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Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity

Published online by Cambridge University Press:  27 February 2017

Larry D. Johnson
Larry D. Johnson*
Affiliation:
International Criminal Tribunal for the Former Yugoslavia
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American Journal of International Law , Volume 99 , Issue 1 , January 2005 , pp. 158 - 174
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Copyright © American Society of International Law 2004

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References

1 Daryl, A. Mundis, The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals, 99 AJIL 142 (2005)Google Scholar.

2 This Note focuses on the completion strategy of the ICTY.

3 Report on the Judicial Status of the International Criminal Tribunal for the Former Yugoslavia and the Prospects for Referring Certain Cases to National Courts, UN Doc. S/2002/678, enclosure [hereinafter Jorda Report].

4 According to the secretary-general’s 1993 report that set out the draft Statute of the ICTY7, as the Tribunal was to be an enforcement measure taken by the Security Council under Chapter VII of the Charter, “the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto.” Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 & Add. 1, para. 28 (1993) [hereinafter 1993 S-G Report].

5 At the time the Tribunal was established, the Security Council defined the ICTY’s temporal jurisdiction to cover the period between “1 January 1991 and a date to be determined by the Security Council upon the restoration of peace” in the territory. SC Res. 827, para. 2 (May 25, 1993). Sooner or later the Council will have to determine the ending date.

6 SC Res. 1503, pmbl. (Aug. 28, 2003).

7 Mundis, supra note 1, at 143.

8 Statement by the President of the Security Council, UN Doc. S/PRST/2002/21 [hereinafter 2002 Presidential Statement].

9 SC Res. 1503, supra note 6, pmbl. & para. 7.

10 SC Res. 1534, paras. 3, 4, 6, 7 (Mar. 26, 2004).

11 Statement by the President of the Security Council, UN Doc. S/PRST/2004/28 [hereinafter 2004 Presidential Statement].

12 For a discussion of issues surrounding the use of the “reverse veto,” see David, D. Caron, The legitimacy of the Collective Authority of the Security Council, 87 AJIL 552 (1993)Google Scholar.

13 UN Doc. S/PV.4999, at 8 (2004).

14 See Mundis, supra note 1, at 155-56.

15 Prosecutor v. Milošević, Appeal Decision on Admissibility of Written Statements, No. IT-02-54-AR73.4. para. 20 (Sept. 30, 2003).

16 UN Doc. S/PV.4999, supra note 13, at 8.

17 Id. at 5.

18 See id. at 4-10, 13-16.

19 UN Doc. S/2004/420, at 25 (including the ICTY president’s report to the Security Council as Enclosure I, at 2-22, and the ICTY prosecutor’s report as Enclosure II, at 40-48).

20 See, e.g., SC Res. 1534, supra note 10, para. 1 (calling, inter alia, on all states to cooperate with and assist ICTY in bringing those three indictees before the Tribunal).

21 UN Doc. S/2004/420, at 19, para. 75, & 47, para. 40. The representatives of France, the United Kingdom, and the United States echoed this position in their remarks in the Council on June 29, 2004. UN Doc. S/PV.4999, supra note 13, at 22, 23,27.

22 UN Doc. S/PV.4999, supra note 13, at 13.

23 UN Doc. S/2004/420, at 41, para. 13.

24 UN Doc. S/PV.4999, supra note 13, at 14.

25 Cassese, Antonio, The ICTY: A Living and Vital Reality, 2 J. Int’l Grim. L. [JICL] 585, 586, 595 (2004)Google Scholar.

26 Patricia, M. Wald, ICTY Judicial Proceedings: An Appraisal from Within, 2 JICL 466,468–69 (2004)Google Scholar; see also Jorda, Claude, The Major Hurdles and Accomplishments of the ICTY: What the ICC Can Learn from Them, 2 JICL 572, 576 Google Scholar; Schrag, Minna, Lessons Learned from ICTY Experience, 2 JICL 427, 430 Google Scholar. For a defense of the “pyramidal strategy,” see Piacente, Nicola, Importance of the Joint Criminal Enterprise Doctrine for the ICTY Prosecutorial Policy, 2 JICL 446,447–48 Google Scholar.

27 Arbour, Louise, The Crucial Years, 2 JICL 396, 398 (2004)Google Scholar.

28 Jorda Report, supra note 3, at 28, para. 83. President Jorda recalled that the prosecutor had informed the Council in 2001 that she had “since the beginning, directed her penal policy towards the prosecution of the most senior political and military figures, leaving the responsibility of trying the subordinates to the national courts.” Id. at 7, para. 11.

