilishema, who had been acquitted, was
having trouble leaving Tanzania and obtaining entry into another country.
The Tribunal has grave concern for the plight of accused persons who are
subsequently acquitted and urges the international community to open their
borders to them, the Annual Report states.
114
111
Kvoc ka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 23 (reference omitted).
112
ICTY RPE, Rule 99.
113
Agreement between the United Nations and the Kingdom of the Netherlands concern-
ing the Headquarters of the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in
the Territory of the Former Yugoslavia, UN Doc. S/1994/848, annex, art. XX; Agreement
between the United Nations and the United Republic of Tanzania concerning the
Headquarters of the International Tribunal for Rwanda, UN Doc. A/51/399-S/1996/
778, annex, art. XX(2).
114
Sixth Annual Report of the ICTR, UN Doc. A/56/351-S/2001/863, annex, para. 16.
T R I A L A N D P O S T- T R I A L P R O C E D U R E 433
Cumulative convictions
The crimes within the jurisdictions of the tribunals are derived from diVerent
sources, both customary and conventional, and when they were rst dened
they were never intended to be part of a coherent and comprehensive codi-
cation of serious violations of international humanitarian law. As a result,
there is considerable overlap, and a distinct criminal act may well t within
the denition of genocide, crimes against humanity and war crimes. The
Prosecutor has opted for a relatively exhaustive approach to indictment, so
that when several crimes may be associated with a single act, many or all of
them are charged against the accused. It is at the judgment stage that the
tribunals must decide whether or not to enter cumulative convictions. The
central concern is that cumulative convictions create a very real risk of . . .
prejudice to the accused. Such persons suVer the stigma inherent in being
convicted of an additional crime for the same conduct. In a more tangible
sense, there may also be consequences such as losing eligibility for early release
under the law of the State enforcing the sentence.
115
The ICTR Appeals Chamber, in Musema, conrmed that reasons of fair-
ness to the accused and the consideration that only distinct crimes may justify
multiple convictions, lead to the conclusion that multiple criminal convic-
tions entered under diVerent statutory provisions but based on the same
conduct are permissible only if each statutory provision involved has a
materially distinct element not contained in the other.
116
An element is
considered to be materially distinct if it requires proof of a fact not required
by the other oVence. In articulating the approach, the tribunals have relied
heavily on the Blockburger decision of the Supreme Court of the United
States.
117
The ICTY Appeals Chamber has conceded that the test is deceptively
simple, and that [i]n practice, it is diYcult to apply in a way that is
115
Delalic et al. (IT-96-21-A), Separate and Dissenting Opinion of Judge David Hunt and
Judge Mohamed Bennouna, 20 February 2001, para. 23. These views were endorsed by a
unanimous Appeals Chamber in Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002,
para. 169.
116
Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369370. Also: Delalic
et al. (IT-96-21-A), Judgment, 20 February 2001, para. 412; Kordic et al. (IT-95-14/2-A),
Judgment, 17 December 2004, para. 1032; Kunarac et al. (IT-96-23/1-A), Judgment, 12
June 2002, para. 168; Jelisic (IT-95-10-A), Judgment, 5 July 2001, para. 82; Kupres kic
et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, paras. 387388.
117
Blockburger v. United States, 284 US 299, 304 (1931) (The applicable rule is that, where
the same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two oVenses or only one is whether
each provision requires proof of an additional fact which the other does not.).
434 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
conceptually coherent and promotes the interests of justice.
118
Trial Chambers
have treated the test with caution, and tended to view it as overly broad. In
Stakic , an ICTY Trial Chamber said: While this Chamber feels bound by the
decisions of the Appeals Chamber, it favours the further limitation of cumu-
lative convictions. The guiding principle in these circumstances would be for
the Chamber, in the exercise of its discretion, to convict only in relation to the
crime that most closely and most comprehensively reects the totality of the
accuseds criminal conduct.
119
In Strugar, a case involving war crimes only, the accused was subject to
conviction for murder, cruel treatment and attacks on civilians for the same
criminal act. Murder and cruel treatment were, on a theoretical basis, con-
sidered to be materially distinct, the oVence of murder requiring proof of
death, and the oVence of cruel treatment requiring proof of mental or physical
suVering or injury, or constituting a serious attack on human dignity. How-
ever, because murder and cruel treatment did not contain an element in
addition to the elements of attacks on civilians, and because the oVence of
attacks on civilians contained an additional element, namely an attack, the
Trial Chamber concluded that it was the more specic provision. It entered a
conviction on the count of attacks on civilians, and dismissed the other two
charges.
120
Similarly, the Trial Chamber found that three other war crimes,
devastation not justied by military necessity, unlawful attacks on civilian
objects, and destruction or wilful damage of cultural property, also contained
materially distinct elements. But because the oVence of destruction of cultural
property directly and comprehensively reected the criminal act, in the
particular circumstances of the criminal act, the Trial Chamber dismissed
the other two charges.
121
In principle, cumulative convictions have been allowed for crimes against
humanity and war crimes, for crimes against humanity and genocide, and for
genocide and war crimes. The Appeals Chambers have consistently held that
crimes against humanity are distinct from war crimes because the two cate-
gories contain distinct elements.
122
War crimes, of course, require both the
existence of an armed conict and a nexus between the acts of the individual
and the armed conict. Neither crimes against humanity nor genocide require
118
Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 172. Also: Semanza (ICTR-
97-20-T), Separate and Dissenting Opinion of Judge Pavel Dolenc, 15 May 2003,
para. 13.
119
Stakic (IT-97-24-T), Judgment, 31 July 2003, para. 870.
120
Strugar (IT-01-42), Judgment, 31 January 2005, para. 449.
121
Ibid., para. 454.
122
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 388; Jelisic
(IT-95-10-A), Judgment, 5 July 2001, para. 82; Kunarac et al. (IT-96-23/1-A), Judgment,
12 June 2002, para. 176; Vasiljevic (IT-98-32-A), Judgment, 25 February 2004, para. 145.
T R I A L A N D P O S T- T R I A L P R O C E D U R E 435
a nexus with armed conict, but both have other distinct elements that set
them apart from war crimes.
In practice, however, the distinction seems overly mechanistic. There are
overarching similarities between war crimes and crimes against humanity, and
even the terminology is often largely similar. It seems excessive to allow
cumulative convictions for the grave breach of inhuman treatment and the
crime against humanity of other inhumane acts. Similarly, is it right to allow
cumulative convictions for the grave breach of unlawful connement and the
crime against humanity of imprisonment?
With respect to cumulative convictions for genocide and crimes against
humanity, there is much authority for the proposition that genocide is an
aggravated form of crimes against humanity.
123
But it has been held that
convictions for both genocide and for crimes against humanity are permitted
because they have materially distinct elements.
124
In Musema, the ICTR
Appeals Chamber held that convictions for genocide under article 2 and for
extermination as a crime against humanity under article 3, based on the same
set of facts, are permissible.
125
According to the Appeals Chamber, genocide
requires proof of intent to destroy, in whole or in part, a national, ethnic,
racial or religious group, whereas the crime against humanity of extermina-
tion requires proof that the crime was committed as part of a widespread or
systematic attack on a civilian population.
126
The ICTY Appeals Chamber
upheld and developed this conclusion in Krstic , overturning the Trial Cham-
ber that had refused to enter cumulative convictions for genocide and crimes
against humanity because it considered that both require that the killings
be part of an extensive plan to kill a substantial part of a civilian popula-
tion.
127
The Appeals Chamber said that such an extensive plan had been held
not to constitute an element of either genocide or crimes against humanity.
Moreover, according to the Appeals Chamber, genocide need not be com-
mitted as part of a widespread or systematic attack, nor must genocide be
limited to a civilian population.
128
There is inevitable overlap in the various categories of war crimes. To the
extent that meaningful distinctions may be made between the broad categories
of genocide, crimes against humanity and war crimes, this is not nearly as
123
For the various authorities, see: William A. Schabas, Genocide in International Law: The
Crime of Crimes, Cambridge: Cambridge University Press, 2000, at p. 11.
124
Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369370; Ntakiruti-
mana et al. (ICTR-96-10 and ICTR-96-17-T), Judgment, 21 February 2003, para. 864;
Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1090.
125
Musema (ICTR-96-13-A), Judgment, 16 November 2001, paras. 369370.
