¹ The Security Council created the Tribunal and adopted its Statute in Resolution 827 (S/RES/827(1993)), thus completing a process initiated in Resolution 808 (S/RES/808( 1993)).

² See, e.g., Wilkinson, Tracy, “Problems Outweigh Progress of UN Tribunal,” Los Angeles Times, (May 6, 1997)Google Scholar; Cerimag, Rasim, “Tried and Found Wanting,” The Tribunal, No. 8, (April/May 1997)Google Scholar; Abram, Morris, “Will War Criminals Escape Justice?,” Wall Street Journal (Apr. 11, 1997).Google Scholar

³ Madam Justice Louise Arbour, formerly of the Ontario Court of Appeal, assumed the position of Chief Prosecutor in October 1996.

⁴ Observers have noted that Arbour has been “stepping on toes … but … those toes needed stepping on” and “has been pulling every lever… to raise pressure on the villains in her sights”: Appleby, Timothy, “Tribunal Adopts Get-Tough Strategy,” Globe and Mail (Aug. 4, 1997)Google Scholar 1. See also Appelby, Timothy, “Ontario Judge Speeds War Crimes Arrests,” Globe and Mail (July 11, 1997)Google Scholar A1; Trueheart, Charles, “UN Prosecutor Sees Breakthrough in Arrest of Serb War Crime Suspects,” Washington Post (July 1, 1997) A12.Google Scholar

⁵ Tribunal, Press Release CC/PIO/221 (27 June 1997). Tribunal press releases may be found at <www.un.org/icty>.

⁶ This is the successor to the NATO Implementation Force (IFOR).

⁷ NATO, Press Release, “Statement by Secretary-General of NATO, Mr. Javier Solano on action by SFOR to detain indicted war criminals at Prijedor” (July 10, 1997); Fox, Robert, “Bosnian Swoop Indicates Change in NATO tactics,” Electronic Telegraph (July 11, 1997); Tribunal, Press Release CC/PIO/225 (July 10, 1997).Google Scholar

⁸ Rule 53 of the Rules of Procedure and Evidence (revised Oct. 20 and Nov. 12, 1997), “Non-disclosure” allows the judge confirming the indictment to issue a non-public indictment A challenge to the legality of the arrest was rejected by the Trial Chamber (Tribunal, Press Release CC/PIO/251 (Oct. 27, 1997) ) and by the Appeal Chamber (Tribunal, Press Release CC/PIO/260 (Nov. 12, 1997)). As noted by Chief Prosecutor Arbour, “there is nothing tricky about arresting people without giving them advance warning. That’s the way police forces operate all over the world.” Trueheart, supra note 4.

⁹ Cody, Edward, “U.S. Soldier in Bosnia Wounded in Sickle Attack,” Washington Post (July 17, 1997)Google Scholar; O’Connor, Mike, “Serbs Threaten NATO Soldiers,” Globe and Mail (July 17, 1997).Google Scholar

¹⁰ Walker, Tom, “NATO Targets Karadzic TV Link,” London Times (Aug. 22, 1997)Google Scholar; Wilkinson, Tracy, “Standoff in Bosnia: Karadzic Loyalists Trapped for Hours in Hotel,” Montreal Gazette (Sept. 10, 1997)Google Scholar B4; “Hardline Serbs Clash with NATO-led Troops,” Reuters (Sept. 24, 1997); Hedges, Chris, “NATO Troops in Bosnia Silence Karadzic’s Television Station,” New York Times (Oct. l, 1997)Google Scholar; Mackinnion, Angus, “NATO ’Tightening the Screw’ on Bosnian Serb Hardliners,” Agence France Presse (Oct. 1, 1997).Google Scholar

¹¹ Hedges, Chris, “Dutch Troops Seize Two War Crimes Suspects, Wounding One,” New York Times (Dec. 19, 1997)Google Scholar A20; Tribunal, Press Release CC/ PIO/277 (December 18, 1997).

¹² Tribunal, Press Release CC/PIO/203 (May 29,1997); Duranovic, Drasko, “The Tribunal Goes to the Coast,” The Tribunal, No. 10, Aug./Sept. 1997.Google Scholar

¹³ Tribunal, Press Release CC/PIO/185 (Apr. 28, 1997).

¹⁴ Corder, Mike, “Bosnian War Crimes Suspects Surrender,” Globe and Mail (Oct. 7. 1997).Google Scholar

¹⁵ With respect to six of the ten accused, the office of the prosecutor would be ready for trial within three to five months, but no such guarantee could be offered with respect to the others. In all cases, it is for the judges to set dates for trial and not the prosecutor: Tribunal, Press Release CC/PIO/246 (Oct. 6, 1997).