29 Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, annex (May 25, 1993), 32 ILM 1203 (1993), as amended by SC Res. 1166 (May 13, 1998), SC Res. 1329 (Nov. 30, 2000), SC Res. 1411 (May 17, 2002), SC Res. 1431 (Aug. 14, 2002), & SC Res. 1481 (May 19, 2003) [hereinafter Statute].

30 Jorda Report, supra note 3, at 14, para. 36. The report noted that the Nuremberg Charter had specified that the international tribunal it established was competent to effectuate the “just and prompt trial and punishment of the major war criminals of the European Axis.” Id. at 15 n.15.

31 Id. at 14, para. 36.

32 1993 S-G Report, supra note 4, Art. 9, Concurrent jurisdiction, paras. 64-65.

33 They might include, for example, the extent of the Tribunal’s power to refer cases to the national courts and prosecutorial authority to refer indictments of accused not in the custody of the Tribunal. Other proposals would be effected through changes in the ICTY Rules of Procedure and Evidence, “whether with or without an amendment of the Statute.” Jorda Report, supra note 3, at 16, para. 44; see id. at 14-17, paras. 35-44.

34 Id. at 28, para. 86.

35 2002 Presidential Statement, supra note 8.

36 SC Res. 1503, supra note 6, pmbl.

37 Id.; SC Res. 1534, supra note 10, para. 6; 2004 Presidential Statement, supra note 11.

38 The prosecutor has stated that

one should not fall into the trap of separating the accused into big fish and small fish. A number of the accused under investigation in the ICTY and the ICTR played a very nasty role somewhere in between these two extremes—as key organizers and motivators at the district or local level. They had strong links to the central power base and were fully aware of the overall criminal enterprise, but they also fervently put the plan into action in their areas and had blood on their own hands. In the former Yugoslavia, some of these individuals still occupy official functions, and their activities are an obstacle to the peace process.

UN Doc. S/PV.4429, at 9-10 (2001) (statement of Carla Del Ponte).

39 UN Doc. S/PV.4838, at 6 (2003). In reply to a question posed during the debate, President Meron elaborated that the directive of Resolution 1503 regarding the completion by the prosecutor of all investigations by the end of 2004 by concentrating on the prosecution and trial of the suspected most senior leaders was a matter of good faith interpretation by the Council and the prosecutor. Such interpretation was not, according to Resolution 1503, an appropriate judicial function. Id. at 30.

40 SC Res. 1534, supra note 10, para. 5.

41 ICTY, Rules of Procedure and Evidence, as amended, Doc. IT/32/Rev.32 (2004) [hereinafter Rules].

42 UN Doc. S/2004/420, at 9-10, paras. 32-33.

43 See Mundis, supra note 1, at 147-48.

44 UN Doc. S/2004/420, at 41, para. 13.

45 Mundis, supra note 1, at 148.

46 Examples of decisions of a procedural or managerial nature taken by the Council without formal amendment of the Statute of the ICTY or the ICTR include forwarding to the General Assembly the “short-list” of candidates for election to the Tribunal below the statutory minimum of candidates for submission, see SC Res. 1104 (Apr. 8, 1997); SC Res. 1340 (Feb. 8, 2001); SC Res. 1477 (Apr. 29, 2003), and extending the period for the nomination of judges beyond the statutory deadline for the submission of nominations, see UN Docs. S/l 998/646, S/l998/761, S/2001/63, S/2002/1131, S/2003/382.

47 UN Doc. S/PV.4999, supra note 13. Mundis offers only an unsubstantiated and speculative explanation cited in a press report and not attributed to an authoritative source. Mundis, supra note 1, at 148.

48 Mundis, supra note 1, at 148.

49 This point is correctly made by Mundis, id. at n.49.

50 Rome Statute of the International Criminal Court, July 17, 1998, Arts. 42(1), 17(l)(d), UN Doc. A/CONF. 183/9*, 37 ILM 999 (1998)Google ScholarPubMed, corrected through Jan. 16, 2002,’at <http://www.icc-cpi.int/>; Wald, supra note 26, at 469.

