1. The International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991 (hereinafter, the ICTY or the Tribunal) was founded and its Statute was enacted by Security Council Resolution 827/1993 of 25 May 1993. For the development of an international criminal court, see Bassiouni, M. C., ‘Introduction to the History of Establishing an International Criminal Court’, in International Criminal Law, part 3 (1986) p. 181 et seq.Google Scholar; Grebing, H., ‘Zur Frage der Schaffung eines Internationalen Gerichthofs’ [Problems Relating to Establishmemt of International Criminal Tribunal] in Goldtdammer, 's Archiv für strafrecht (1976) p. 97Google Scholar; and Bassiouni, M. C., ‘From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court’, 10 Harvard Human Rights Journal (1997) pp. 11–62Google Scholar.

2. See Bassiouni, M. C., ‘The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia’, 5 Criminal Law Forum (1994) pp. 279–340CrossRefGoogle Scholar.

3. See Attanasio, J.B., ‘Reporter's Overview and Conclusions: Of Soveignty, Globalisation and Court’, 28 Journal of International Law and Politics (1996)Google Scholar.

4. On the notion of jus cogens in international law, see extensively in Hannikaninen, L., Peremptory Norms (IUS COGENS) in International Law (Finnish Lawyers' Publishing Company, Helsinki 1988)Google Scholar.

5. The Emperor was granted asylum in the Netherlands and legal proceedings against him were never instituted. As no international criminal court existed, the procedure was entrusted to the Supreme Court in Leipzig. Due to various legal and actual obstacles and the disinterestedness of the victorious forces, this court punished only a small number of perpetrators of war crimes. See Krapac, D., Me∂dunarodni sud za ratne zločine na području bivše Jugoslavije [International War Crimes Tribunal for the Former Yugoslavia] (Hrvatski helsinški odbor i Hrvatski pravni centar, Zagreb 1995) p. 9Google Scholar.

6. Conflict between Finland and Russia in respect of the border in Eastern Karjala dates back to 1918 when Finnish troops failed to realise the idea of their political leaders concerning new borders with Russia. During World War II, conflict between Finland and Russia (then the USSR) developed in two phases. The first was the so-called ‘Winter War’ (1939–1940), when the USSR attacked Finland and, following three and a half months of war, managed to sign the Moscow Peace Accord and to make significant territorial gains. In 1941, Finland became a German ally and entered into war against the USSR in the hope of a quick success and recapture of the lost territory. The initial success of the Finnish army, which at first managed to regain the lost territory and to capture Eastern Karjala, finally turned to failure. In 1944, Finland admitted defeat in the Moscow Peace Treaty and undertook to try politicians responsible for the war. See Hannikainen, L. and Raija-Rosas, A., Implementing Humanitarian Law Applicable in Armed Conflicts: The Case of Finland (Martinus Nijhoff Publishers, Dordrecht 1992) pp. 41–48Google Scholar. See also Josipović, I., ‘The International Criminal Tribunal and the Croatian Legal System’, II Croatian International Relations Review (1996) pp. 2–3Google Scholar.

7. See Röling, B.V.A. and Cassese, A., The Tokyo Trial and Beyond (Polity Press, Cambridge 1993) pp. 1–6Google Scholar. There were several national criminal courts acting in the Far East. They are outside the scope of this article, which considers only international tribunals. E.g., see Pritchard, R.J., ‘The Gift of Clemency following British War Crimes Trials in the Far East, 1946–1948’, 7 Criminal Law Forum, No. 1 (1996) pp. 15–49CrossRefGoogle Scholar.

8. For details see: Bassiouni, M.C., A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (Martinus Nijhoff Publishers, Dordrecht 1987)Google Scholar; Bassiouni, M.C., Draft statute international criminal tribunal (Nouvelles études pénales, Toulouse, Eres 1992)Google Scholar.

9. Hereinafter, Rules.

10. Prosecutor v. Duško Tadić, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-T, 2 October 1995.

11. See Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-14-AR108 bis. See Malanczuk, infra at. p. 229.

12. Such an analysis is beyond the scope of this paper.

13. Art. 29 of the ICTY Statute provides ‘1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.

2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal.’