¹⁶ This figure dropped to nineteen when judges ordered the release of three individuals following a request by the prosecutor to withdraw the indictments due to lack of evidence: Tribunal, Press Release CC/PIO/279 (Dec. 19, 1997).

¹⁷ UNGA resolution 52/217, adopted by consensus Dec. 15, 1997, increased the Tribunal’s budget to $64 million U.S., an increase of approximately 33 per cent.

¹⁸ Discussed infra in the conclusion of this article.

¹⁹ Election of judges for the next four-year term took place in the General Assembly on May 20, 1997 (Tribunal, Press Release GC/PIO/197 (May 21, 1997)), with the new judges taking office on Nov. 17, 1997 (Tribunal, Press Release CC/PIO/261 (Nov. 12, 1997)). Judge Gabrielle Kirk McDonald was elected president of the Tribunal by her peers on Nov. 19 (Tribunal, Press Release CC/PIO/264 (Nov. 19, 1997)). Judges Sidwa and Li passed away during 1997 (Tribunal, Press Release CC/PIO/173 (Apr. 1, 1997) and CC/PIO/257 (Nov. 6, 1997) respectively), and Judge Jules Deschênes, a Canadian, retired on Apr. 18, 1997, for health reasons (Tribunal, Press Release CC/PIO/187 (Apr. 29, 1997)).

²⁰ The eleven judges of the Tribunal are divided into two Trial Chambers with three judges each, and an Appeals Chamber with five judges.

²¹ Case No. IT-94-1-T, May 7, 1997 [hereinafter Judgment]. Complete copies of all Tribunal decisions can be found at <http://www.un.org/icty/index.html>.

²² Pursuant to para. 2 of Art 9 of the Statute, the Tribunal has primacy over national courts and may request national courts to defer to the competence of the Tribunal.

²³ Appeals Chamber, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutors v. Dusko Tadic a/k/a “Dule”, “Case No. IT-94-1-AR72, Oct. 2, 1995 [hereinafter Tadic decision].

²⁴ Home, William, “The Real Trial of the Century,” American Lawyer available at <http://courttv.com/casefiles/warcrimes/reports/realtoc.html>).).>Google Scholar

²⁵ Statement delivered by Antonio Cassese, President of the Tribunal, to the UN General Assembly, Nov. 4, 1997 (available at <http://www.un.org/icty/spchg7e.htm>).

²⁶ The Judgment notes that, despite a history of atrocities and repression, the population of Bosnia and Herzegovina had been multi-ethnic for centuries and had enjoyed good intercommunal relations, friendships, and intermarriages in the post-Second World War era: supra note 21, paras. 56-–64.

²⁷ Pursuant to this policy, non-Serbs were subjected to persecution, beatings, destruction of property, and terror tactics, which eventually escalated into deportation, disappearances, confinement in concentration camps, and finally, liquidation. It must be kept in mind that although the Judgment focuses on atrocities committed by Bosnian Serbs, because these were the events relevant to the Tadic case, further atrocities committed by other groups will come to light in cases involving other defendants.

²⁸ Judgment, supra note 21 at para. 151. Many of the allegations against Tadic related to the Omarska camp, which was perhaps the most notorious of the camps. The Trial Chamber heard from 30 witnesses who survived the brutality of the conditions to which they were systematically subjected at Omarska (para. 157). When prisoners arrived by bus at Omarska, they were usually searched, robbed, and beaten (para. 158). Hundreds of prisoners were confined in small rooms, with prisoners “packed one on top of the other and often they had to lie in the midst of excrement”(para. 159). One meal a day was provided, consisting of a plate of watery potato soup and a small slice of bread, and prisoners were often beaten by guards as they came for the daily meal (para. 160). Prisoners were called out for interrogation, during which they would be severely beaten (para. 163). In the evening, members of paramilitary organizations and local Serbs were routinely allowed to enter the camps to abuse, beat, and kill prisoners. These groups would call out particular prisoners from their rooms and attack them with sticks, iron bars, or lengths of heavy electric cable. Nails and knives were also among the weapons used (para. 164). Women were routinely called out of their rooms at night and raped (para. 165). The “white house” was a place of particular horror, reserved for especially brutal treatment of selected prisoners. Prisoners who were forced to clean the area after beatings reported finding the blood, teeth, and skin of victims on the floor. Dead bodies of prisoners, lying in heaps, were often seen (para. 166).