51 Mundis, supra note 1, at 148 n.49.

52 Theodor Meron, Procedural Evolution in the ICTY, 2 JICL 520, 522 (2004).

53 Statute, supra note 29, Arts. 16(2), 18(4).

54 The bureau consists of judges elected by their peers to leadership positions in chambers: the president, vice president, and presiding judges of the three trial chambers. The president “shall consult the other members of the Bureau on all major questions relating to the functioning of the Tribunal.” Rules, supra note 41, Rule 23(B).

55 Although the text of the resolution calls upon “each Tribunal” to ensure a certain result, it specifies that this is to be done “in reviewing and confirming any new indictments.” SC Res. 1534, supra note 10, para. 5. According to Article 19 of the Statute, only judges review and confirm indictments; the invitation could only be interpreted as being addressed to judges.

56 UN Doc. S/PV.4838, supra note 39, at 30.

57 UN Doc. S/PV.4999, supra note 13, at 21. The French representative concluded his comment on this point by stating that his country had recalled its commitment to this principle “at the time of the Council’s adoption of resolution 1534 (2004).” But what he was referring to is not readily apparent. At the meeting that adopted Resolution 1534 (Mar. 26, 2004), no comment was made by any representative. UN Doc. S/PV.4935 (2004). Rather, four days later the French permanent representative submitted a letter to the president of the Council, subsequently circulated as a Council document, stating with regard to Resolution 1534:

Following the adoption of this resolution, France wishes to make it clear that the need to respect the dates for completion of the work of ICTY and ICTR, as duly noted in resolution 1534 (2004), should not be construed as undermining the principle of independence of the two Tribunals and the separation of their functions, in accordance with the relevant provisions of their respective Statutes and Rules of Procedure and Evidence.

UN Doc. S/2004/265. The letter was not before the Council when it adopted Resolution 1534 and was not discussed in any Council meeting.

58 Mundis, supra note 1, at 149.

59 Interestingly, former judge Wald has noted the establishment of the Coordination Council, composed of the president, the prosecutor, and the registrar to air common problems of the three branches. She suggested:

An expansion of this concept to encompass discussion of the prosecutor’s overall priorities and the Judges’ reactions in terms of court concerns could prove useful (obviously, it should not include discussion of specific cases, ongoing or upcoming, although concluded cases could he used as examples of good and bad practices). . . . While the Prosecutor is still the ultimate decision-maker on whom and when to prosecute, she too might profit from discussion of her overall strategy and priorities.

Wald, supra note 26, at 470. She presumably did not consider that such a general discussion between the prosecutor and the judges on overall prosecutorial strategy and priorities would violate prosecutorial independence. Note also that President Meron established a Working Group on Scheduling of Cases composed of staff from chambers, the registry, and the Office of the Prosecutor, which reports regularly to the president regarding the progress of trials and the schedule of upcoming cases. UN Doc. S/2004/420, at 12, para. 42.

60 Prosecutor v. Milošević, Decision on Preliminary Motions, No. IT-99-37-PT, at 7, para. 15 (Nov. 8, 2001).

61 Goldstone, Richard, A View from the Prosecution, 2 JICL 380, 381 (2004)Google Scholar.

62 Cassese, supra note 25, at 586-87 (footnote omitted). Cassese also notes that on January 30, 1994, the judges met in plenary and adopted a statement subsequently made public calling into question the approach taken until then by the prosecutor, who aimed at low-level culprits rather than prosecute and punish those persons bearing major responsibility for the most appalling crimes perpetrated in the former Yugoslavia, which in their view was the mission of the ICTY as laid down in its Statute. Id. at 586 n.4.

63 Id. at 587-88.

64 Moreover, President Meron indicated in his June 2004 report to the Security Council that, as the prosecutor had repeatedly made assurances that all new indictments would meet the seniority criterion, the Rule 28(A) procedure was “likely to result in minimal delay in the confirming process.” UN Doc. S/2004/420, at 10, para.

65 Material in the possession of the prosecutor, such as that collected for nonindicted cases and that gathered with respect to individual alleged perpetrators, is excluded from the ambit of Rule 11 bis . Such material has never been the subject of judicial review and although cases derived from it are sometimes referred to loosely as cases “transferred” to domestic courts, they are not cases referred pursuant to Rule 11 bis. UN Doc. S/2004/420, at 44-45, para. 30.

