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The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)

Published online by Cambridge University Press:  27 February 2017

M. Cherif Bassiouni
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Extract

Throughout modern history, there have only been three internationally established commissions to investigate war crimes and prepare for eventual prosecutions before international and national judicial bodies: the 1919 Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties for Violations of the Laws and Customs of War (1919 Commission), the 1943 United Nations War Crimes Commission (UNWCC), and the Commission of Experts established pursuant to Security Council Resolution 780 (1992) to investigate violations of international humanitarian law in the former Yugoslavia (Commission of Experts). Even though there are no connections among the three bodies, there is enough historical precedential value in the first two as the antecedents of the Commission of Experts to warrant a brief examination.

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Current Developments
Information
American Journal of International Law , Volume 88 , Issue 4 , October 1994 , pp. 784 - 805
Copyright
Copyright © American Society of International Law 1994

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References

1 See Report Presented to the Preliminary Peace Conference by the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties (Carnegie Endowment for International Peace, Division of International Law Pamphlet No. 32, 1919), reprinted in 14 AJIL 95 (1920) [hereinafter 1919 Commission Report].

2 SC Res. 780 (Oct. 6, 1992), reprinted in 31 ILM 1476 (1992).

3 There is no reason to believe that the Security Council had these two antecedents in mind when it established the Commission of Experts.

4 Treaty of Peace between the Allied and Associated Powers and Germany, June 28, 1919, 11 Martens (ser. 3) 323, 2 Bevans 43.

5 The Treaties of Peace, 1919–1923, at 3 (Carnegie Endowment for International Peace, 1924).

6 Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter 1907 Hague Convention]. The 1919 Commission’s responsibility was to investigate the following:

1. The responsibility of the authors of war.

2. The facts as to breaches of the laws and customs of war committed by the forces of the German Empire and their Allies, on land, on sea, and in the air during the present war.

3. The degree of responsibility for these offences attaching to particular members of the enemy forces, including members of the General Staffs, and other individuals, however highly placed.

4. The constitution and procedure of a tribunal appropriate for the trial of these offences.

5. Any other matters cognate or ancillary to the above which may arise in the course of the enquiry, and which the Commission finds it useful and relevant to take into consideration.

1919 Commission Report, supra note 1, 14 AJIL at 95. See also M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 148 (1992).

7 See 1907 Hague Convention, supra note 6, Preamble. Because the United States and Japan objected to the concept of international criminal responsibility for violations of the “laws of humanity,” this basis for international criminal responsibility was not pursued. 1919 Commission Report, supra note 1, 14 AJIL at 144–50; Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities, Ann. II (Apr. 4, 1919), reprinted in 14 AJIL at 127. In 1919 the eventual prosecutions for crimes against humanity related to conduct by Turkish officials against the Armenian and Greek minorities in 1915–1919. Article 230 of the Treaty between the Allied and Associated Powers and Turkey, Aug. 10, 1920, reprinted in 2 The Treaties of Peace, supra note 5, at 789, 15 AJIL 179 (Supp. 1921), required Turkey to surrender such accused persons for trial. However, this treaty was never ratified and the surrender of the accused never occurred. Instead, the treaty was replaced by the Treaty of Peace with Turkey, July 24, 1923, reprinted in 2 The Treaties of Peace, supra, at 959, 18 AJIL 1 (Supp. 1924), which did not contain a provision similar to Article 230 of the unratified treaty but was accompanied by a “Declaration of Amnesty” for all offenses committed between August 1, 1914, and November 20, 1922. See M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1 (1991).

8 1907 Hague Convention, supra note 6, preambular para. 6.

9 One of the differences between the two bodies is that the 1919 Commission was established contemporaneously with the drafting of the Treaty of Versailles, which provided for an international tribunal, while the 1992 Commission of Experts was established some six months before the establishment of the International Criminal Tribunal for the Former Yugoslavia. See SC Res. 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993).

10 See Quincy Wright, The Legality of the Kaiser, 8 Am. Pol. Scl. Rev. 121 (1919). The Kaiser lived in retirement until his natural death.

11 See generally Claude Mullins, The Leipzig Trials 23–24 (1921); James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (1982); James W. Garner, Punishment of Offenders against the Laws and Customs of War, 14 AJIL 70 (1920).