126
Ibid., para. 366.
127
Krstic (IT-98-33-T), Judgment, 2 August 2001, paras. 219227; Kayishema et al. (ICTR-
95-1-T), Judgment and Sentence, 21 May 1999, paras. 577578, 590.
128
Krstic (IT-98-33-A), Judgment, 19 April 2004, paras. 219227.
436 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
evident within the diVerent categories of war crimes, even if they are dened
in separate provisions that reect diVerent sources. It is noteworthy that under
the Rome Statute of the International Criminal Court, grave breaches of the
Geneva Conventions, violations of the laws or customs of war, and serious
violations of common article 3 and Protocol II are all grouped within a single
article.
129
Under the ICTY Statute an accused may be prosecuted for both the
grave breach of wilful killing, under article 2(a), and the war crime of murder,
under article 3. The Appeals Chamber has said a conviction for both is
impermissible, under the cumulative convictions rule, declaring that in such
a case the accused should be found guilty of the grave breach because it is the
more specic provision. In eVect, while both are war crimes, a grave breach
requires that the victim be a protected person, something that is not an
element of murder as a violation of the laws or customs of war.
130
The situation is perhaps more complex with respect to so-called intra-
article cumulative oVences. Three of the punishable acts of genocide, namely,
killing, causing bodily or mental harm, and imposing conditions of life
calculated to destroy the group, are closely related. Cumulative convictions
have been entered with respect to conspiracy to commit genocide, genocide,
and direct and public incitement to commit genocide.
131
The punishable acts of crimes against humanity encompass quite distinct
crimes, such as murder, deportation and imprisonment, as well as the appar-
ently more generic oVences of persecution and other inhumane acts. On
several occasions, the ICTY Appeals Chamber has held that where an accused
is convicted of the crime against humanity of murder, he or she cannot also be
found guilty of persecution.
132
It has also ruled that cumulative convictions
for persecution and other inhumane acts are impermissible, since the crime
of persecution in the form of inhumane acts subsumes the crime against
humanity of inhumane acts.
133
In Kordic and C
erkez, for example, Judge May said that even if the illegality
was established . . . [w]e have come to the conclusion that the evidence
obtained . . . by eavesdropping on an enemys telephone calls during the
course of a war is certainly not within the conduct which is referred to in
Rule 95. Its not antithetical to and certainly would not seriously damage
the integrity of the proceedings.
43
In Brdanin, an ICTY Trial Chamber said
that communications intercepted during an armed conict are not as such
subject to exclusion under Rule 95 and should therefore be admitted upon a
challenge based on the grounds laid down in that Rule.
44
But evidence obtained when a suspect was interrogated by Austrian police,
prior to him being handed over to ICTY custody, was excluded by a Trial
Chamber in C
elebic i because the accused had not been informed of his right
to counsel.
45
The Trial Chamber admitted statements that the accused Mucic
made in a subsequent set of interviews with the Austrian police, after he had
been properly advised of his rights,
46
and this was upheld on appeal.
47
Lacunae in the Rules
The sweeping powers
48
authorised by common Rule 89(B) allow that [i]n
cases not otherwise provided for in this Section, a Chamber shall apply rules
of evidence which will best favour a fair determination of the matter before
it and are consonant with the spirit of the Statute and the general principles
41
Miranda v. Arizona, 384 US 436 (1966). A more nuanced approach is taken in Canada:
Canadian Charter of Rights and Freedoms, s. 24(2).
42
Brdanin (IT-99-36-T), Decision on the Defence Objection to Intercept Evidence, 3
October 2003, para. 54.
43
Kordic et al. (IT-95-14/2-T), Oral Decision of Judge May, 2 February 2000, Transcript,
pp. 1369313694.
44
Brdanin (IT-99-36-T), Decision on the Defence Objection to Intercept Evidence, 3
October 2003, para. 53.
45
Delalic et al. (IT-96-21-T), Decision on Zdravko Mucics Motion for the Exclusion of
Evidence, 2 September 1997.
46
Delalic et al. (IT-96-21-T), Decision on the Motion ex parte by the Defence of Zdravko
Mucic Concerning the Issue of a Subpoena to an Interpreter, 8 July 1997.
47
Delalic et al. (IT-96-21-A), Judgment, 20 February 2001, paras. 528564.
48
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 322.
460 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
of law. This amounts to a general authorisation to judges to devise eviden-
tiary rules in the absence of an applicable provision in the Rules. It is de-
signed for situations where there is a genuine lacuna in the Rules, that is,
where no guidance is given by those sources.
49
Common Rule 89(B) has been
invoked to support the view that the basic rule is to allow exibility and
eYcacy. The RPE are broader than the evidentiary regimes in both the
common and civil law systems and they reect an international amalgamated
system without necessarily adopting a single national system of evidence.
50
Aside from some very general references to common Rule 89(B), as being
part of the general law applicable to proceedings, the provision has been
invoked to resolve practical issues of evidence on only a few occasions. In
Kupres kic , for example, an ICTY Trial Chamber relied on the provision in
ordering the Prosecution and defence not to communicate with a witness after
he or she has taken the solemn declaration and commenced testifying, unless
authorised. According to the Trial Chamber, a witness, either for the Pro-
secution or Defence, once he or she has taken the Solemn Declaration
pursuant to Rule 90(B) of the Rules of Procedure and Evidence, is a witness
of truth before the Tribunal and, inasmuch as he or she is required to
contribute to the establishment of the truth, not strictly a witness for either
party.
51
An ICTR Trial Chamber applied Rule 89(B) when the defence sought leave
to call witnesses in rejoinder, to respond to new evidence presented by the
Prosecutor in rebuttal. The Trial Chamber found no guidance in the Rules as
to when rejoinder evidence should be allowed. It applied the rules of the
common law, holding that rejoinder evidence should only be allowed in
relation to unanticipated issues newly raised in rebuttal. The Prosecutor had
in fact presented new evidence in rebuttal to respond to a previously unan-
nounced alibi defence. The Trial Chamber rejected the request of the
defence.
52
In Rutaganda, defence counsel objected that expert witnesses were heard
without rst determining, in an adversarial debate, whether or not they were
in fact properly qualied. Under the common law system, expert testimony
would normally be authorised only following a special hearing, known as a
voir dire, in order to determine whether in fact they should be allowed to take
the stand and give opinion evidence. After noting that the Rules lay down a
specic procedure for admitting an expert witnesss report without hearing
49
Vasiljevic (IT-98-32-T), Judgment, 29 November 2002, para. 11.
50
Bagosora et al. (ICTR-96-7-T), Decision on the Defence Motion for Pre-determination of
Rules of Evidence, 8 July 1998.
51
Kupres kic et al. (IT-95-16-T), Decision on Communication Between the Parties and
their Witnesses, 21 September 1998.
52
Semanza (ICTR-97-20-T), Decision on Defence Motion for Leave to Call Rejoinder
Witnesses, 30 April 2002.
E V I D E N C E 461
the witness, the Appeals Chamber observed that they do not require a voir dire
examination of the person called as an expert.
In the instant case, the Trial Chamber clearly chose an approach that
consists in having the qualications of the persons called as experts by
the Prosecution claried during their examination-in-chief by the Prose-
cution and cross-examination by Counsel for the Appellant. This amounts
to admitting the witness statement before having ruled on the admission
of the witness as an expert. The Appeals Chamber considers that, where
the Rules are silent as to the procedure for taking expert evidence at the
hearing, and in accordance with the provisions of Rule 89(B) of the Rules,
this approach does not appear to be contrary to the spirit of the Statute
and the general principles of law, and was such as would permit a fair
determination of the case.
53
Where a particular subject is dealt with in the Rules, but a potential aspect
or modality of it has been omitted, the proper construction is that that aspect
or modality is prohibited; a Chamber is not at large to act creatively on the
basis of Rule 89(B).
54
For example, the Prosecutor has attempted to rely on
Rule 89(B) in order to expand the judicial notice provisions of Rule 94. She
has argued, unsuccessfully, that where Rule 94 does not allow the court to
take judicial notice of certain facts, this may be accomplished by applying the
general rule in Rule 89(B).
55
Defence counsel have countered that where there
is a special rule in the RPE, Rule 89(B) is not applicable.