66 Rules, supra note 41, Rule 11 bis (footnote omitted).

67 Prosecutor v. Ademi and Norac, Motion by the Prosecutor Under Rule 11 bis, No. IT-04-78-PT (Sept. 2, 2004).

68 Id., Order Appointing a Trial Chamber Under Rule 11 bis (Sept. 7, 2004).

69 See “The Criterion of Seniority” supra p. 162.

70 It is not clear what the position is of a state in which the accused voluntarily surrendered without an arrest. Similarly, are persons “surrendered” by a state to the ICTY under an extradition-type procedure considered “arrested”? See Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999).

71 See Reydams, Luc, Universal Jurisdiction: International and Municipal Legal Perspectives (2003)Google Scholar.

72 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616, para. 44.

73 UN Doc. S/PV.4999, supra note 13, at 5.

74 Mundis, supra note 1, at 150.

75 Rules, supra note 41, Rule 74.

76 Mundis, supra note 1, at 151-55.

77 Some of the criteria were listed with specific reference to Bosnia and Herzegovina and the Sarajevo War Crimes Chamber of its state court.

78 UN Doc. S/2002/678, at 28, para. 84.

79 Id. at 25, para. 73.

80 Id.,para. 72.

81 Id. at 19, para. 53.

82 Id., para. 54.

83 Id. at 25, para. 72.

84 Id. at 18, para. 48.

85 Id.

86 Id.

87 Id. at 19, para. 55.

88 Id. at 25, para. 72.

89 Id. n.26.

90 “Other important issues regarding domestic trials concern imperfect domestic legislation. For instance, the direct admissibility of ICTY cases and evidence is not provided for in the laws of all countries of the former Yugoslavia.” Carla Del, Ponte, Prosecuting the Individuals Bearing the Highest Level of Responsibility, 2 JICL 516,519 (2004)Google Scholar; see also Mundis, supra note 1, at 150-52.

91 UN Doc. S/2004/420, at 7-8.

92 UN Doc. S/PV.4999, supra note 13, at 6.

93 UN Doc. S/2004/420, at 46, para. 334.

94 UN Doc. S/PV.4999, supra note 13, at 7.

95 Id.

96 Mundis, supra note 1, at 156-57.

97 UN Doc. S/2004/53, annex, at 3.

98 2004 Presidential Statement, supra note 11.

99 Mundis, supra note 1, at 156.

100 UN Doc. S/2004/53, annex, at 4.

101 UN Doc. S/PV.4999, supra note 13, at 10; id. (Resumption 1), at 15.

102 Mundis, supra note 1, at 157.

103 The provisions in question read as follows:

(C) If, by reason of death, illness, resignation from the Tribunal, or non-reelection, a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the Presiding Judge shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of the accused, except as provided for in paragraph (D).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), the accused withholds his consent, the remaining Judges may nonetheless decide to continue the proceedings before a Trial Chamber with a substitute Judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. This decision is subject to appeal directly to a full bench of the Appeals Chamber by either party. If no appeal is taken or the Appeals Chamber affirms the decision of the Trial Chamber, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings. Only one substitution under this paragraph may be made.

Rules, supra note 41, Rule 15 bis.

104 UN Doc. S/PV.4999, supra note 13, at 10.

105 General Assembly, in Resumed Meeting, Elects 14 Judges to International Criminal Tribunal for Former Yugoslavia, UN Press Release GA/10302 (Nov. 19, 2004).

106 See, e.g., SC Res. 1482 (May 19, 2003); SC Res. 1126 (Aug. 27, 1997). This possibility is not mentioned by Mundis.

107 Past practice indicates that the Council has normally extended judges’ mandates for cases expected to finish within six months of the end of the nonreelected judges’ term of office. See the remarks of Adam Thomson, representative of the United Kingdom, and of ICTY president Theodor Meron on June 29, 2004, in the Security Council. UN Doc. S/PV.4999, supra note 13, at 23; id. (Resumption 1), at 15.

108 UN Doc. S/2004/53, annex, at 4.

109 The Security Council and the General Assembly will have to plan in other ways for the Tribunal to complete its mandate. Various functions assigned to the Tribunal in the Statute or Rules of Procedure will have to be assumed by some other body or mechanism decided upon by the appropriate United Nations organs. They include pardon and commutation under Article 28 of the Statute and review under Article 26. See UN Doc. S/2004/420, at 19-20. In addition, it might be necessary to examine whether a mechanism could take over the review and revocation procedures in Rule 11 bis. Finally, structural changes will have to be examined as the trial chambers cease functioning and the appeals chamber faces an influx of appeals.