14. Information concerning laws of particular states and their English translations were obtained courtesy of the Registrar of the ICTY and reflects the situation as of 1 November 1997. A further source of information concerning the laws of some states was ‘State Cooperation Implementing Legislation,’ Update 1 November 1996, produced by the ICTY. For the sake of brevity, all laws shall be quoted in abbreviated form according to the state of origin. E.g., Italian Law, German Law, Austrian Law, etc. The Federal Republic of Yugoslavia has entered into a special agreement with the ICTY on operation of the Office of the Prosecutor of the ICTY on its territory. However this agreement cannot be considered implementing legislation.

15. International War Crimes Tribunals Act of 24 August 1995. Australian law is interesting as it applies not only to the ICTY but to all international war crimes tribunals. In addition, unlike the laws of other states, which regulate the matter rather superficially, mainly referring to analogous application of appropriate domestic legislation (procedures, extradition), Australian law is quite extensive and regulates the subject matter in detail in 83 elaborate articles.

16. Austrian Federal Law on Cooperation with the International Tribunals, effective as of 1 June 1996.

17. Projet de loi relative à la coopération judicarie avec le tribunal international pour l'ex-Yougoslavie et le tribunal international pour le Ruanda [Law on Recognition of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda and Cooperation with these Tribunals] of 1 February 1996, effective as of 22 March 1996.

18. The Government of the Republic of Bosnia and Herzegovina (the Assembly elected during pre-war elections was not active at that time) has enacted the Uredba sa zakonskom snagom o izručenju po molbi Me∂unarodnog suda [Decree with Force of Law on Deferral Upon Request by the International Tribunal], Službeni list BiH No. 12/1995 of 10 April 1995), and the Odluka o izražavanju spremnosti Republike Bosne i Hercegovine Savjetu sigurnosti UN-a oprihvatanju osoba osu∂enih presudama me∂unarodnog suda la ratne zločine na izdržavanje izrečenih kazni [Decision expressing readiness of the Republic of Bosnia and Herzegovina to accept persons sentenced by the International War Crimes Tribunal], Službeni list BiH No. 2/1995 of 15 January 1995. In addition, Bosnia and Herzegovina has entered into a special agreement of cooperation with the ICTY which merely enumerates obligations in accordance with the Statute and confirms the adherence of Bosnia and Herzegovina thereto.

19. Ustavni zakon o suradnji Republike Hrvatske s Me∂unarodnim kaznenim sudom [Constitutional Act on the Cooperation with the International Criminal Tribunal], Narodne novine No. 32/1996, hereinafter, the Constitutional Act. On the basis of the Constitutional Act, the Government of the Republic of Croatia has enacted the Uredba o uredu za suradnju s Me∂unarodnim kaznenim sudom [Decree About an Office for Cooperation with the International Criminal Tribunal], Narodne novine No. 61/1996.

20. Act XXXIX of 1996 on the fulfillment of obligations deriving from the Statute of the International Tribunal Established for Punishing the Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia. Available only in English.

21. Lov om straforolgning ved det Internationale tribunal til padommelse af krigsforbrydelser i det tidligere Jugoslavien [Act on Criminal Proceedings before the International Tribunal for the Prosecution of Persons Responsible for War Crimes Committed in the Territory of Former Yugoslavia] Act No. 1099 of 21 December 1994.

22. Laki entisen Jugoslavian alucella tehtyjä rikoksia käsittelevän sotarikostuomioistuimen toimivallasta ja tuomioistuimelle annettaviasta oikeusavusta [Act on Jurisdiction of the International Tribunal for the Prosecution of Persons Responsible for Crimes Committed in the Territory of the Former Yugoslavia and on Legal Assistance to the International Tribunal] 5 January 1994/12.

23. Loi no. 95–1 du 2 Janvier 1995 portant adaption de la législation française aux dispositions de la résolution 827 du Conseil de sécurité des Nations Unies instituant un tribunal international en vue de juter les personnes présumées responsable de violations graves du droit international humanitaire commises sur le territoire de l'ex-Yougoslavie depuis 1991 [Lawno. 95–1 of 2 January 1995 on adapting French law to the provisions of United Nations Security Council Resolution 827 establishing an International Tribunal for the Prosecution of Persons Responsible for Crimes Committed in the Territory of the Former Yugoslavia since 1991].