56
In a general sense, the ICTY Appeals Chamber has seemed hesitant to rely
upon the norm set out in Rule 89(B), preferring to base itself on a doctrine of
inherent jurisdiction.
57
In several cases, after concluding that there is no
applicable provision in the RPE, the tribunals have crafted an applicable
principle but without any reference to common Rule 89(B).
58
The ICTY
Appeals Chamber has cautioned that [a] Trial Chambers exercise of discre-
tion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with
the Statute and the other Rules to the greatest extent possible.
59
The ICTY
53
Rutaganda (ICTR-96-3-A), Judgment, 26 May 2003, para. 164.
54
Aleksovski (IT-95-14/1-AR73), Dissenting Opinion of Judge Patrick Robinson, 16 Feb-
ruary 1999, para. 22.
55
Nyiramasuhuko et al. (ICTR-97-21-T), Decision on the Prosecutors Motion for Judicial
Notice and Admission of Evidence, 15 May 2000, paras. 13, 35, 140.
56
Ibid., para. 23.
57
Tadic (IT-94-1-A), Judgment, 15 July 1999, para. 322.
58
Naletilic et al. (IT-98-34-PT), Decision on the Request of the Accused to be Given the
Opportunity to be Interrogated Under Application of a Polygraph, 27 November 2000;
Brdanin et al. (IT-99-36-AR73.9), Decision on Interlocutory Appeal, 11 December 2002,
para. 31.
59
Kordic et al. (IT-95-14/2-AR73.5), Decision on Appeal Regarding Statement of a
Deceased Witness, 21 July 2000.
462 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Appeals Chamber has criticised a Trial Chamber that found implicit support
for the application of national rules of evidence in the application of com-
mon Rule 89(B).
60
It conrmed that rules of evidence found in the Rules
should be primarily applied, with the assistance of national principles only
if necessary for guidance in the interpretation of such Rules.
61
There is
certainly a danger that Trial Chambers apply common Rule 89(B) as if it
constituted a carte blanche for improvisation.
62
Burden of proof
Guilt must be proven beyond reasonable doubt.
63
Although an amendment
specifying the reasonable doubt standard of proof was defeated during the
drafting of article 14 of the International Covenant on Civil and Political
Rights,
64
the Human Rights Committee has held this to be essential to the
right to a fair trial in criminal proceedings.
65
The Prosecutor must prove each
of the elements of a specic oVence beyond a reasonable doubt before there
can be a conviction. In C
eselj with his Defence, 9 May 2003. Investigators are considered part
of the defence team: Norman et al. (SCSL-04-14-T), Decision on Joint Motion by Sam
Hinga Norman, Moinina Fofana and Allieu Kondewa Seeking Permission for Defence
Investigators to Sit in Court During Closed Sessions, 28 February 2005.
260
Milos evic (IT-02-54-T), Reasons for Decision on Assignment of Defence Counsel, 22
September 2004; Milos evic (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the
Trial Chambers Decision on the Assignment of Defence Counsel, 1 November 2004.
Also: Milos evic (IT-02-54-T), Order on the Modalities to be Followed by Court Assigned
Counsel, 3 September 2004.
494 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
in special circumstances. The Trial Chamber rejected the claim, stating that
lack of access to information or material in the possession of the Registry
would frustrate the International Tribunal in the discharge of its fundamental
purpose.
261
In addition to lawyerclient privilege, the RPE recognise a privilege in
information which has been provided to the Prosecutor on a condential
basis and which has been used solely for the purpose of generating new
evidence. Such information as well as its origin cannot be disclosed by the
Prosecutor without the consent of the person or entity who provided the
information.
262
Similarly, notes taken by the prosecution in preparation of a
plea agreement are privileged, because they are internal documents made in
connection with the preparation of the case.
263
The RPE specify that reports,
memoranda, or other internal documents prepared by a party, its assistants
or representatives in connection with the investigation or preparation of the
case, are not subject to disclosure,
264
but presumably the principle also applies
to their compellability at trial.
Some non-codied privileges have been recognised in the cases. In an ex
parte decision,
265
an ICTY Trial Chamber determined that the International
Committee of the Red Cross was entitled to invoke privilege with respect to
information it had collected in the course of its work. A former employee of
the ICRC could not testify unless the organisation were to waive its privi-
lege.
266
Similarly, the Appeals Chamber recognised a partial or qualied
privilege with respect to war correspondents, in recognition of their important
role during armed conict. It said that evidence from a war correspondent
may only be compelled if it is directly relevant and cannot be obtained
elsewhere.
267
261
Simic et al. (IT-95-9-R77), Order for Limited Access to Registry Files, 1 November 1999.
262
ICTY RPE, Rule 70(B); ICTR RPE, Rule 70(B); SCSL RPE, Rule 70(B).
263
Blagojevic et al. (IT-02-60-T), Decision on Vidoje Blagojevics Expedited Motion to
Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused
Nikolic and Request for an Expedited Open Session Hearing, 13 June 2003.
264
ICTY RPE, Rule 70(A); ICTR RPE, Rule 70(A); SCSL RPE, Rule 70(A).
265
The decision can be considered to have been subsequently endorsed by the Appeals
Chamber: Brdanin et al. (IT-99-36-AR73.9), Decision on Interlocutory Appeal, 11
December 2002, para. 32.
266
Simic et al. (IT-95-9-PT), Decision on the Prosecution Motion Under Rule 73 for a
Ruling Concerning the Testimony of a Witness, 27 July 1999. The principle was subse-
quently endorsed by the Assembly of States Parties of the International Criminal Court.
See Rules of Procedure and Evidence, ICC-ASP/1/3, p. 10, Rule 71. See also: Stephane
Jeannet, Non-disclosure of Evidence before International Criminal Tribunals: Recent
Development Regarding the International Committee of the Red Cross, (2001) 50
International and Comparative Law Quarterly 643.
267
Brdanin et al. (IT-99-36-A), Decision on Motion to Set Aside Condential Subpoena to
Give Evidence, 15 December 2002.
E V I D E N C E 495
But no methodology for identifying other privileges has been determined.
The International Criminal Court RPE establish a three-part test in deter-
mining whether to recognise privileges other than the lawyerclient privilege
and the ICRC privilege, which are dened in the text. First, privileged com-
munications must be made in the course of a condential relationship pro-
ducing a reasonable expectation of privacy and non-disclosure. Second,
condentiality must be essential to the nature and type of relationship
between the person and the condant. Third, recognition of the privilege
should further the objectives of the Statute and the Rules.
268
On this basis,
privilege between patient and physician or therapist might be recognised,
269
although it seems more doubtful that the Court would uphold a privilege
between priest and confessor.
Judicial deliberations and observations in relation to matters upon which
the judges of the Tribunal are required to adjudicate may not be the subject
of compelled evidence before the Tribunal. The Appeals Chamber noted that
those persons cannot be subpoenaed to testify as witnesses in the matter at
issue since their work, which is integral to the operation of the Tribunal, must
be protected by condentiality.
270
Evidence in cases of sexual assault
Special provisions appear in the RPE concerning evidence in cases of sexual
assault.
271
They correspond to progressive developments in the criminal law
in certain jurisdictions, and are intended to counteract a variety of abuses
and stereotypes that have long hampered the eVective prosecution of such
crimes.
272
They deal with three issues that arise particularly in the case of
268
Rules of Procedure and Evidence, ICC-ASP/1/3, p. 10, Rule 73.
269
See the critical comments of Kelly Dawn Askin with respect to the Trial Chambers order
to produce medical records of a rape victim in the Furundzija case. Kelly Dawn Askin,
Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals:
Current Status, (1999) 93 American Journal of International Law 97, at pp. 112113.
270
Delalic et al. (IT-96-21-A), Decision on Motion to Preserve and Provide Evidence, 22
April 1999.
271
ICTY RPE, Rule 96; ICTR RPE, Rule 96; SCSL RPE, Rule 96. The provisions in the ICTY
and ICTR Rules are very similar. The SCSL judges made substantial modications to
the existing models in adopting a dramatically revised Rule 96. The ICTYand ICTR text
begins with the words In cases of sexual assault . . . , whereas SCSL Rule 96 begins: In
cases of sexual violence, the Court shall be guided by and, where appropriate, apply
the following principles . . . The SCSL RPE provision follows Rule 70 of the ICC RPE. It
is not yet evident whether the SCSL will be less rigorous in applying Rule 96 as a result.