12 See Mullins, supra note 11, at 26–27.

13 See Bassiouni, supra note 6, at 201 n.41.

14 See Mullins, supra note 11, at 35–36.

15 See Bassiouni, supra note 6, at 201.

16 Id. at 202.

17 Id.

18 Id.

19 United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War 51–52 (1948) [hereinafter History of UNWCC].

20 Bassiouni, supra note 6, at 202.

21 Id.

22 Id.

23 Mullins, supra note 11, at 231. See also Bassiouni, supra note 6, at 202.

24 See, e.g., Willis, supra note 11.

25 This is evidenced by the difficulties in setting up the post-World War II prosecutions. See, e.g., Robert H. Jackson, Report of the United States Representative to the International Conference on Military Trials (1949) [hereinafter Jackson Report].

26 See generally History of UNWCC, supra note 19.

27 Inter-Allied Declaration, Jan. 13, 1942, reprinted in Punishment for War Crimes: The Inter-Allied Declaration Signed at St. James Palace, London on 13 January 1942, and Related Documents (United Nations, New York, undated).

28 Declaration on Security, 9 Dep’t St. Bull. 308 (1943), reprinted in 38 AJIL 5 (1944). President Roosevelt, Prime Minister Churchill and Premier Stalin signed the statement on October 30, 1943.

29 1943 Foreign Relations of the United States 448. In 1943 the major Allied powers in Europe were England, France, the United States and the USSR, but several other powers were also deemed Allied. Ultimately, 19 of them acceded to the London Charter of August 8, 1945, which was one of the bases for the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279 [hereinafter London Agreement].

30 The UNWCC examined 8,178 “dossiers,” which listed 24,453 accused, 9,520 suspects and 2,556 material witnesses. History of UNWCC, supra note 19, at 508–09. By 1948, European countries and the United States brought a total of 969 cases in their respective courts. The 969 cases involved 3,470 accused, of whom 952 were sentenced to death, 1,905 were imprisoned and 613 were acquitted of all charges. Id. at 518.

31 See generally Trial of the Major War Criminals Before the International Military Tribunal (1949).

32 See Jackson Report, supra note 25. See generally Telford Taylor, Anatomy of the Nuremberg Trials (1992).

33 Allied Control Council Law No. 10, Dec. 20, 1945, Control Council for Germany, Official Gazette No. 3, Jan. 31, 1946, at 50, reprinted in Benjamin B. Ferencz, An International Criminal Court, A Step Toward World Peace 488 (1980). For U.S. proceedings, see Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955 (1989); Telford Taylor, Final Report to the Secretary of the Army on the Nurnberg War Crimes Trials Under Control Council Law No. 10 (1949).

34 See Bassiouni, supra note 6, at 213; Jean Pierre Maunoir, La Repression des crimes de guerre devant les Tribunaux Français et Alliés (1956); Henri Meyrowitz, La Repression par les Tribunaux Allemands des crimes contre l’humanité et de l’afpartenance à une organisation criminelle (1960); WiUard B. Cowles, Trials of War Criminals (Non-Nuremberg), 42 AJIL 299 (1948).

35 An estimated 16,000 persons were prosecuted at the “Subsequent Proceedings” by the four major Allies that occupied Germany, each one setting up its own proceedings with different substantive laws and procedures for each court. See Remigiusz Bierzanek, War Crimes: History and Definition, in 3 International Criminal Law 29 (M. Cherif Bassiouni ed., 1987).

36 The Treaty of Peace with Italy, Feb. 10, 1947, 4 Bevans 311,61 Stat. 1245, provides in Article 45 that Italy has a duty to extradite any of its nationals charged with war crimes. Ethiopia, Greece and Yugoslavia repeatedly requested the extradition of war criminals, but were refused first by the United States and the United Kingdom as occupying forces in Italy, and then in 1946 by the Italian Government. See Bassiouni, supra note 6, at 227–28.

37 See History of UNWCC, supra note 19, at 511.

38 The Other Balkan Wars 6 (Carnegie Endowment for International Peace, 1993) [hereinafter Balkan Wars]. The Carnegie Endowment appointed seven members to the Commission from the following countries: the United States, Britain, Germany, Austria-Hungary, Russia (one from each), and France (two). Id. All of the members were prominent figures in the international peace movement at the time. Id.

39 Id.

40 A comparison of the Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, reprinted in Balkan Wars, supra note 38, and the Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/l994/674 (May 27, 1994) [hereinafter Final Report], reveals uncanny similarities in the processes of victimization in that region.