24. Gesetz über die Zusammenarbeit mit dem Intemationalen Strafgericht für das ehemalige Jugoslawien, Bundesgesetzblatt Nr. 18/1995, 31.3.1995 [Law on regulating the co-operation with the International Tribunal for the Former Yugoslavia of 31 March 1995].

25. Law enacted on 9 May 1994, English version not available.

26. Disposizioni in materia di cooperazione con il Tribunale internazionale competente per gravi violazioni del diritto umanitario commesse nei territori delta ex Jugoslavia [Provisions on Cooperation with the International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia] Decree-Law no. 544 of 28 December 1993 and no. 120 of 14 February 1994. Italy was the first state to enact an implementing law.

27. Wet van 21 april 1994, houdende bepalingen verband houdende met de instelling van het International Tribunaal voor de vervolging van personen aansprakelijk voor emstige schendingen van het intematiionale humanitaire recht, begaan op het grondgebied van het voormalige Joegoslaviën sedert 1991 [Provisions relating to the Establishment 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 Since 1991, of 21 April 1994].

28. The 1995 International War Crimes Tribunals Act.

29. Act relating to the incorporation into Norwegian law of UN SC Resolution on the establishment of an International Tribunal for Crimes committed in the former Yugoslavia of 1 June 1994. Available only in English.

30. 12552 Ley Orgánica 15/94, de l junto para la cooperación con el Tribunal International para el enjuiciamento de los presuntos responsables de violaciones graves del derecho international humanitario cometidas en el territoriao de la ex Yugoslavia, 2 junio 1994 [Act 15/1994 on cooperation with the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, Law of 2 June 1994].

31. Act relating to establishment of an International Tribunal for Trial of Crimes Committed in former Yugoslavia, of 1 June 1994. Available only in English.

32. Arréte fédéral relatif a la coopération avec les tribunaux internationaux chartésde poursuivre les violations graves du droit international humanitaire, 21 decembre 1995 [Federal Law on cooperation with International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, of 21 December 1995].

33. United Nations (International Tribunal) (Former Yugoslavia) Order 1996, entered into force on 15 March 1996.

34. On 5 October 1994, the USA signed with the ICTY ‘Agreement on the Surrender of Persons’, on the basis of which the US President signed the National Defense Authorization Act for Fiscal Year 1996 on 22 January 1996. Section 1342 of this Act is titled ‘Judicial Assistance to the International Tribunal for Yugoslavia and the International Tribunal for Rwanda’. The Agreement and the Act itself regulate only one of the required aspects of cooperation with the Tribunal. A decision of the United States District Court for the Southern District of Texas, Laredo Division (1997 US Dist. LEXIS 20714) of 17 December 1997 which shall be discussed below, completely overruled American implementation legislation.

35. The Model itself actually transcribes provisions of the Statute and the Rules and determines methods of communication with the ICTY through the Ministry of Foreign Affairs or the Ministry of Justice. Therefore, the Model does not require any specific elaboration short of remarking that, in respect of performance of obligation to surrender, it envisages control of the highest court in the state, but only in respect of formal requirements for surrender, without a right to decide on the merits (Art. 5, point 6 of the Model).

36. Austria; Belgium; Bosnia and Herzegovina; Croatia; Denmark; Finland; Germany; Italy; the Netherlands; Norway; Spain; Sweden; and Switzerland.

37. Bosnia and Herzegovina; Croatia; Denmark; Finland; Germany; Italy; The Netherlands; Norway; and Sweden. Two other states (Iran and Pakistan) which did not enact special implementing legislation did likewise. The ICTY enters into agreements on execution of prison sentences with individual states. Such agreements contain the same conditions as specified by the Rules. Some states have agreed to accept prisoners but with reservations. For example, Spain expressed her readiness to accept convicts as a matter of principle, but not at the present time (Letter dated 28 March 1995). Germany, Sweden and Switzerland are willing to accept their citizens only. Denmark shall decide on its readiness to accept a convict in each particular case, whereas Finland will accept a maximum of five convicts. Norway shall accept a limited number of convicts depending on ‘individual assessment in each particular case’. See State Cooperation Implementing Legislation, Update, 1 November 1996, edited by the ICTY, pp. 3–4. On the other hand, The Bahamas; Belarus; Belize; Burkina Faso; Ecuador; Liechtenstein; Malaysia; Poland; and Slovenia have explicitly indicated that they are not in a position to accept convicts in execution of prison sentences. Information according to Internet www page of the ICTY, Fact Sheet of 22 December 1997, http://www.un.org/icty/sublae.htm.