272
Joseph L. Falvey, Jr, United Nations Justice or Military Justice: Which is the Oxymoron?
An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the
Former Yugoslavia, (1995) 19 Fordham International Law Journal 475, at pp. 521527;
Christin B. Coan, Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the
496 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
sexual assault prosecutions: corroboration of the victims testimony, the
defence of consent, and evidence of prior sexual conduct.
Under the common law, judges often instructed juries that it was unwise to
convict for rape on the basis of the uncorroborated testimony of the victim.
273
This reected archaic stereotypes about sexual assault, and has been largely
abandoned in modern practice, often as a result of statutory provisions
prohibiting judges from even making such suggestions in their charge to the
jury. Before the international tribunals, no corroboration of a victims testi-
mony is required in cases of sexual assault.
274
In any case, it is well established
in the case law of the tribunals that corroboration is not required, as a general
rule.
275
Kelly Askin has observed that during wartime situations, it is extre-
mely unlikely that corroborative evidence, such as semen, blood, and other
physical or medical evidence, will be available as supporting evidence.
276
In
Tadic , an ICTY Trial Chamber said the provision accords to the testimony of
a victim of sexual assault the same presumption of reliability as the testimony
of victims of other crimes, something which had long been denied to victims
of sexual assault in common law.
277
The ICTYand ICTR Rules also establish that consent shall not be allowed as
a defence in a case of sexual assault if the victim has been subjected to or
threatened with or has had reason to fear violence, duress, detention or
psychological oppression, or reasonably believed that if the victim did not
submit, another might be so subjected, threatened or put in fear.
278
The
International Criminal Tribunal for the Former Yugoslavia, (2000) 26 North Carolina
Journal of International Law and Commercial Regulation 183, at pp. 213217; Daniel
D. Ntanda Nsereko, Rules of Procedure and Evidence of the International Tribunal for
the Former Yugoslavia, (1994) 5 Criminal Law Forum 507.
273
Richard J. Goldstone, Prosecuting Rape as a War Crime, (2002) 34 Case Western Reserve
Journal of International Law 277, at pp. 283284.
274
ICTY RPE, Rule 96(i); ICTR RPE, Rule 96(i). SCSL Rule 96 is silent on this subject,
perhaps because the judges realised that if there was no requirement of corroboration
generally, there was no need to insert a special provision.
275
See above at pp. 484485. The ICTY and ICTR Rules set out as an exception to this
general principle the case of unsworn testimony of a child. See: ICTY RPE, Rule 90(B);
ICTR RPE, Rule 90(C). The ICTR Rule 96(i) takes this into account, specifying that [n]
otwithstanding Rule 90 (C), no corroboration of the victims testimony shall be
required. See also ICC Rule 63(4): a Chamber shall not impose a legal requirement
that corroboration is required in order to prove any crime within the jurisdiction of the
Court, in particular, crimes of sexual violence . . ..
276
Askin, Sexual Violence at p. 111, n. 70.
277
Tadic (IT-94-1-T), Opinion and Judgment, 7 May 1997, paras. 535539. Also: Akayesu
(ICTR-96-4-T), Judgment, 2 September 1998, para. 133; Musema (ICTR-96-13-T),
Judgment and Sentence, 27 January 2000, para. 45; Rutaganda (ICTR-96-3-T), Judg-
ment and Sentence, 6 December 1999, para. 18; Delalic et al. (IT-96-21-A), Judgment, 20
February 2001, paras. 504505.
278
ICTY RPE, Rule 96(ii); ICTR RPE, Rule 96(ii); SCSL RPE, Rule 96(i)(iii). The initial
version of the ICTY Rules stated simply that consent was not a defence in cases of sexual
E V I D E N C E 497
Furundzija Trial Chamber held that any form of captivity vitiates consent.
279
In Kunarac, an ICTY Trial Chamber criticised ICTY Rule 96 as being incon-
sistent with traditional legal understandings of the concept of consent in rape.
It said that in national legal systems where consent is an aspect of the
denition of rape, it is the absence of consent that is an element of the crime.
The use of the word defence, which in its technical sense carries an
implication of the shifting of the burden of proof to the accused, is incon-
sistent with this understanding, said the Trial Chamber. The point, it seems, is
that the accused need not prove that there is consent; rather, the Prosecutor
must prove the absence of consent, although this will generally be rather
obvious in the circumstances of a trial for sexual assault.
280
Consistent with
Kunarac, the SCSL Rules are formulated diVerently, although the eVect is
largely the same as in the ICTY and ICTR Rules. SCSL Rule 96 is actually
identical to the corresponding provision in the ICC RPE.
281
It declares that
consent cannot be inferred from words or conduct of the victim when there
is an oppressive or coercive context, or where the victim is incapable of giving
genuine consent, or by reason of the silence of or lack of resistance by the
victim.
The ICTY and ICTR Rules call for a special hearing or voir dire to be held
before evidence of the victims consent is admitted. The accused is required
to satisfy the Trial Chamber in camera that the evidence of consent is relevant
and credible.
282
The provision has been removed from the SCSL RPE.
283
Finally, the ICTYand ICTR Rules also prohibit the admission of evidence of
prior sexual conduct of the victim.
284
This is commonly known as a rape
shield provision, and has been adopted in many justice systems to prevent
oppressive cross-examination of victims of sexual assault. It responds to an
assault, but this clumsy wording had the inadvertent consequence of making all forms of
sexual activity illegal. In any case, these provisions are probably unnecessary, because
any consent obtained as a result of violence, duress or threats is not valid consent.
279
Furundzija (IT-95-17/1-T), Judgment, 10 December 1998, para. 271.
280
Kunarac et al. (IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 463.
For a somewhat diVerent view, see the remarks of the former Prosecutor, Richard
Goldstone: the burden of proof is placed very clearly on the defendant to establish
why, in that war situation, consent is at all relevant to the defense. Goldstone, Prose-
cuting Rape as a War Crime, at p. 284.
281
Rules of Procedure and Evidence, ICC-ASP/1/3, p. 10, Rule 70.
282
ICTY RPE, Rule 96(iii); ICTR RPE, Rule 96(iii).
283
It is also absent from the ICC RPE. The ICTY Appeals Chamber has stated that despite
the absence of any general provision for a voir dire in the RPE, it can be applied in
appropriate cases by Trial Chambers to determine admissibility of evidence. See: Delalic
et al. (IT-96-21-A), Judgment, 20 February 2001, para. 541. For an example: Bizimungu
et al. (ICTR-99-50-T), Oral Decision on Qualication of Prosecution Expert Jean
Rubaduka, 24 March 2004.
284
ICTY RPE, Rule 96(iii).
498 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
unfair stereotype by which a sexually active woman should be presumed to
have consented to the sexual activity which is the basis of the prosecution. The
fear of such inquiries often discourages rape victims from making criminal
complaints. When references were made during the C
igic.
294
The Appeals Chamber admitted evidence that Drago Josipovic
had participated in an attack of the same nature, in the same vicinity and
during the same time period as the acts charged, in order to establish a pattern
indicating guilt for the attack in Ahmici on 16 April 1993.
295
290
ICTY RPE, Rule 65 ter.
291
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 323. This is also
discussed in Kvoc ka et al. (IT-98-30/1-A), Judgment, 28 February 2005, paras. 357360,
451.
292
Galic (IT-98-29-T), Decision on the Motion for the Entry of Acquittal of the Accused
Stanislav Galic, 3 October 2002, fn. 1.
293
Kvoc ka et al. (IT-98-30/1-T), Judgment, 2 November 2001, paras. 547, 556.
294
Ibid., paras. 652, 663, 664.
295
Kupres kic et al. (IT-95-16-A), Appeal Judgment, 23 October 2001, para. 322.
500 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
13
Rights of the accused
During the Second World War, Churchill, Roosevelt and Stalin all entertained
it is diYcult to determine how seriously the idea of some form of
summary justice for major war criminals.
1
The concept now is unthinkable.
Indeed, only a few years later, one of the Nuremberg tribunals held that
prosecutors and judges involved in a trial lacking the fundamental guaran-
tees of fairness could be held responsible for crimes against humanity. Such
guarantees include the right of the accused to introduce evidence, to
confront witnesses, to present evidence, to be tried in public, to have
counsel of choice, and to be informed of the nature of the charges.