²⁹ Ibid., paras. 38–51.

³⁰ Ibid., para. 434 The value of the shift records as alibi evidence was further undermined by the fact that the records were completed in advance (para. 50g) and there was no record of actual attendance (para. 277).

³¹ Ibid., para. 235–41.

³² Ibid., para. 240.

³³ Ibid., para 241. There was in fact more than one victim who was never seen again after that particular episode. Another victim had been beaten with an iron bar, had black liquid poured on him, and was cut by the accused with a knife “as one slices chops.” He was later seen lying on the hangar floor, with no signs of life. To confirm that he was dead, a guard put his foot on the victim’s neck, turned his head backwards and forwards, and then ordered prisoners to drag his body to and fro across the hangar floor. He was never seen or heard from again: ibid., para 238. Nevertheless, the Trial Chamber declined to infer that he was dead.

³⁴ Moreover, given the political climate in wich the Tribunal operates, it would be most inopportune to convict an accused for murder and have the murder victim turn up alive. This very situation has allegedly occurred in domestic proceedings, as two Serbs, Sretko Damjanovic and Borislav Herak, were repor-tedly convicted by the Bosnian government for the murder of two Muslims who were later found to be alive.

³⁵ See, e.g., Judgment, supra note 21 at paras. 235–37, 257–61, 279, 316, 435 and 448.

³⁶ See, e.g., ibid, at paras. 341, 366–75, 397, 455, and 461.

³⁷ E.g., one prisoner had been Tadic’s teacher in school, had helped Tadic gain access to the school gym for karate lessons, and his son had helped Tadic build his house and café: ibid., para. 414. Another victim had been a friend of the accused for five years before the conflict and had seen the accused regularly for business and social purposes: ibid., para. 440. One witness, Hase Icic, had known Tadic since school days and also went to school with, and played soccer with, Tadic’s brother. Icic was taken to a small room in the Omarska camp, where a noose was put around his neck. He stood face to face with Tadic before he was beaten unconscious by Tadic and others with cable, iron balls, an iron bar, a wooden bat, and rubber truncheons: ibid., para. 251–52.

³⁸ Ibid., para. 181.

³⁹ Stern, Leonard captures this bewilderment in “Judgment at The Hague,” Ottawa Citizen (Nov. 2, 1997)Google Scholar, where he reports the testimony of witnesses that one of Tadic’s victims was heard to plea, “Dule, brother, how have I wronged you?”

⁴⁰ The Trial Chamber also made several evidentiary and procedural rulings con cerning the specificity of charges, corroboration, hearsay evidence, identification evidence, the reliability of witnesses who were victims in the conflict, and the effect of pre-trial media coverage: Judgment, supra note 21 at Section 5, paras. 532–56. The approach of the Trial Chamber was to consider the practice of the major legal systems of the world and to develop a common-sense approach free from technicalities and consistent with the twin goals of fairness and truth-seeking. E.g., the Trial Chamber rejected the suggestion that the testimony of all victims in the conflict should be discarded as inherently unreliable, and instead ruled that the reliability of each witness should be assessed on a case-by-case basis: Judgment, ibid., para. 541. The rulings will be of interest in future Tribunal proceedings and may also establish a helpful precedent for the Rwanda Tribunal and the proposed International Criminal Court.

⁴¹ Art. 5 of the Statute defines crimes against humanity as “the following crimes when committed in an armed conflict, whether international or internal in character, and directed against any civilian population: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecution on political, racial and religious grounds; and other inhumane acts.”

⁴² Judgment, supra note 21 at para. 626.

⁴³ Supra note 23

⁴⁴ Ibid., paras. 140-42. Although a nexus requirement appeared in the Nuremberg Charter, it was not included in subsequent instruments such as Control Council Law No. 10, the Genocide Convention, or the Statute of the International Criminal Tribunal for Rwanda. The nexus requirement in the Nuremberg Charter arguably related to the jurisdiction of the Nuremberg Tribunal rather than the definition of crimes against humanity. On this topic, see Rikhof, Joseph, “Crimes against Humanity, Customary International Law and the International Tribunals for Bosnia and Rwanda” (1996) 6 N.J.C.L. 233Google Scholar, and O’Brien, James C., “The International Tribunal for Violations of International Humanitarian Law in the former Yugoslavia” (1993) 87 AJ.I.L. 639.Google Scholar

⁴⁵ Tadic (Jurisdiction) decision, supra note 23 at paras. 138–42.