38. Agreement between the United Nations and the Kingdom of the Netherlands concerning 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 since 1991. Since the Agreement does not relate to the subject matter of criminal law and to implementation of rules enabling performance of obligations in respect of the ICTY, but to mutual rights and obligations originating from the fact that the Netherlands is the host state to the seat of the Tribunal, it shall not be discussed any further.

39. Certainly, other criteria for evaluation applicable to any legal system could also be applied (e.g., nomotechnical quality). However, they are not the subject of this paper. Bearing in mind the aim of this study, I shall limit myself to the above-mentioned basic criteria of evaluation. It should be remembered that Resolution 780 (1992) of 6. Oct. 1992, establishing the Commission of Experts, introduced certain obligations for states. As it does not relate directly to the work of the ICTY, and because Resolution 827, the Statute and the Rules include obligations specified in it, it shall not be further discussed.

40. For details see I. Josipović, ‘The International Criminal Tribunal and the Croatian Legal System’, op. cit. n. 6, at pp. 5–6.

41. Para. 4 of Resolution 827 and Art. 29(1) of the Statute.

42. Arts. 9 and 10 of die Statute; Arts. 9–13 of the Rules.

43. Art. 29(2) of the Statute.

44. It should be noted that the Prosecutor is an integral part of the Tribunal, an approach which can be faulted. Regardless of the fact that arrest, detention and surrender of accused persons to the ICTY are listed within the framework of provision of legal assistance, in this paper I shall deal with them separately from other forms of legal assistance, due to their specificities.

45. Rule 39(iii).

46. Rule 40: Provisional Measures and Rule 40 bis: Transfer and Provisional Detention of Suspects.

47. Pursuant to Rule 74, individuals and organizations can act as amici curiae. The first such appearance was during the Tadić case, when a representative of the German Government appeared before the ICTY to speak to the extradition of Tadić from Germany to the Tribunal. This representative explained the legal (im)possibility of extraditing Mr. Tadić from Germany prior to amendment of German legislation. As the Amicus Curiae explained, the decision of Trial Chamber I of the ICTY contained not only an order to Germany to surrender Mr. Tadić but also to undertake legislative, administrative and judicial measures in order to enable the surrender. See Decision of the Trial Chamber on the application by the prosecutor for a formal request for deferral to the competence of the International Criminal Tribunal for the Former Yugoslavia, Case No. IT-94–1-D of 8 November 1994.

48. Considering that this obligation does not refer directly to obligations of states to the ICTY as far as aspects of criminal procedure are concerned, I shall not deal with it in more detail in this paper.

49. Frequent amendment of the Rules — 12 by 12 November 1997 — clearly indicates initial incompleteness of the legal framework for adjudication before the ICTY. One of the major legal problems of the ICTY is the significant lack of regulation which not only necessitates frequent supplementation of the Rules, but jeopardizes legal certainty in respect of accused and other persons who appear before the ICTY in different roles.

50. So long as case-law in states which invoke application of their general rules mutatis mutandis does not exist or at least is not accessible to experts.

51. In the Tadić case, the Defense lodged an appeal challenging the jurisdiction of the ICTY based on, a) the illegal foundation of the ICTY, b) wrongful primacy of the ICTY over national courts, and c) lack of jurisdiction ratione materiae. The Appeal was rejected. See supra n. 10. See also ‘Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction’, 7 Criminal Law Forum (1996) pp. 51–138CrossRefGoogle Scholar.