2
Common article 3 of the Geneva Conventions, adopted in 1949, refers to
the judicial guarantees which are recognized as indispensable by civilized
peoples and prohibits the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly consti-
tuted court, aVording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
3
It is axiomatic that the International Tribunal must fully respect interna-
tionally recognised standards regarding the rights of the accused at all stages of
its proceedings, said the Secretary-General in his report to the Security
Council accompanying the draft ICTY Statute.
4
The Secretary-General cited
article 14 of the International Covenant on Civil and Political Rights, the gold
1
Arieh J. Kochavi, Prelude to Nuremberg, Allied War Crimes Policy and the Question of
Punishment, Chapel Hill University of North Carolina Press, 1998, pp. 6391.
2
United States of America v. Alstotter et al. (Justice trial), (1948) 3 TWC1, 6 LRTWC 1, 14
ILR 278, at p. 97 (LRTWC).
3
Geneva Convention of August 12, 1949 for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, (1950) 75 UNTS 35; Geneva Conven-
tion of August 12, 1949 for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 81; Geneva Convention
of August 12, 1949 Relative to the Protection of Prisoners of War, (1950) 75 UNTS 135;
Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, (1950) 75
UNTS 287.
4
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolu-
tion 808 (1993), UN Doc. S/25704 (1993), para. 106.
501
standard in terms of codication of the right to a fair trial in international
human rights law.
5
A slightly modied version of article 14 appears in the
statutes of the three tribunals.
6
Moreover, several specic provisions of the
RPE, as well as norms of customary international law, complete the protection
of the accused before the tribunal.
7
For example, the tribunals are to exclude
evidence if its probative value is substantially outweighed by the need to
ensure a fair trial.
8
Where the fundamental rights of the defence are at issue, the tribunals have
not hesitated to go beyond the terms of the statutes and the Rules. For
example, in one case the defence asked for access to non-public materials in
ve other cases involving similar events, facts and issues. The Trial Chamber
observed that it had no jurisdiction to rule on measures adopted by another
Trial Chamber so long as that Trial Chamber was still seized of a case, and
moreover that the accused were not parties in the proceedings before the other
Trial Chamber. Nevertheless, it said that procedural relief must therefore be
found for the Defence which will permit the merits of the motion to be
considered. The Trial Chamber requested the Trial Chambers seized of three
of the other cases concerned to review . . . the relevant issues raised in the
Motion in the manner they deem most appropriate and further requested
that they indicate whether in their opinion the Trial Chamber could grant the
motion, and if so, whether special conditions of condentiality and protective
measures might be required.
9
In another case, the Prosecutor had been asked to provide the defence with
an inventory of personal items taken from the accused at the time of arrest.
Noting that no such obligation was imposed upon the Prosecutor by either
the Statute or the Rules, the Trial Chamber said that the spirit of Rule 5,
which requires parties to comply with general principles of fairness, coupled
with the internationally recognised practice of providing inventories dur-
ing seizure, meant that the lacuna did not justify the Prosecutors decision
not to provide such an inventory.
10
But trial chambers have resisted sugges-
tions that they improvise procedures for clarication or reconsideration,
11
5
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171.
6
ICTY Statute, art. 21; ICTR Statute, art. 20; SCSL Statute, art. 17.
7
See, e.g., First Annual Report of the ICTY, UN Doc. A/49/342-S/1994/1007, annex,
paras. 2226.
8
ICTY RPE, Rule 89(D). Also: ICTY RPE, Rule 70(G); ICTR RPE, Rule 70(F); SCSL RPE,
Rules 70(F), 95.
9
Kordic et al. (IT-95-14/2-PT), Decision on the Motion of the Accused for Access to Non-
Public Materials in the Lasva Valley and Related Cases, 12 November 1998.
10
Ruggiu (ICTR 97-32-I), Decision on the Defence Motion for Restitution of Personal
EVects, 7 July 1998.
11
Kovac evic (IT-97-24-PT), Decision on Defence Motion to Reconsider, 30 June 1998,
preambular para. 2.
502 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
or that they allow appeals from judgments for which none are specically
allowed.
12
Yet in many respects the tribunals have been far from exemplary with
regard to the rights of the accused. In one of the very rst rulings of the ICTY
Trial Chamber, dealing with authorisation of anonymous testimony, two
judges said that [t]he International Tribunal is, in certain respects, compar-
able to a military tribunal, which often has limited rights of due process.
13
Some of the weaknesses in this respect are attributable to the special circum-
stances that exist in international criminal prosecution, and may be unavoid-
able under the circumstances. The inherently political dimension of the
process, the pressures from governments as well as from civil society, and
the impetus to complete the process and shut down the tribunals are all
factors that contribute to this diYcult environment.
Rights of the suspect
In one area, the law of the tribunals goes considerably further than what is
required by international human rights law. The international human rights
treaties do not make any provision for suspects, except to the extent that a
suspect may be detained, in which case norms concerning ill treatment
become applicable.
In the course of an investigation by one of the tribunals, a suspect who is
questioned by the Prosecutor has the following rights:
i. to be assisted by counsel of the suspects choice or to be assigned legal
assistance without payment if the suspect does not have suYcient
means to pay for it;
ii. to have the free assistance of an interpreter if the suspect cannot
understand or speak the language to be used for questioning; and
iii. to remain silent, and to be cautioned that any statement the suspect
makes shall be recorded and may be used in evidence.
14
Any questioning shall be audio-recorded or video-recorded. According to
an ICTY Trial Chamber, the recording requirement was adopted in order to
have an authentic record of the questioning of a suspect or accused in order
to guarantee that the rights of the suspect or accused were respected during
such questioning as well as to provide a reliable record of the questioning as
12
Ntuyahaga (ICTR-98-40-A), Decision Rejecting Notice of Appeal, 3 June 1999.
13
Tadic (IT-94-1-T), Decision on the Prosecutors Motion Requesting Protective Measures
for Victims and Witnesses, 10 August 1995, para. 28. Along the same lines, see Kovac evic
(IT-97-24-AR73), Separate Opinion of Judge Shahabuddeen, 2 July 1998, p. 4.
14
ICTY RPE, Rule 42(A); ICTR RPE, Rule 43(A); SCSL RPE, Rule 43(A) (where the right
to counsel is expressed somewhat diVerently).
R I G H T S O F T H E A C C U S E D 503
everything that the suspect or accused says during the questioning can be used
against him as evidence.
15
Conrmation of the right to silence at the investigation stage, and the
requirement that the investigators inform the suspect of this right, means that
a suspect may quite simply refuse to cooperate with the Tribunals investiga-
tors. For this right to be eVective, the consequence must be that no adverse
inference at trial can be drawn from a suspects refusal to cooperate or to be
questioned. Nevertheless, cooperation with the Tribunal from the earliest
stage may well take on relevance as a mitigating factor in the event that the
suspect is later convicted.
A suspect may be detained for a short period, at the request of the
Prosecutor, prior to issuance of an indictment and formal arrest and transfer
to the seat of the Tribunal.
16
The statutes do not contain a provision analo-
gous to article 9(2) of the International Covenant on Civil and Political
Rights, stating that [a]nyone who is arrested shall be informed, at the time
of arrest, of the reasons for his arrest and shall be promptly informed of any
charges against him. However, the ICTR Appeals Chamber has held that such
a right exists. In Barayagwiza, it said that the suspects provisional detention
pursuant to Rule 40bis, from arrest on 15 April 1996 until 3 May 1996, when
he could be said to know the general nature of the charges against him,
amounted to a violation of the Appellants right to be informed without delay
of the charges against him.
17
The decision is also authority for existence of a
right of a suspect to apply to the Tribunal for relief, using a remedy analogous
to the writ of habeas corpus, in the event of a violation of fundamental rights
during provisional detention.
There is a confusion of responsibilities and something of a judicial limbo
when a suspect is detained provisionally. The Prosecutor is dependent upon
national authorities, who may not always have strong traditions of respect for
fundamental rights in the area of criminal justice. The ICTR Appeals Chamber
has spoken of the international division of labour in prosecuting crimes,
adding that it must not be to the detriment of the apprehended person.