⁴⁶ The framing of the proposition (the crime “must not be unrelated”) is significant because in most cases there will be many possible motives and it would be difficult to establish one predominant motive. Thus, the prosecution is relieved of the onerous burden of establishing a single predominant motive that was related to the armed conflict, and yet a “safety valve” is provided for those rare cases where there truly is no connection and the act is committed for purely personal motives. Such a flexible approach is all the more warranted when one recalls that customary international law would not have required any nexus at all.

⁴⁷ Judgment, supra note 21 at para. 648. The Trial Chamber clarified the term “civilian population,” noting that it means “predominantly civilian,” so that the presence of a few non-civilians (combatants or prisoners of war) does not change the character of the population: para. 638. The Trial Chamber also confirmed that non-state actors can perpetrate crimes against humanity: paras. 654-55. Finally, the Tribunal indicated, albeit in obiter, that a single act can constitute a crime against humanity, provided it is part of a widespread or systematic attack: para. 649.

⁴⁸ Ibid., paras. 656–57.

⁴⁹ [1994] 1 S.C.R. 701.

⁵⁰ Coder, Irwin, “War Crimes Law and the Finta Case” (1995) 6 Supreme Court L. Rev. 577Google Scholar; Matas, David, “The Case of Imre Finta” (1994) 43 Univ. of New Brunswick L.J. 281.Google Scholar

⁵¹ If an accused committed a spontaneous assault but was somehow unaware of the ongoing widespread or systematic attack, the accused would have the mens rea for the crime of assault but not for the much more serious offence of a crime against humanity. Fundamental justice requires a mental blameworthiness (mens rea) reflecting the particular nature of the crime.

⁵² Judgment, supra note 21 at para. 657; Finta, supra note 49 at 819. In the absence of an admission by the accused, this is generally how knowledge must be proven.

⁵³ Judgment, ibid., para. 657; Finta, ibid., 820.

⁵⁴ Judgment, ibid., para. 652.

⁵⁵ Ibid.

⁵⁶ Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (S/25704), presented May 3, 1993, at para. 48.

⁵⁷ See, e.g., Tadic (Jurisdiction) decision, supra note 23 at paras. 75, 88, and 143.

⁵⁸ The characterization of the conflict as international or non-international determines the applicability of Art. 2 of the Statute, “grave breaches of the Geneva Conventions of 1949.” An offence under Art. 2 of the Statute can only be established where the victim is a “protected person” under the 1949 Geneva Conventions, which is a person “in the hands of a party to the conflict… of which they are not nationals.” Thus, for the Bosnian Croats and Muslims to enjoy the status of “protected persons,” triggering the grave breaches regime and Art. 2 of the Statute, it must be shown that they were effectively in the hands of agents of another State—in this case, the Federal Republic of Yugoslavia (Serbia and Montenegro).

⁵⁹ Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Art. 2 of the Statute: Prosecutor v. Dusko Tadic a/k/a “Dule” case IT-94-1-7 [hereinafter McDonald Opinion].

⁶⁰ The JNA had formerly been the multi-ethnic national army for the former Yugoslavia, but in the early 1990s it was transformed from 35 per cent to 90 per cent ethnic Serbs through disbanding non-Serb units, recruiting ethnic Serbs, and encouraging non-Serbs to leave: Judgment, supra note 21 at paras. 106-109.

⁶¹ Ibid., paras. 581–82.

⁶² Ibid., paras. 114–21.

⁶³ See supra note 58.

⁶⁴ Judgment, supra note 21 at para. 587.

⁶⁵ Judges Stephen and Vohrah comprised the majority.

⁶⁶ Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA) (Merits), [1986] ICJRep 14. The ICJ concluded that proof of U.S. participation in the financing, organizing, training, supplying, and equipping of the contras was insufficient, since it was not proven that the U.S. had effective control of the operations. Likewise, the ICJ held that Nicaraguan assistance to rebels in Ecuador did not amount to armed attack.

⁶⁷ Judgment, supra note 21 at para. 588.

⁶⁸ Ibid., para. 605.

⁶⁹ Ibid., paras. 596–601.

⁷⁰ Ibid., para. 606.

⁷¹ McDonald Opinion, supra note 59 at para. 7.

⁷² Ibid., paras. 8-10. Other factors supporting McDonald’s position are that (1) the FRY essentially depleted its own army to establish the VRS (ibid., para. 14); (2) some officers had direct telephone lines between Belgrade and Pale, which were used in everyday communication (para. 8); (3) after its creation the VRS immediately carried out complex operations that had been planned by the JNA (para. 31); and (4), usually it would be illegal for JNA soldiers to serve any other force, yet service in the VRS was permitted: Judgment, supra note 21 at para. 594.