41 SC Res. 780 (1992), supra note 2, operative para. 2. The Secretary-General appointed five members on October 25, 1992: Professor Frits Kalshoven (the Netherlands) as chairman; Professor M. Cherif Bassiouni (Egypt); Commander William J. Fenrick (Canada); Judge Keba M’Baye (Senegal); and Professor Torkel Opsahl (Norway). Professor Kalshoven resigned from the Commission for medical reasons in August 1993, and Professor Opsahl, who was briefly the acting chairman, passed away in September. Therefore, on October 19, 1993, the Secretary-General appointed Professor Bassiouni as chairman and Professor Christine Cleiren (the Netherlands) and Judge Hanne Sophie Greve (Norway) as new members. Even though he is a naturalized U.S. citizen, Professor Bassiouni, a native-born Egyptian, was listed as being from “Egypt,” because it was felt that no representative of the permanent members of the Security Council should be on the Commission.

42 The United States introduced Security Council Resolution 780, as well as its predecessor Resolution 771. The United States wanted the Commission called “War Crimes Commission” or to have the words “war crimes” as part of the name, which would have been reminiscent of the 1943 UNWCC and the Nuremberg proceedings. The U.S. position was based on its expectation that the Commission would pave the way for an eventual tribunal, but largely because of the opposition of the United Kingdom, a compromise on the name “Commission of Experts” was reached in the Security Council.

43 See “Resources of the Commission,” infra p. 801.

44 Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/25274, at 20, para. 74 (Feb. 10, 1993) [hereinafter First Interim Report].

45 SC Res. 808 (Feb. 22, 1993). See generally Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122.

46 The proposals considered were submitted by the Committee of French Jurists, a commission of Italian jurists and the Permanent Representative of Sweden on behalf of the Conference on Security and Co-operation in Europe (CSCE). See UN Docs. S/25266, S/25300 and S/25307, respectively (1993). All three proposals relied, in part, on M. Cherif Bassiouni, Draft Statute International Criminal Tribunal (Nouvelles Études Pénales No. 9, 1992).

47 First Interim Report, supra note 44.

48 See UN Doc. S/25266 (1993).

49 See UN Doc. S/25300 (1993).

50 See UN Doc. S/25307 (1993). The drafting of the statute involved significant consultations with governments, nongovernmental organizations and individual experts. The work was under the supervision of Carl-August Fleischhauer, then Under-Secretary-General and Legal Counsel of the United Nations and now a judge of the International Court of Justice, and Ralph Zacklin, Deputy Legal Counsel of the United Nations.

51 Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993) [hereinafter Report of the Secretary-General].

52 The Commission of Experts contributed to the Report of the Secretary-General, supra note 51, with respect to the formulation of the applicable law consistent with its statements in its First Interim Report, supra note 44.

53 SC Res. 827, supra note 9. Several governments had wanted to introduce amendments to the proposed statute, but it was feared that such a process would only delay its adoption. Therefore, no amendments were allowed, though the resolution itself contained a few substantive additions.

54 The Secretary-General, under Article 16(4) of the Tribunal’s statute, has the prerogative of nominating candidates for the Council’s appointment. Report of the Secretary-General, supra note 51, at 42. He formally nominated M. Cherif Bassiouni in August 1993. The Council had decided to act on the nomination by consensus instead of by vote. This first nominee did not, however, obtain the consensus of the Council’s members. In July 1994, the Secretary-General appointed Justice Richard Goldstone of the Supreme Court of South Africa and the Security Council unanimously accepted the appointment. See text at and note 56 infra. Justice Goldstone took office on August 15, 1994.

55 No decision had been taken by the Security Council as of the date of Mr. Fleischhauer’s letter to terminate the Commission, which the Council itself had created.

56 See supra note 54.

57 See “Termination of the Commission,” infra p. 802.

58 SC Res. 780, supra note 2, operative para. 1.

59 First Interim Report, supra note 44, at 13–14, paras. 37–45. For a recent survey of legal issues, see Jordan Paust, Applicability of International Criminal Laws to the Events in the Former Yugoslavia, 9 Am. U. J. Int’l L. & Pol’y 499 (1994).

60 1907 Hague Convention, supra note 6.

61 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

62 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 1125 UNTS 3, reprinted in 16 ILM 1391 (1977); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature Dec. 12, 1977, 1125 UNTS 606, 16 ILM at 1442.

63 Dec. 9, 1948, 78 UNTS 277.

64 May 14, 1954, 249 UNTS 240.

65 See Charter of the International Military Tribunal, Art. 6(c), annexed to the London Agreement, supra note 29; International Law Commission, Report on Principles of the Nuremberg Tribunal, UN GAOR, 5th Sess., Supp. No. 12, at 11, UN Doc. A/1316 (1950); see also Bassiouni, supra note 6, at 479–99.