52. Art. 9(2) of the Statute.

53. Art. 10(1) of the Statute.

54. Rule 13 of the Rules.

55. Art. 10 of the Statute.

56. Art. 10 ofthe Statute should, according to its substance, rather be titled ‘bis-in-idem’. There are no legal arguments in favor of setting aside the elementary and internationally recognized right of the accused not to be tried (to his or her detriment) for die same crime once again. This right is guaranteed by important international instruments such as the International Covenant on Civil and Political Rights, Article 14(7). However, the motivation for such a solution is clear and lies in the described distrust of the international community of the states involved in the armed conflict in the former Yugoslavia. The authors of the Statute estimated that the importance of punishing the perpetrators of war crimes outweighed, in a moral, political and strategic sense, the protection of the rights of accused persons.

57. Art. 10(a) of the Statute.

58. Art. 10(b) of the Statute.

59. Art. 29 of the Statute in relation to Rule 102 B.

60. Art. 24(3) of the Statute and Rules 105 and 106.

61. In the same article, the Italian legislators determined the procedure for recognition of judgements of the ICTY in accordance with Italian regulations, which is contrary to the Statute and to the spirit of Resolution 827. Namely, acceptance of judgments of the ICTY should be unconditional in all states.

62. The first request for deferral of jurisdiction was directed to Bosnia and Herzegovina in the procedure against Ratko Mladić, Radovan Karadžić and Mića Stanišić (Order of the Prosecutor of the ICTY No. IT-95–5-d of 24 April 1995). Surrender of Dusan Tadić from the Federal Republic of Germany was requested before commencement of the procedure in Germany. See supra n. 47.

63. See Krapac, D., ‘Elemanti prava mednarodne kaznenskopravne pomoèi’ [Basis of Judicial Assistence] in Bavcon, Lj., Mednarodno kaznensko pravo [International Criminal Law] (ÈZ Uradni list R Slovenije, Ljubljana 1997) p. 152Google Scholar.

64. Cf., Gallant, K.S., ‘Securing the Presence of Defendants before the International Tribunal for the Former Yugoslavia: Breaking with Extradition’, 5 Criminal Law Forum (1994) pp. 557–588CrossRefGoogle Scholar.

65. Allegations which can be periodically heard that the FRY does not recognize the jurisdiction of the ICTY at all are not accurate. She does not recognize it only in cases of concurrent jurisdiction of her bodies. This follows from the letter of Mr. Uroš Klikovac, the vice-president of the Government of the FRY to the Security Council of the United Nations of 29 December 1994 (1994/1450). His two basic propositions are the following: a) the so-called FRY shall process its citizens who have committed crimes herself, and b) the so-called FRY shall, within limits of the proposition, a) provide legal assistance to the ICTY in accordance with rules of her national law. Had the FRY not recognized the jurisdiction of the ICTY at all, she would not have established bodies for cooperation with the ICTY, or envisaged the possibility of rendering legal assistance. Regardless of later concessions to the international community, the attitude of the FRY towards the jurisdiction of the ICTY had not fundamentally changed at the time of writing.

66. This was the case at the time of writing.

67. Laws of several states that have enacted a law on performance of obligations to the ICTY invoke application of general rules of criminal procedure and of extradition mutatis mutandis.

68. Art.29(2) mentions arrest or detention of persons and surrender or transfer of the accused. Did the authors of the Statute want to imply that persons who are not accused could be arrested or detained? It could not be justified, unless in respect of the arrest and compulsory bringing before the ICTY of witnesses who are trying to avoid testifying. On the other hand, Rule 55 implies that an arrest and surrender warrant can be issued exclusively in respect of an accused. But, Rule 40 bis changed this position.

69. Rules 55–57.

70. According to Art. 9(2) of the Croatian Constitution, ‘A citizen of the Republic of Croatia may not be expelled from the Republic, cannot be divested of his or her citizenship, and cannot be extradited to another state.’ The Constitution of the former SFRY contained a similar provision: ‘A citizen of the Socialist Federal Republic of Yugoslavia cannot be deprived of citizenship, expelled from the country or extradited.’ (Art. 200(2) of the Constitution of former SFRY of 1974, Službeni list, Beograd 1988, p. 92). The same wording is contained in the Constitution of die Republic of Serbia of 1990. The Constitution of the Republic of Slovenia of 1991, in Art. 47(2), like die Croatian Constitution, prohibits extradition to another state. German Grundgesetz of 1949 in Art. 16(2) prohibits extradition ‘to abroad’. Cf., Krapac, D., ICTY, supra n. 5 at p. 49Google Scholar.