⁷³ The ICJ pronouncement that proof of funding, supplying arms, and providing logistic support to an armed band does not establish an armed attack has been rejected by many commentators and described as “flatly wrong as a principle of international law.” This “purported rule would have disastrous consequences” because it would “encourage secret aggressive attack through support for terrorists and guerillas and discourage effective defence in response”: Moore, John Norton, “The Nicaragua Case and the Deterioration of World Order” (1987) 81 A.J.I.L. 151 at 154–55Google Scholar. See also Hargrove, John Lawrence, “The Nicaragua Case and the Future of the Law of Force and Self Defence” (1987) 81 AJ.I.L. 135Google Scholar; Boyle, Francis A., “Determining U.S. Responsibility for Contra Operations under International Law” (1987) 81 A.J.I.L. 86Google Scholar; Dinstein, , War, Aggression and Self-Defence 190 (Cambridge: Grotius, 1988)Google Scholar; Dissenting Opinion of Judge Schwebel, Dissenting Opinion of Judge Sir Robert Jennings. A question can legitimately be raised whether the decision of the ICJ is inconsistent with the definition of aggression articulated by the General Assembly after decades of negotiation, which includes “the sending by, on, or behalf of a State of armed bands … which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or substantial involvement there in”: UN General Assembly Resolution 3314 (1974).

⁷⁴ Extensive reference to documents indicating that the FRY exercised operational command-and-control over Serbian forces in Bosnia are made by Paust, Jordan J., where he concludes that “outside intervention in several forms by neighboring nations has definitely internationalized the conflict”: “Applicability of International Criminal Law to Events in the former Yugoslavia” (1994) 9 Am. U. J. of Int’l. L. and Pol’y 499 at 507Google Scholar. James C. O’Brien, supra note 44 at 639 argues that, despite the ostensible withdrawal of the JNA, it would be wrong to say the conflict was internal, given the extensive use of proxy groups. Meron, Theodor, “War Crimes in Yugoslavia and the Development of International Law” (1994) 88 AJ.I.L. 78 at 81Google Scholar, warned that any attempt to apply the Nicaragua test to the conflict in Yugoslavia “would result in byzantine complexity, making prosecutions difficult and often impossible.” He argued that the “unacknowledged, but clear, intervention in the Bosnian conflict by Belgrade on behalf of the Serbs . . . could transform the conflict from internal to international even under classic principles of international law”: Meron, ibid., 81. See also Aldrich, George H., “Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia” (1996) 90 AJ.I.L. 64.Google Scholar

⁷⁵ In resolution 757 ( 1992), the Security Council condemned the failure of the FRY to comply with the requirements of resolution 752. Thus the Security Council did not believe that the restructuring of the forces amounted to a withdrawal.

⁷⁶ Grave breaches of the Geneva Conventions are crimes of universal jurisdiction punishable by any state. (The Tribunal has concurrent jurisdiction over grave breaches committed in the territory of the former Yugoslavia since 1991, but states may prosecute in the absence of a request for deferral from the Tribunal: Art. 9 of the Statute). Some states, notably Germany and the Netherlands, have therefore prosecuted persons alleged to have committed grave breaches during the conflict in the former Yugoslavia. For example, Novislav Djajic, a Bosnian Serb, was sentenced to five years of imprisonment by a German court in May 1 1997 for the murder of 14 Muslims. Although the material events occurred in Bosnia in June 1992, after the purported withdrawal of the FRY forces, the German court reached the opposite conclusion from that of the Trial Chamber, holding that the armed conflict was international in character.

⁷⁷ The Commission of Experts concluded that the entire conflict was an armed conflict of an international character: Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/25274. Gutman, Roy, “Federal Army Tied to Bosnia Crimes,” Newsday (Nov. 1, 1995)Google Scholar, quotes a U.S. defence source as saying that “they just changed shoulder patches,” and quotes Borisov Jovic, a top Milosevic aide, as admitting that the alleged “withdrawal” was a ruse to deflect western criticism.