18
Although no charges have been laid, the basis of detention is the combined
legal eVect of the Statute and Rules and the applicable national legislation.
A detained person probably has a remedy, in such cases, before international
human rights bodies such as the Human Rights Committee, the European
15
Blagojevic et al. (IT-02-60-T), Decision on Vidoje Blagojevics Expedited Motion to
Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused
Nikolic and Request for an Expedited Open Session Hearing, 13 June 2003.
16
ICTY RPE, Rule 40bis; ICTR RPE, Rule 40bis; SCSL RPE, Rule 40bis.
17
Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutors Request for Review or Recon-
sideration), 31 March 2000. Also: Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005,
paras. 226227.
18
Kajelijeli (ICTR-98-44A-A), Judgment, 23 May 2005, para. 220.
504 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Court of Human Rights or the African Commission of Human and Peoples
Rights, as well as before the international criminal tribunals.
The RPE set a maximum time period of ninety days for the provisional
detention of a suspect prior to being formally indicted, failing which the
accused is entitled to be released.
19
In Barayagwiza, the ICTR Appeals Cham-
ber treated a violation of the provision, in a case where the accused was held
for more than ninety days in Cameroon pending transfer to Arusha, to be not
only a violation of the Statute and the Rules, but also a violation of the
fundamental rights of the accused as set out in international human rights
treaties.
20
Once the accused has been brought to the seat of the court, he or
she is to be taken without delay before a judge who shall ensure that the
rights of the suspect are respected.
21
Independent and impartial tribunal
Article 14 of the International Covenant on Civil and Political Rights, on
which the fair trial provisions in the statutes are modelled, states that all
persons are entitled to trial before a competent, independent and impartial
tribunal established by law.
22
One of the adaptations of the fair trial provi-
sions in the statutes of the ad hoc tribunals is the removal of this requirement.
The deletion is not explained in the Secretary-Generals report, although it is
understandable, to the extent that the structure and establishment of the
ICTY, as expressed in the Statute, was deemed by the Secretary-General to
full this condition.
With respect to the judges themselves, the Secretary-Generals report said
they should be persons of high moral character, impartiality and integrity
who possess the qualications required in their respective countries for
appointment to the highest judicial oYces. Impartiality in this context
includes impartiality with respect to the acts falling within the competence
of the International Tribunal.
23
As for the Prosecutor, the Secretary-Generals
report speaks of an independent Prosecutor, and says [t]he Prosecutor
should act independently,
24
but makes no mention of impartiality.
19
ICTY RPE, Rule 40bis(D); ICTR RPE, Rule 40bis(C), (G), (H); SCSL RPE, Rule
40bis(H).
20
Barayagwiza (ICTR-97-19-AR72), Decision, 3 November 1999, para. 67.
21
ICTY RPE, Rule 40bis(F); SCSL RPE, Rule 40bis(J); SCSL RPE, Rule 40bis(J). Similarly,
ICTR RPE, Rule 44bis(D), (E); SCSL RPE, Rule 45(A)(i).
22
See generally, on the issue with respect to international judges: Ruth Mackenzie and
Philippe Sands, International Courts and Tribunals and the Independence of the Inter-
national Judge, (2003) 44 Harvard International Law Journal 271.
23
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), UN Doc. S/25704 (1993), para. 74.
24
Ibid., para. 85.
R I G H T S O F T H E A C C U S E D 505
International human rights law has distinguished between independence
and impartiality. While independence is desirable in and of itself, its impor-
tance really lies in the fact that it creates the conditions for impartiality.
25
This leads to a further distinction, between the objective and the subjective
dimensions of the norm. An individual judge or prosecutor may be above
reproach from the standpoint of impartiality, yet the conditions of appoint-
ment, remuneration and tenure may lead a reasonable person to suspect that
justice cannot be done. This is the objective test. Of course, in specic cases
there may well be evidence suggesting that a particular individual in specic
circumstances lacks impartiality. This possibility is specically contemplated
by the RPE, which call for disqualication in such cases.
26
The ICTY Appeals Chamber has described judicial impartiality thus:
[A] Judge should not only be subjectively free from bias, but also . . . there
should be nothing in the surrounding circumstances that objectively gives
rise to an appearance of bias. On this basis, the Appeals Chamber con-
siders that the following principles should direct it in interpreting and
applying the impartiality requirement of the Statute:
A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if:
i. a Judge is a party to the case, or has a nancial or proprietary
interest in the outcome of a case, or if the Judges decision will lead
to the promotion of a cause in which he or she is involved, together
with one of the parties. Under these circumstances, a Judges dis-
qualication from the case is automatic; or
ii. the circumstances would lead a reasonable observer, properly
informed, to reasonably apprehend bias.
27
One of the principal international instruments in this area is the Basic
Principles on the Independence of the Judiciary, which was adopted by the
Seventh United Nations Congress on the Prevention of Crime and the Treat-
ment of OVenders, in 1985, and subsequently endorsed by the United Nations
General Assembly.
28
It states that [p]ersons selected for judicial oYce shall
be individuals of integrity and ability with appropriate training or qualica-
tions in law.
29
The tribunals have been blessed with judges of the highest
quality, many of whom were already internationally recognised experts in
human rights, public international law and international humanitarian law.
25
The distinction between independence and impartiality is discussed at some length in
Norman (SCSL-04-14-AR72(E)), Separate Opinion of Justice GeoVrey Robertson, 13
March 2004, para. 2.
26
ICTY RPE, Rule 15(A); ICTR RPE, Rule 15(A); SCSL RPE, Rule 15(A).
27
Furundzija (IT-95-17/1-A), Judgment, 21 July 2000, para. 189.
28
Basic Principles on the Independence of the Judiciary, GA Res. 40/32, GA Res. 40/146.
29
Ibid., para. 10.
506 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
Quality control is built into the selection process for the ICTY and ICTR,
which involves approval of a list by the Security Council and then election in
the General Assembly. The curricula vitae of candidates are circulated publicly,
and scrutinised by Member States, as well as by vigilant international non-
governmental organisations. Nomination of an unqualied or inappropriate
candidate would lead to unbearable embarrassment for any State, and this
seems to have been an eVective deterrent. This is not to say that when States
vote in the General Assembly their choices are governed by the professional
qualications of the various candidates. While this may be relevant to some
delegations, election in the General Assembly is a brutal business, and many
political considerations that are irrelevant to the need for a high-quality bench
come into play.
The selection of judges for the SCSL is more questionable in this respect.
Judges are appointed, not elected, and the process of their selection is not
transparent. Of the eight judges, the Secretary-General of the United Nations
designates ve and the Government of Sierra Leone designates three.
30
At the
outset, the Secretary-General had sought to achieve a balance between
nationals and non-nationals, so that there would be an appropriate mix of
Sierra Leonean judges and international judges on the bench. The reference
was changed from Sierra Leonean judges to judges appointed by the Gov-
ernment of Sierra Leone at the request of the Government of Sierra Leone.
31
Although designation by the Secretary-General following a process that
lacks real transparency is not an ideal situation, it is unlikely that the prover-
bial reasonable person would be perturbed by the situation. The Secretary-
General is a person of great integrity who, moreover, appears to have no
particular interest except that justice of the highest quality be done. Would
that the same could be said of the Government of Sierra Leone. The President
of Sierra Leone initiated eVorts to establish the Tribunal, calling for an insti-
tution whose mandate it would be to prosecute his enemies, members of the
Revolutionary United Front.
32
Members of the Government of Sierra Leone,
including the President, participated in the conict over which the Tribunal
has jurisdiction. In fact, one of the accused was a minister in the Government
at the time of his arrest, as well as at the time the judges were initially
appointed, in July 2002. Without in any way impugning the actual imparti-
ality of the individual judges appointed by the Government, a reasonable
30
Agreement between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, art. 2(2);
SCSL Statute, art. 12(1).
31
Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, UN Doc. S/2000/915, p. 14, fn. 1.
32
Letter of 12 June 2000 from the President of Sierra Leone to the Secretary-General and
the Suggested Framework attached to it, UN Doc. S/2000/786, annex.
R I G H T S O F T H E A C C U S E D 507
person might well be uncomfortable with the entire process. The only judge
of the SCSL to be disqualied was a Government of Sierra Leone appointee.