71. For die notion, legal nature and history of extradition see Krapac, D., and Birin, V., Me∂unarodna kriviènopravna pomoœ [International Judicial Assistance] (Informator, Zagreb 1987) p. 23 et seq.Google Scholar, Krapac, D., ICTY, supra n. S at p. 50Google Scholar, points to an historical precedent for die argument that surrender to an international tribunal does not amount to extradition (Case of Wilhelm II and his extradition following World War I). See also Jones, A., Jones on Extradition (Sweet and Maxwell, London 1995)Google Scholar for historical development and the present situation of extradition in England; Bassiouni, M.C., Extradition: US law and practice, (Oceana, New York 1993)Google Scholar; Schutte, J., ‘Transfer of criminal proceedings, die European system’, in International criminal law Vol. II, Bassiouni, M.C., ed., (Transnational Publishers, Dobbs Ferry, New York 1986) pp. 317–348Google Scholar.

72. Rule 40 bis (D). On arrest and detention before the ICTY, see Josipović, I.Uhićenje i pritvor [Arrest and Pre-trial Detention] (Targa, Zagreb 1998) pp. 101–125Google Scholar.

73. Rule 39(iii).

74. Rule 39(i) and (ii).

75. Art. 2.

76. Art. 5.

77. The war took place on the territory of Croatia and Bosnia and Herzegovina. However, it is likely that certain acts, such as preparing and inciting, were committed in the territory of the FRY, military units of which participated in fighting in the territory of Croatia and Bosnia and Herzegovina.

78. This study shall deal with die normative aspect of cooperation. Actual cooperation of particular states was, at different time periods, assessed differently by the ICTY. See ICTY Yearbook (1995) pp. 317–322Google Scholar.

79. See ICTY Yearbook (1995) p. 321Google Scholar.

80. A new Memorandum of Consent was prepared in 1997. It was supposed to be signed by the two entities (the Federation of Bosnia and Herzegovina and the Republic of Srpska) and by the Republic of Bosnia and Herzegovina. However, the text of the Memorandum was never agreed upon and was never signed. The reason for proposing the new Memorandum was to make it obligatory for the Republic of Srpska, which did not accept the ICTY, to cooperate.

81. Art. 2.

82. Art. 23.

83. Art. 25.

84. Another Office of the ICTY operates in Sarajevo (Bosnia and Herzegovina) and another in Belgrade (FR Yugoslavia). However, these two have different authority.

85. Compare the above-mentioned letter of Mr. Uroš Klikovac, supra n. 65.

86. At the hearing held on 22 September 1997, when discussing whether a state can withhold documents which it deems important for national security, the then-President of the Tribunal, Judge Antonio Cassese, mentioned that the Australian law envisaged a possibility of non-delivery of documents related to military secrets. The Prosecutor replied that ‘if the decision of this court was that the national security interest cannot be asserted as an absolute bar to the duty to produce evidence, any domestic law to the contrary would have to yield.’ (Draft transcript of the hearing on 22 September 1997. Not official, not corrected), pp. 126–127. In Judgment on the request of the Republic of Croatia for review of the decision of Trial Chamber II of 18 July 1997, Blaškić case (IT-95–14), 29 October 1997, the Appeals Chamber unanimously found that ‘states are not allowed, on claim of national security interests, to withhold documents and other evidentiary material requested by the ICTY; however, practical arrangements may be adopted by a Trial Chamber to make allowance for legitimate and bona fide concerns of states’ (Disposition, sub (4)).

87. Art. 26.

88. Art. 40.

89. Art. 44.

90. Art. 41(4).

91. Art. 55(1).

92. Art. 36.

93. Art. 39.

94. Pursuant to Art. 14(6).

95. Art. 6(5).

96. Agreement on Surrender of Persons between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of Rwanda, 24 January 1995.