⁷⁸ Gutman, Roy, “Confusion in War Crimes Case,” Newsday (May 13, 1997).Google Scholar

⁷⁹ Talamanca, Niccoló Figá, “A Blow to Human Rights,” The Tribunal, Vol. 9, June/ July 1997Google Scholar, criticizes the majority decision as “very disturbing” for international humanitarian law and inconsistent with customary law. The majority decision narrows the scope of the “grave breaches” regime and may therefore deter further prosecutions. The majority “set such a tough test for effective control that it would be almost impossible to hold States accountable for acts by their local agents,” thus allowing states “to violate the Conventions with impunity if they act outside their own territory through local agents.” “Many years of progress in human rights jurisprudence, establishing state accountability for torture or extrajudicial executions committed by para-military groups … would be reversed.”

⁸⁰ This would also be more consistent with the definition of aggression, supra note 73.

⁸¹ Wilkinson, Tracy, “Bosnian Serb Found Guilty of Crimes against Humanity,” Toronto Star (May 8, 1997)Google ScholarA2; See also Coulon, jocelyn, “Un jugement histori-que,” LeDevoir (May 8, 1997)Google Scholar A1; Klarin, Mirko, “The Tribunal Proves Itself,” The Tribunal, Vol. 9, June/July 1997Google Scholar. Reactions in the territory of the former Yugoslavia differed: Anastasijevic, Dejan, “Unimpressed in Belgrade,” The Tribunal, Vol. 9, June/July 1997Google Scholar; Cerimagic, Rasim, “Disappointment in Sarajevo, Paranoia in Pale,” The Tribunal, Vol. 9, June/July 1997.Google Scholar

⁸² Wilkinson, ibid.

⁸³ Tribunal, Press Release CC/PIO/208 (June 4, 1997).

⁸⁴ Tribunal, Press Release CC/P10/210 (June 9, 1997); See also Heim, Boris, “Louise Arbour critique la règle de preuve du TPI,” Le Devoir (June 10, 1997) A7.Google Scholar

⁸⁵ Sentencing Judgment, Prosecutor v. Dusko Tadic a/k/a “Dule, “ Trial Chamber, July 14, 1997, Case No. IT-94-1-T.

⁸⁶ Tribunal, Press Release CC/PIO/235 (Aug. 13, 1997).

⁸⁷ Judgment, The Prosecutor v. Draten Erdemovic, Case No. IT-96-22-A, Appeals Chamber, Oct. 7, 1997 [hereinafter Erdemovic Appeal].

⁸⁸ Sentencing Judgment, The Prosecutor v. Drazen Erdemovic, Case No. IT-90-22-T, Trial Chamber I, Nov. 29, 1996 [hereinafter Erdemovic Sentencing Judgment].

⁸⁹ Separate and dissenting Opinion of Judge Stephen, The Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Appeals Chamber, Oct. 7,1997. at paras. 3–11 [hereinafter Stephen Opinion],

⁹⁰ Erdemovic Appeal, supra note 87 at para. 7. As a further mitigating factor, it may be noted that he had a wife and a nine-month-old son.

⁹¹ Some commentators have questioned whether this sentence was too long, despite the severity of the crime, since this was a case with circumstances (age, duress, guilty plea, conviction based solely on voluntary statements) as favourable to the accused as possible. Thus a ten-year sentence under such circumstances could deter voluntary surrender by others.

⁹² Art. ao, para. 3, provides for the entry of a plea by the accused. Rule 62 contemplates a plea of guilty or not guilty, and in the case of a guilty plea, provides for the scheduling of a pre-sentencing hearing.

⁹³ Separate and Dissenting Opinion of Judge Cassese, The Prosecutor v. Drazen Erdemovic, Case No.IT-96-22-A, Appeals Chamber, Oct. 7, 1997 at para. 8 [hereinafter Cassese Opinion]; Separate and Dissenting Opinion of Judges McDonald and Vohrah, The Prosecutor v. Drazen Erdemovic, Case No. IT-96-aa-A, Appeals Chamber, Oct. 7, 1997 at para. 2 [hereinafter McDonald-Vohrah Opinion]. Judges McDonald and Vohrah also referred to the financial constraints of the United Nations, and Judge Cassese referred to the benefits to the accused of helping atone for his wrongdoing, avoiding the indignity and public exposure of a trial, and the expectation that the court will recognize his co-operative attitude.

⁹⁴ McDonald-Vohrah Opinion, ibid., para. 8; Cassese Opinion, ibid., para, 10; Stephen Opinion, supra note 89 at para. 5; Separate and Dissenting Opinion of Judge Li, The Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Appeals Chamber, Oct. 7, 1997 at paras. 10–27. [hereinafter Li Opinion].