66 First Interim Report, supra note 44, at 13, para. 38.

67 Slovenia, Croatia and Bosnia-Hercegovina, respectively, signed separate declarations with the International Committee of the Red Cross. The three countries succeeded to the 1949 Geneva Conventions and the 1977 Additional Protocols on the following dates: Slovenia, March 26, 1992; Croatia, May 11, 1992; and Bosnia-Hercegovina, December 31, 1992. See First Interim Report, supra note 44, at 13, para. 38; Final Report, supra note 40, at 32, para. 125.

68 Final Report, supra note 40, at 16, 18, paras. 56, 62.

69 Id. at 24–27, paras. 87–101.

70 Id. at 20–24, paras. 72–86.

71 Id. at 16–17, paras. 55–60.

72 Id. at 18, paras. 61–62.

73 Id. at 18–19, paras. 63–66.

74 Id. at 27–29, paras. 102–09. See also Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993).

75 See Report of the Secretary-General, supra note 51.

76 M. Cherif Bassiouni, Crimes Against Humanity: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457 (1994).

77 Final Report, supra note 40, at 10, paras. 23–24.

78 The Annexes to the Final Report are expected to be over 3,000 pages long.

79 To keep track of the 64,000 pages of documents, an elaborate system was established for recording the documents as they were received.

80 In addition to being a visual record, the archive of video tapes also helps witnesses identify places and persons, including perpetrators. The Office of the Prosecutor is exploring the use of this technology, provided by IHRLI and Linden Productions.

81 Final Report, supra note 40, at 29–33, paras. 110–28.

82 Id.

83 Id. at 33–37, paras. 129–50.

84 Id. at 43–46, paras. 183–94.

85 Id. at 51–55, paras. 216–31.

86 Id. at 55–60, paras. 232–53.

87 Id. at 61–62, paras. 254–64.

88 Under the direction of Commissioner Greve, the Prijedor project, which started with information gathered in the data base, produced direct information and evidentiary statements.

89 On the Medak Pocket incident, see Final Report, supra note 40, at 49–51, paras. 210–15.

90 Id. at 62–65, paras. 265–76. The Commission, however, conducted several field investigations at the site with the aid of experts from Physicians for Human Rights. The team confirmed the existence of the mass grave and videotaped the site and some of the remains found near the surface. The team also collected some evidence in the nature of statements and other tangible evidence.

91 Id. at 62–63, paras. 265, 267–69. The Croatian Government cooperated with the Commission on this investigation, as well as other activities conducted in that state.

92 Id. at 63–64, paras. 271–73.

93 Id. at 64, para. 275. The Croatian Government was given the same privilege.

94 See text at and note 139 infra.

95 Final Report, supra note 40, at 65, para. 276. The grave site is protected by soldiers from a nearby Russian UNPROFOR unit.

96 In view of the fact that the Federal Republic of Yugoslavia and the so-called Serb Republic of Krajina have not yet recognized the competence of the ICTFY, it is doubtful whether the Krajina Serb authorities will authorize exhumation by the Office of the Prosecutor.

97 Final Report, supra note 40, at 65–66, paras. 277–84. The cooperation of the Government of Croatia made this investigation possible.

98 Id. at 65, para. 277.

99 Id., para. 278.

100 Id. at 65–66, para. 281.

101 Id. at 66, para. 283. The grave site was protected by a unit of UNPROFOR’s Jordanian battalion until July 1994, when Croatia requested that the area be placed under the control of its army, the H.V.

102 The contributing Governments were Canada, the Netherlands, and the United States. Sixty-five persons were directly involved in these operations.

103 For an in-depth report on the exhumations, see Annexes X.A (Ovcara) and X.B (Pakracka Poljana) to the Commission’s Final Report, supra note 40.

104 See special reports pertaining to on-site investigations in the following annexes to the Final Report, supra note 40: X.A (Vukovar, Ovcara, UNPA Sector East, Croatia); X.B (Medak and Dubrovnik, UNPA Sectors East and West); and XII (radiological investigation, UNPA Sector West, Croatia).

105 Final Report, supra note 40, at 37–43, paras. 151–82. The evidence obtained was turned over to the Office of the Prosecutor of the ICTFY.