The Appeals Chamber considered it improper for him to sit in trials with
Revolutionary United Front suspects because in a widely circulated book
which was in print at the time of his appointment he had expressed views on
the responsibility of the RUF and of its leaders for various atrocities.
33
The United Nations principles require that [t]he term of oYce of judges,
their independence, security, adequate remuneration, conditions of service,
pensions and the age of retirement shall be adequately secured by law.
34
The
situation in this respect is far from ideal. Judges at the ICTY and ICTR serve
terms of four years, subject to renewal, and judges at the SCSL serve terms of
only three years. Even if it is assumed that terms of international judges, by
their nature, are relatively short, a useful comparison can be made with the
International Criminal Court. It was precisely because of concerns about
independence and impartiality resulting from short terms, coupled with the
possibility of re-election, that the drafters of the Rome Statute set terms
of nine years with no possibility of re-election.
35
Re-election of judges of the
ad hoc tribunals is far from automatic, and several have failed to obtain a
second mandate, often compromising the part-heard trials in which they were
sitting. Why re-election is conned to one mandate is unclear. One judge has
said that in the interests of independence, judges on contracts should not
have them renewed more than once.
36
This observation is a useful one, but
why doesnt it apply to re-election altogether?
In the case of ad litem judges, who work essentially on a contractual basis,
they are elected for terms of four years, but can only sit for a maximum of
three years.
37
This very short term was set so that they would not become
eligible for United Nations retirement pensions. In fact, the ad litem judges
only work when the President of the Tribunal assigns them to a case. An ad
litem judge might well be concerned that an unpopular ruling would mean, in
eVect, that he or she would go to the bottom of the list, and be unlikely to be
assigned to an additional trial.
38
In 2005, the ICTY Statute was amended to
33
Sesay (SCSL-04-15-AR15), Decision on Defence Motion Seeking the Disqualication of
Justice Robertson from the Appeals Chamber, 13 March 2004.
34
Basic Principles on the Independence of the Judiciary, GA Res. 40/32, GA Res. 40/146,
annex, art. 11.
35
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 36(9)
(a).
36
Norman (SCSL-04-14-AR72(E)), Separate Opinion of Justice GeoVrey Robertson, 13
March 2004, para. 12.
37
ICTY Statute, art. 13ter(2), adopted pursuant to UN Doc. S/RES/1329 (2000).
38
Daryl A. Mundis, The Election of ad litem Judges and Other Recent Developments at
the International Criminal Tribunals, (2001) 14 Leiden Journal of International Law 851.
508 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
enable ad litem judges to stand for another term, making their independence
even more vulnerable.
39
Judges are remunerated at high international levels, and there can be
few complaints in this area. For judges from developed countries, the salaries
are certainly competitive with judicial remuneration at the national level.
For judges from developing countries, the international salaries are well
above the norm for national judges. Remuneration for the ICTY and ICTR
judges is drawn from the general funds of the United Nations, and is
relatively secure. Remuneration for SCSL judges is dependent upon the
resources of the SCSL itself, which are in fact rather precarious. The SCSL
is funded by voluntary contributions from Member States. When the Court
was being established, the Secretary-General was reluctant to proceed until
funds had been raised for at least three years of operations, but he later com-
promised. This situation was challenged unsuccessfully by one of the de-
fendants at the SCSL in a preliminary motion. The SCSL Appeals Chamber
said that
mere complaint about funding arrangements of a Court cannot by itself be
a ground for imputing a real likelihood of bias to a judge. What is material
and has to be established is that such funding arrangements are capable of
creating a real and reasonable apprehension in the mind of an average
person that the judge is not likely to be able to decide fairly.
40
The Appeals Chamber pointed out that the judges had secure contracts of
three years, and that the SCSL was liable for the amount. It described the
challenge as far-fetched and lacking any factual basis.
41
In an individual and
concurring opinion, Judge Robertson examined the funding arrangements in
some detail, noting the concern by the Secretary-General about the uncer-
tainty of funding. He cited the agreement establishing the Court, which said
that in the event voluntary contributions were insuYcient, the Secretary-
General and the Security Council would explore alternate means of nancing
the Court, taking this as an assurance that the Security Council accepts
continuing responsibility for the Court and will make up the balance should
voluntary contributions prove inadequate.
42
None of the three statutes addresses the issue of dismissal or removal of
judges. That this is important and relevant to judicial independence can be
seen from the Rome Statute, which makes clear provision for both the
39
UN Doc. S/RES/1597 (2005), amending art. 13ter(1)(e) of the ICTY Statute.
40
Norman (SCSL-04-14-AR72(E)), Decision on Preliminary Motion Based on Lack of
Jurisdiction (Judicial Independence), 13 March 2004, para. 30.
41
Ibid., para. 37.
42
Norman (SCSL-04-14-AR72(E)), Separate Opinion of Justice GeoVrey Robertson, 13
March 2004, para. 6.
R I G H T S O F T H E A C C U S E D 509
grounds of dismissal and the procedure to be employed.
43
Moreover, four
distinct provisions are devoted to the subject in the United Nations General
Principles.
44
The Rome Statute authorises removal of a judge for serious
misconduct or serious breach of duties, or when a judge is unable to exercise
his or her functions. Proceeding from the hypothesis that a judge at one of the
tribunals actually became unt but refused to resign, who would be respon-
sible for dismissal? Lack of clarity on this point is, in itself, a serious short-
coming and a threat to judicial inpendence and impartiality. It is important
for a judge to know what might constitutute suYcient grounds for removal
from oYce.
The issue of dismissal of judges has been raised before the ICTY, but not
decided. In a challenge, the defence argued that the Security Council, a
political body, had the authority to dismiss judges, but the Bureau replied
that there was nothing in the Statute to give this responsibility either to the
Security Council or to the General Assembly. According to Judge Shahabudd-
een, an argument that the Tribunal is a subsidiary organ of the Security
Council and that the latter could therefore act even without authorisation
from the Statute of the Tribunal and without rst amending it would collide
with the nature of the Tribunal: the latter was obviously intended to be
established, not as an advisory organ or a mere subordinate committee . . .
but as an independent and truly judicial body.
45
Judge Shahabuddeen
doubted whether the Plenary would have the power to remove a judge.
46
It
is probably a general principle of law that where no mechanism is established
to remove an oYce-holder, the authority for removal resides with the body
that appointed the oYce-holder. Removal of ICTY and ICTR judges by the
United Nations General Assembly, and removal of SCSL judges by the Secre-
tary-General, would probably not shock the ordinary person. The same
cannot be said about the three SCSL judges who are appointed by the
Government of Sierra Leone.
There have been several challenges to individual judges aimed at recusing
them from specic cases. The RPE allow for this in any case in which the
Judge has a personal interest or concerning which the Judge has or has had any
association which might aVect his or her impartiality. If the judge does not
43
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 46.
44
Basic Principles on the Independence of the Judiciary, GA Res. 40/32, GA Res. 40/146,
annex, arts. 1720.
45
Delalic et al. (IT-96-21-A), Declaration of Judge Shahabuddeen, 25 October 1999 (Judge
Shahabuddeen cited the EVect of Awards of Compensation made by the United Nations
Administrative Tribunal, Advisory Opinion, [1954] ICJ Reports 1954, p. 53).
46
Delalic et al. (IT-96-21-A), Decision of the Bureau on Motion to Disqualify Judges
Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25
October 1999.
510 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
voluntarily withdraw from the case, the Bureau is authorised to determine the
matter.
47
Defendants have also invoked, on appeal, an alleged lack of impartiality
manifested in the behaviour of the trial judges. Akayesu charged that Judge
Pillay had asked a witness about sexual violence committed at Taba (Any
report of incidence of rape that you have heard?), although nothing of the sort
had been alleged in the indictment. He said this showed she was not impartial
with regard to the specic issue of sexual violence committed at Taba. The
ICTR Appeals Chamber noted that the question was asked in a neutral tone,
just like all the other questions that Judge Pillay asked, and dismissed the
argument.
48
Judge Kama interrupted Akayesus counsel, during cross-examination of a
rape victim: Is that important? . . . She was raped so frequently that she can
no longer remember how often it was; 4, 5, 6, 7 times. Akayesus counsel
argued that this indicated he believed the witness, and sought to protect her
from questions that might have embarrassed her. The Appeals Chamber
considered that, in the context of the entire cross-examination, Judge Kama
was merely exercising the normal functions of a presiding judge.