⁹⁵ The different routes taken in the McDonald-Vohrah Opinion and the Cassese Opinion suggest a common law-civil law rivalry. The McDonald-Vohrah Opinion referred to the common law authorities as relevant material in the absence of other guidance on guilty pleas, and adopted a typical common law test. Judge Cassese strongly criticized the use of domestic law authorities, and, in particular, common law authorities, except as an extreme last resort. He then sought to derive an appropriate test from general principles and the spirit of the Statute, and, perhaps coincidentally, arrived at a test identical to that of Judges McDonald and Vohrah.

⁹⁶ Erdemovic Appeal, supra notre 87 at para. 20; McDonald-Vohrah Opinion, supra note 93 at para. 15.

⁹⁷ Li Opinion, supra note 94 at paras. 18-26. Judge Li persuasively argued that the gravity of a criminal act is determined by the intrinsic nature of the act itself and not by its classification under one category or another, since the harm done is exactly the same. Judges McDonald and Vohrah argued that crimes against humanity are intrinsically more serious because “humanity comes under attack,” that they make humanity a victim, and they consequently affect “each and every member of mankind.” However, this basis seems all too metaphysical and places exceptional reliance on the name of the crime. A better argument is the fact that crimes against humanity involve the widespread or systematic perpetration of odious crimes, and are therefore generally more serious because of their heinousness and magnitude. However, Judge Li points out that war crimes can be equally severe, and that the gravity of the offence must be judged on a case-by-case basis. In any event, the idea that crimes against humanity are intrinsically more serious than war crimes is now an article of faith in the Tribunal jurisprudence, and it is noteworthy that, in the sentencing of Dusko Tadic, more severe sentences were imposed for acts characterized as crimes against humanity than for war crimes.

⁹⁸ R. v. Finta, supra note 49.

⁹⁹ This is a sensible distinction, because it is easy to envisage a superior order without duress (e.g., where there is no threat of immediate death for failure to obey the order), and it is also easy to envisage a situation of duress without superior orders (e.g., where the recipient of the threat is not in a subordinate-superior relationship with the issuer of the threat). Finta is inconsistent with this approach, because “superior orders” and “duress” considerations appear to be conflated in that decision.

¹⁰⁰ por example, the Canadian Criminal Code, R.S.C. 1985, c. C-46, as amended, excludes the defence of “compulsion by threats” for the crimes of high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under ss. 280–330 (abduction and detention of young persons).

¹⁰¹ McDonald-Vohrah Opinion, supra note 93 at paras. 32–33; Li Opinion, supra note 94 at paras. 5–12.

¹⁰² McDonald-Vohrah Opinion, ibid., para 71, Li Opinion, ibid. at para. 7, quoting the common law commentaries of Hale and Blackstone.

¹⁰³ Notably the requirement of proportionality and the requirement that the person coerced does not knowingly enter into the situation of duress, e.g., by joining a unit known for violations of international humanitarian law.

¹⁰⁴ Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of July 18, 1997, The Prosecutors v. Tihomir Blaskic, Case No. IT-95-14-AR108bis, Oct. 29, 1997 [hereinafter Appeals Chamber Subpoena Judgment].

¹⁰⁵ Specifically, the Custodian of the Records of the Central Archives of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna.

¹⁰⁶ Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, The Prosecutors. Tihomir Blaskic, Case No. IT-95-14-PT, Trial Chamber II, July 18, 1997 [hereinafter Trial Chamber Subpoena decision]. The alert reader may have noted at this point that there is no apparent consistency in the Tribunal’s use of the terms “decision” and “judgment.”

¹⁰⁷ Decision on the Admissibility of the Request for Review by the Republic of Croatia of an Interlocutory Decision of a Trial Chamber (Issuance of Subpoenae Duces Tecum) and Scheduling Order, The Prosecutors v. Tihomir Blaskic, Case No. IT-95-14-AR108bis, July 29, 1997; and Decision on Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997, The Prosecutor v. Tihomir Blaskic, ibid, Aug. 12, 1997.

¹⁰⁸ In addition to the amicus curiae briefs submitted by governments, briefs were submitted by the Max Planck Institute for Foreign and International Criminal Law, Juristes sans frontières, and Alain Pellet, Ruth Wedgewood, Carol Elder Bruce, and Herwig Roggeman: Appeals Chamber Subpoena Judgment, supra note 104 at para. 17.

¹⁰⁹ O’Neill, Juliet, “In the Fight for International Justice,” Ottawa Citizen (Sept. 14, 1997) A9.Google Scholar

¹¹⁰ Arts. 2, 25, and 41 of the Charter of the United Nations.