97. Art. 2(2) and (3).

98. Art. 2(4).

99. 1997 US Dist. LEXIS 20714, Decision in the Matter of Surrender of Elizaphant Ntakirutimana, MISC, MO.L-96–5. For an analysis of this case, see Paust, infra at page 205.

100. An English translation of the Icelandic law was not accessible to the author, so that law shall not be discussed.

101. Section 13(2).

102. Section 3(2).

103. Section 11(1).

104. Section 3(2).

105. 456/70.

106. Art. 4(4).

107. Auslieferungs und Rechtshilfegesetz and Strafprozessordnung. General provisions on jurisdiction are contained in paras. 1 to 3.

108. Para. S of the Law. This provision is of a constitutional character and is enacted pursuant to the constitution-making procedure.

109. Para. 10.

110. Arrest and surrender of accused persons subject to a request of the ICTY is regulated by Arts. 16 and 17 of the Austrian Law. ‘A right of appeal against rulings on detention and transfer exist only under Art. 1. para. 1 of the Law on the Constitutional Right of Appeal’ (Art. 16 para. 3).

111. Art. 16(5).

112. Arts. 3 to 5.

113. Art. 3(3).

114. Art. 9.

115. This statement gave rise to great concern in the ICTY and the Prosecutor Ms. Louise Arbour held a special talk with the French Minister of Foreign Affairs, advocating for a change of the French position. See Statement by the Prosecutor Louise Arbour following her meeting with the French Minister of foreign affairs, Mr. Hubert Vedrine, ICTY Press Release, CC/PIO/275-E, of 15 December 1997.

116. See ‘France to allow officers to testify before UN war crimes court’ (Agence France Presse, 16 March 1998). During a visit to Bosnia and Herzegovina in April 1998, French President Jacques Chirac stated that, ‘Naturally, France is cooperating and will cooperate fully with the ICTY. It goes without saying that we consider that war criminals must be tried and punished.’ ‘France's Chirac urges Bosnians to “build model country”’, (Agence France Presse, 7 April 1998).

117. Compare Arts. 10(1), 11(1), 12(1), 13(2), 15(2).

118. Art. 9(1).

119. Art. 2.

120. Art. 4(4).

121. Art. 1(2).

122. Art. 3.

123. Art. 5.

124. Art. 4(1).

125. Art. 10.

126. Arts. 11 to 13.

127. Art. 11(3) specifies the following reasons for denial of an arrest warrant: inexistence of a decision of the ICTY and mistaken identity of the accused.

128. Art. 11 (3c, c-bis, c-ter).

129. Arts. 4 and 5.

130. Art. 4(3).

131. Art. 7.

132. In our analysis of each particular legal system, we have pointed out their possible defects. We shall not repeat these assessments here but just mention legal systems which can be classified in each particular group as a matter of example.

133. For example, such is the situation in Germany, New Zealand, Austria, Sweden, Finland and Croatia.

134. Examples of such legislation can be found in the United Kingdom, France, Spain, the Netherlands and Australia.

135. For example, the United States and Italy. Certainly, states which have not enacted implementing legislation (e.g., FRY) should be put in this group in case their respective internal legislation does not enable performance of obligations in respect of the ICTY without special implementing legislation. It also has to be borne in mind that some states did not enact implementing legislation due to their geographic remoteness or for other reasons which make actual cooperation with the ICTY improbable.

136. For example, despite its good legislation, Croatia was occasionally singled out as a state which did not cooperate with the ICTY to a satisfactory extent. It is encouraging to notice that such assessments have recently changed. Application of national legislation mutatis mutandis envisaged by many implementing laws in states which were not in a position to do so, makes assessment of legislation and practice of the respective state impossible.

137. The best example is subsequent introduction of Rule 40 bis to the Rules of Procedure and Evidence. By the same token, enactment and application of implementing rules can either have strong political implications in some states, or procedure for their enactment can be complicated. Therefore, states cannot be expected to follow a fast pace of change of the Rules of Procedure and Evidence.

138. The behavior of states which are very active in persuading other states to perform their obligations in respect of the ICTY while they do not perform such obligations themselves is not encouraging. We have already mentioned cases where French military officers refused to testify as well as the denial of an American court of die surrender request of die US Government in relation to a person accused by the ICTR.