Background on the War Crimes Tribunal by M. Cherif Bassiouni


Bassiouni is Professor of Law, Director of the International Criminal Justice and Weapons Control Center at DePaul University in Chicago. As director of the UN's Commission of Experts he lead a two and a half year fact-finding mission in Bosnia during the war.

On May 25, 1993, the UN Security Council unanimously adopted Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (ICTY). Because the ICTY was created by the Security Council, all member states are bound by that decision. Furthermore, because the ICTY was created under Chapter VII, the Security Council can use sanctions to enforce the decisions of the tribunal.

The ICTY has its genesis in the work of the Commission of Experts Established Pursuant to Security Council Resolution 780. In October 1992, the Security Council adopted Resolution 780, to investigate "grave breaches of the Geneva Conventions and other violations of international humanitarian law" in the conflict in the former Yugoslavia. The Commission of Experts was given the broadest possible mandate of any international investigative body since Nuremberg.

After thirty- five field missions and two years of work, the Commission of Experts produced a Final Report and Annexes (3,500 pages) which documented the need for an international tribunal to prosecute for the violations that occurred. That Report was supported by a data base containing 65,000 pages of documents and 300 hours of video tapes which became the basis of the ICTY's subsequent investigations and prosecutions.

  • The ICTY consists of two Trial Chambers, composed of three judges each. And there is one Appeals Chamber, composed of five judges. The ICTY's prosecutor also serves as the prosecutor for the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. Further, the Appeals Chamber of the ICTY serves the same function for the ICTR.

  • The tribunal has its seat in The Hague, The Netherlands.

  • Eleven judges were elected by the UN General Assembly from a Security Council list of nominees on September 15, 1993, but the prosecutor only took office on August 15, 1994 due to political controversies in the Security Council over whom to appoint.
  • The jurisdiction of the tribunal is contained in Article 1 of the statute. Article 1 states that the ICTY "shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute." The statute also establishes individual criminal responsibility, including that of a head of state, for four clusters of offences. These offences are: grave breaches of the 1949 Geneva Conventions (Article 2); violations of the laws or customs of war (Article 3); genocide (Article 4); and, crimes against humanity (Article 5).
  • The tribunal has primacy over national jurisdictions (Article 9), but eliminates for double jeopardy (Article 10). The tribunal's rules of procedure are limited, but the statute delegates to the judges the authority to develop these rules (Article 16). The judges have elaborated some of these rules several times. The procedural rules guarantee due process and the rights of the accused (Article 21) in what is essentially an adversarial accusatorial procedural context.

    As to the general part, there are only two applicable provisions in the statute, namely, the nonapplicability of the defense of "obedience to superior orders" and "command responsibility" (Article 7). No other general part norms are contained in the statute. The penalties are also not contained in the statute, but they are promulgated by the judges of the court by analogy to the laws of the former Yugoslavia (Article 24).

  • At present, there are 78 published indictments and an unknown number of sealed indictments. Currently, twenty-four of the accused are in custody at the ICTY's detention unit in The Netherlands. Six cases are on-going, with another to commence in June of 1998. To date seventeen appeals have been lodged at the ICTY.

  • Only one case has been tried, namely, the Tadic case. In the Tadic case, on May 7, 1997, Tadic was found guilty on 11 counts of violations of the laws or customs of war and crimes against humanity by the Trial Chamber. Both the defense and the prosecution have appealed that judgment pursuant to Rule 108, "notice of appeal." The decisions of the Appeals Chamber are pending. On July 14, 1997, Tadic was sentenced to twenty years imprisonment. Only the defense has appealed the sentencing judgment, again, pursuant to Rule 108. Here too, the decision of the Appeals Chamber is pending. Further, the defence also lodged an interlocutory appeal pursuant to Rule 72, "preliminary motions," against the decision by Trial Chamber I on jurisdiction.

    In the Erdemovic case, on May 31, 1996, Erdemovic pleaded guilty to the count of crimes against humanity. On November 29, 1996, he was sentenced to ten years imprisonment by Trial Chamber I. Erdemovic appealed the sentencing judgement pursuant to Rule 108, and on October 7, 1997, the Appeals Chamber ruled that "the guilty plea of the Appellant was not informed and accordingly remits the case to a Trial Chamber other than the one which sentenced him in order that he be given an opportunity to replead."

    Erdemovic entered a new plea on January 14, 1998. He pleaded guilty to war crimes and not guilty to crimes against humanity. The prosecution has since dropped the count of crimes against humanity.

  • The remainder of the cases are pending. The Celebici case encompasses four accused individuals; namely, Delalic, Delic, Landzo and Mucic. The prosecution rested its case in February of this year and the defense beganits case in April. Two applications for interlocutory appeals pursuant to Rule 73, "other motions," have been lodged in the Celebici case - one by the prosecution and one by the defence. The prosecution applied for leave to appeal against the oral decision of Trial Chamber II rejecting the prosecution's motion seeking leave to call an additional expert witness concerning handwriting. The application was rejected. The defence applied for leave to appeal against the Trial Chamber decision on the motion of the prosecution for the admissibility of evidence. The application was rejected.

    Five applications for interlocutory appeals pursuant to Rule 72 have been lodged in the Celebici case. The defence applied for leave to appeal against the Trial Chamber decision on motion for a separate trial. The application was rejected. The defence applied for leave to appeal against the Trial Chamber decision on motion for provisional release of Delalic. The application was rejected. The defence applied for leave to appeal against the Trial Chamber decision on motion on defects in the form of the indictment against Delalic. The application was rejected. The defence applied for leave to appeal against the Trial Chamber decision on motion for provisional release of Delic. The application was rejected. Finally, the defence applied for leave to appeal against the Trial Chamber decision on motion based on defects in the form of the indictment against Delic. The application was rejected.

    In the Blaskic, Aleksovski, and Dokmanovic cases, evidence by the prosecution has been presented, and it is expected that the defense will end their cases soon. In the Blaskic case, the prosecution applied for leave to appeal, pursuant to Rule 72, against the Trial Chamber decision in respect of the protection of witnesses. The application was rejected. Further, in the Blaskic case there have been two state appeals pursuant to Rule 108bis, "state request for review." First, there was notice of appeal by the Republic of Croatia and a request to stay an order of the Trial Chamber. Second, there was notice of state request for review of an order on the motion of the prosecution for the issuance of a binding order on the Republic of Croatia for the production of documents and a request to stay an order of the Trial Chamber. In the Dokmanovic case, the defence applied for leave to appeal, pursuant to Rule 72, against Trial Chamber II's decision on motion for release by the accused. The application was rejected. Finally, the Kovacevic case is to go to trial on June 11th and thus far one appeal has been lodged. The prosecution applied for leave to appeal from the Trial Chamber's denial of the prosecution's request for leave to file an amended indictment. The decision of the Appeals Chamber is pending. Several other cases are at the initial stages of pre-trial hearings and motions.

  • The ICTY's development is in part reflected in its growing budget; in 1993 the ICTY's budget was $276,000 and by 1998 it was $64,216,200.

    For an insightful and exhaustive analysis of the ICTY, two books in particular are recommended for consultation, namely: M. Cherif Bassiouni (with the Collaboration Peter Manikas), "The Law of the International Criminal Tribunal for the Former Yugoslavia" (1996) and Virginia Morris & Michael P. Scharf, "An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia" (1995).

     


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