¹¹¹ Appeals Chamber Subpoena Judgment, supra note 104 at para. 26.

¹¹² Ibid., para. 32.

¹¹³ Ibid., para. 33.

¹¹⁴ Ibid., paras. 21 and 25.

¹¹⁵ Trial Chamber Subpoena decision, supra note 106 at paras. 58–64.

¹¹⁶ The words of Juliet Capulet (William Shakespeare, Romeo and Juliet, Act II, Scene II) are apposite:

¹¹⁷ Appeals Chamber Subpoena Judgment, supra note 104 at para 41.

¹¹⁸ Ibid., para. 42.

¹¹⁹ The Appeals Chamber also described the practical difficulties that would otherwise arise. The Appeals Chamber noted that there are two hypothetical situations that could result in non-compliance: either (1) the state orders the official not to comply or (a) the state orders the official to comply but the official refuses. In the first situation, there would be little practical advantage in directing an order to the official who would be bound by the instructions of his government (ad impossibilia nemo tenetur). In the second situation, the state would be obliged to compel the official, through national legal remedies, to comply with the order. The Appeals Chamber left open the possibility that, in the event of a persistent refusal by a state official to comply despite the orders of his or her government, the official might be regarded as no longer a part of the state apparatus and treated like a private individual, subject to all the available remedies and sanctions.

¹²⁰ Such as the contempt power in Rule 77 of the Rules of Procedure and Evidence or the inherent contempt power of the Tribunal: Appeals Chamber Subpoena Judgment, supra note 104 at para. 48.

¹²¹ Ibid., paras. 46–51.

¹²² Ibid., paras. 57–60.

¹²³ Brief on Appeal of the Republic of Croatia in Opposition to Subpoenae Duces Tecum, at 59–64; Trial Chamber Subpoena decision, supra note 106 at paras. 108–110.

¹²⁴ Prosecutor’s Brief in Response to the Brief of the Republic of Croatia; Trial Chamber Subpoena decision, ibid, at para. 110.

¹²⁵ Appeals Chamber Subpoena Judgment, supra note 104 at paras. 64 and 65. The Appeals Chamber also observed that the crimes within the Tribunal’s jurisdiction are generally related to armed conflict and military operation, so military documents will often be of crucial importance if international criminal proceedings are not to be stultified.

¹²⁶ Ibid., para. 67.

¹²⁷ Ibid., paras. 67–69.

¹²⁸ Ibid., para. 68.

¹²⁹ Judge Karibi-White objected to this suggestion, since he believed the Statute did not permit the determination of such an issue by a single judge: Separate Opinion of Judge Adolphius G. Karibi-White, Case No. IT-95-14-AR 108bis. The Appeals Chamber also suggested an alternative streamlined procedure, where a state, acting bona fide, considers one or two documents to be of a sensitive nature and of scant relevance. In this limited circumstance, the responsible minister may simply submit a signed affidavit explaining the reasons for non-disclosure: Appeals Chamber Subpoena Judgment, supra note 104 at para. 68.

¹³⁰ Italy and Finland have signed agreements providing for the enforcement of sentences in their territories: Tribunal, Press Releases CC/PIO/154 (Feb. 6, 1997) and CC/PIO/ 192 (May 8, 1997). The United Kingdom has offered to finance the construction of an interim courtroom and also became the first state to agree to provide witness relocation assistance to the Tribunal: Tribunal, Press Releases CC/PIO/228 (July 17, 1997) and CC/PIO/258 (Nov. 7, 1997). The United States and the Netherlands have also offered to build an additional courtroom in response to the surge in the demands upon the Tribunal: Tribunal, Press Release CC/PIO/282 (Jan. 8, 1998).

¹³¹ The package of additional assistance included: ( 1 ) a financial contribution of $600,000, the majority for the exhumation of mass graves (for collection of evidence) and the remainder to help finance the construction of a much-needed additional courtroom; (2) the secondment of five crime analysts to assist in investigations; (3) a list of Canadians available for recruitment and who possess the expertise and qualifications most urgently needed by the Tribunal; and (4) the negotiation of an agreement providing for the relocation of witnesses in danger: McCabe, Aileen, “Canada Boosts Aid to War Crimes Probe,” Ottawa Citizen (Dec. 18, 1997)Google Scholar A12; “Le Canada Aide leTPI” Journal de Montréal (Dec. 18, 1997); Tribunal, Press Release CC/PIO/280 (Dec. 22, 1997).