49
Equality before the law
All persons shall be equal before the International Tribunal, the statutes
declare.
50
The right accrues to all persons, and not to all parties, as one
ICTR Trial Chamber has suggested.
51
Equality before the law should not be
confused with equality of arms, which is a principle of procedural fairness. In
the C
es elj. It said the trial was to continue as in the past, but with the presence
of the standby counsel. It is therefore left to the wise discretion of the Trial
Chamber to steer a careful course between allowing Milosevic to exercise his
fundamental right of self-representation and safeguarding the Tribunals basic
interest in a reasonably expeditious resolution of the cases before it, said the
Appeals Chamber.
152
149
Ibid., para. 66.
150
Milos evic (IT-02-54-AR73.7), Decision on Interlocutory Appeal of the Trial Chambers
Decision on the Assignment of Defence Counsel, 1 November 2004, para. 13.
151
Ibid., para. 14.
152
Ibid., para. 19.
530 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
The Trial Chamber of the SCSL has also considered the question of self-
representation.
153
Its judgment is the most extreme of the lot, and eVectively
reduces the right of self-representation to an ineVective platitude. Referring to
the formulation of the right of self-representation, the SCSL Trial Chamber
said that because article 17(4)(d) of the Statute spoke of the right to have legal
assistance assigned, this proved that the right to defend himself or herself in
person was only a qualied and not an absolute right. This is an extremely
weak argument, because assignment of legal assistance is a right of the
defendant, who can presumably decide to waive the right. The provision says
that an accused has two rights, one of self-representation and the other of
assigned counsel. But for the SCSL Trial Chamber, one plus one does not add
up to two. Unlike Milos evic , the SCSL defendant Hinga Norman had no
apparent medical problems, nor was he misbehaving in court. The judges
simply felt he was not up to the job of defending itself, adding that the
problems this might cause would also impact negatively on the right of the
other two defendants in the case to a speedy trial.
154
It would seem that all a
Prosecutor need do is prepare joint indictments in order to eVectively neu-
tralise the right to self-representation. Finally, the judges laid emphasis on the
time limited mandate of the Court,
155
a reference to the parsimonious
resources allocated by the United Nations. In the end, it seems that they
simply found the whole business of self-representation to be a big inconve-
nience. The Trial Chamber concluded, in a strikingly self-contradictory for-
mulation, that [t]he right to self-representation in this case . . . can only be
exercised with the assistance of Counsel.
156
Right to an interpreter
The accused is entitled to have the free assistance of an interpreter if he
cannot understand or speak the language used in the International Tribu-
nal.
157
The mother tongue of defendants at the tribunals is generally the
national or working language of their country: Serbian, Croatian or Bosniak
for the Yugoslav defendants, Kinyarwanda for the Rwandan defendants,
and Krio as well as a variety of regional languages for the Sierra Leonean
153
Norman et al. (SCSL-04-14-PT), Ruling on the Issue of Non-Appearance of the First
Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third
Accused, Allieu Kondewa at the Trial Proceedings, 1 October 2004, para. 23.
154
Norman et al. (SCSL-04-14-PT), Decision on the Application of Sam Hinga Norman for
Self-Representation Under Article 17(4)(d) of the Statute of the Special Court, 8 June
2004.
155
Ibid., para. 26.
156
Ibid., para. 32.
157
ICTY Statute, art. 21(4)(f); ICTR Statute, art. 20(4)(f); SCSL Statute, art. 17(4)(f).
R I G H T S O F T H E A C C U S E D 531
defendants. In practice, the proceedings are systematically translated into
these languages. The three Yugoslav languages are all mutually intelligible to
all citizens of the former Yugoslavia, and the tribunals have denied requests
of defendants that translators be provided in the specic dialect of Serbo-
Croatian that they may favour.
158
In addition, there is interpretation of the proceedings at the ICTY and
ICTR into the two oYcial languages of the tribunal, English and French.
Right to silence
The accused is entitled not to be compelled to testify against himself or to
confess guilt.
159
This means that from the earliest stage in the investigation,
a suspect or an accused need not speak to investigators or otherwise coop-
erate by providing information. The Rules impose an obligation to inform
a suspect, prior to questioning, and in a language the suspect speaks and
understands, of the right to remain silent, and to be cautioned that any
statement the suspect makes shall be recorded and may be used in evidence.
160
The issue has arisen in proceedings concerning provisional release, where
the Prosecutor has argued that the silence of the accused is a pejorative
factor militating against release. But Trial Chambers have said that the lack
of co-operation of an accused should not, as a rule, be taken into considera-
tion as a factor that might justify denying an application for provisional
release. According to an ICTY Trial Chamber, [t]he alternative would easily
result in infringement of the fundamental right of an accused to remain
silent.
161
Cooperation with the Prosecutor may be cited as a mitigating factor at the
sentencing stage, and to this extent there may be a price to be paid by an
accused for exercising the right to silence. However, Trial Chambers have
frequently insisted that the fact the accused does not plead guilty should
not be viewed as an aggravating factor, since an accused person has no
158
Delalic et al. (IT-96-21-T), Order on Zdravko Mucics Request for Serbo-Croatian
Interpretation, 23 June 1997; Krsmanovic (IT-96-19-Misc.1), Decision Concerning
Serbo-Croatian Interpretation, 29 March 1997.
159
ICTY Statute, art. 21(4)(g); ICTR Statute, art. 21(4)(g); SCSL Statute, art. 21(4)(g).
160
ICTY RPE, Rules 42(A)(iii), 63(B); ICTR RPE, Rules 42(A)(iii), 63(B); SCSL RPE, Rules
42(A)(iii), 63(B). For an application, see: Delalic et al. (IT-96-21-A), Judgment, 20
February 2001, para. 551.
161
Jokic et al. (IT-01-42-PT and IT-01-46-PT), Orders on Motions for Provisional Release,
20 February 2002. Also: Hadzihasanovic et al. (IT-01-47-PT), Decisions Granting Provi-
sional Release to Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, 9 December
2001, para. 15.
532 S U B S TA N T I V E A N D P R O C E D U R A L A S P E C T S O F P R O S E C U T I O N
obligation to do so and he has the right to remain silent should he choose that
course.
162
In Niyitegeka, an ICTR Trial Chamber wrote:
The Accused chose not to testify in his own defence in the present case.
The Defence made submissions concerning the right to remain silent and
the right not to testify. The Chamber is mindful of the Accuseds rights in
this regard and has not drawn any adverse inference in the present case.
163
In C
es elj (IT-03-67-AR73.2),
Decision on the Interlocutory Appeal Concerning the Denial of a Request for a Visit to
an Accused in the Detention Unit, 29 January 2004.
168
Second Annual Report of the ICTY, UN Doc. A/50/365-S/1995/728, annex, paras.
103104.
169
Fifth Annual Report of the ICTR, UN Doc. A/55/435-S/2000/927, annex, para. 102.
170
Fourth Annual Report of the ICTR, UN Doc. A/54/315-S/1999/943, annex, para. 92.
171
Norman et al. (SCSL-04-14-PT), Decision on Request by Samuel Hinga Norman for
Additional Resources to Prepare his Defence, 23 June 2004.
172
First Annual Report of the SCSL, p. 24.
173
Second Annual Report of the ICTY, UNDoc. A/50/365-S/1995/728, annex, paras. 28, 106;
Fourth Annual Report of the ICTR, UN Doc. A/54/315-S/1999/943, annex, para. 93.
610 O R G A N I S AT I O N O F T H E T R I B U N A L S
rights bodies, including the European Court of Human Rights, the United
Nations Human Rights Committee, the United Nations Committee Against
Torture and the European Committee for the Prevention of Torture. None
of these bodies has yet pronounced on whether or not it has any jurisdiction
with respect to conditions in the various facilities.
Some of the prisoners remain engaged in the political life of their countries.
On occasion, the Registrar has taken measures to restrict or curtail such
activities. For example, the SCSL Registrar limited the contact of one of the
Freetown detainees with the outside world, as a disciplinary sanction, when he
contacted local media without authorisation.
174
Similarly, from December
2003 to June 2004, the ICTY Registrar imposed restrictions on Vojislav
S
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