106 Id. at 66–68, paras. 285–97.

107 See id., Ann. IX.A, Sexual Assault Investigation.

108 The Commission, by agreement with the Acting Deputy Prosecutor, Graham Blewitt (Australia), decided not to take formal statements of victims and witnesses in order not to prejudice the Prosecutor’s subsequent work and also not to have statements that could be used later to impeach witnesses at trial. This was not the Commission’s only concern. Concern for the victims’ and witnesses’ safety and privacy, as well as their emotional state, was paramount. The project was funded by a contribution from the Netherlands.

109 See Final Report, supra note 40, at 55–60, paras. 232–53.

110 Id. at 60, paras. 251–53.

111 The Rules of Procedure and Evidence for the ICTFY ensure the support and protection of victims and witnesses.

112 See Final Report, supra note 40, Ann. IV, pt. 3.

113 Final Report, supra note 40, at 37–43, paras. 151–82.

114 At first, UNPROFOR did not provide the Commission with information on violations of international humanitarian law on the grounds that it was contrary to its mandate. The Civil Police of UNPROFOR (CIVPOL) also did not give the Commission detailed reports of its investigations until after April 1993, when more information was forthcoming, though sketchy. In September 1993, the situation changed and UNPROFOR started to conduct some detailed investigations, particularly on the Medak Pocket incident, supra note 89, and the Stupni Do incident, which involved the destruction of a village and the brutal killing of a large number of its inhabitants.

115 Regrettably, the European Community Monitoring Mission has never had a centralized documentation center where all of its reports could be kept and cataloged.

116 First Interim Report, supra note 44, at 9, paras. 17–21; Second Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/26545, at 8, paras. 20–24 (Oct. 6, 1993) [hereinafter Second Interim Report].

117 Final Report, supra note 40, at 9, 10, 12, paras. 18, 25, 37.

118 The information received from the “warring parties” was useful. In many cases, the information was quite detailed and accompanied by statements of victims and witnesses. The Governments of Bosnia-Hercegovina and Croatia were particularly cooperative.

119 See text at and note 114 supra. A question arises with respect to UN missions using military personnel, such as UNPROFOR, whether common Article 1 of the four Geneva Conventions, which requires all parties to enforce the Conventions, includes the duty to report at least “grave breaches” when military forces are placed under UN command.

120 For a recent commentary on the workings of the International Committee of the Red Cross by a staff member, see Michele Mercier, Crimes Sans Chatiment (1994).

121 See Final Report, supra note 40, at 57–60, paras. 241–53. These NGOs identified victims and witnesses, established contact between them and the Commission and provided them with material and psychological support.

122 See text at notes 99–103 supra.

123 See, e.g., Roy Gutman, A Witness to Genocide (1993).

124 First Interim Report, supra note 44; Second Interim Report, supra note 116.

125 Final Report, supra note 40. The annexes consist of the following; (I) Rules of Procedure of the Commission; (LA) The Database and Documents Received; (LB) List of Missions Undertaken by the Commission; (I.C) List of Non-Governmental Organizations which assisted or collaborated with the Commission; (II) Rape and Sexual Assault: A Legal Study; (III) Military Structure; (III.A) Special Forces; (IV) The Policy of “ethnic cleansing”; (V) The Prijedor Report; (VI) Study of the Battle and Siege of Sarajevo; (VI.A) Sarajevo Investigation; (VII) Medak Investigation; (VIII) Prison Camps; (IX) Sexual Assault; (IX.A) Sexual Assault Investigation; (X) Mass Graves; (X.A) Vukovar (Ovcara, UNPA Sector East, Croatia); (X.B) Investigations in UNPA Sectors East and West, Medak and Dubrovnik; (XI) Destruction of Cultural Property Report; (XI.A) The Battle of Dubrovnik and the Law of Armed Conflict; and (XII) Radiological Investigation (UNPA Sector West, Croatia).

126 Final Report, supra note 40, at 2.

127 Id.

128 Id.

129 Id. at 71, para. 310. The Commission identified in its Final Report 715 prison camps, 187 mass graves allegedly containing between 5 and 3,000 bodies, and almost 800 rape victims by name or number. In addition, there were 1,673 unnamed rape victims in the data base. General reports indicate 200,000-250,000 persons killed, over 50,000 cases of torture and an estimated 20,000 rape cases. There have also been large-scale destruction of public, private and cultural property; pillaging and looting; and many other violations of international humanitarian law.

130 Id. at 65–66, paras. 277–84. See text at notes 100–01 supra.

131 See Final Report, supra note 40, at 65–66, paras. 277–84.

132 For a list of participating countries and the amounts contributed, see id. at 12, para. 35.

133 See text at note 128 supra.

134 See text following note 53 supra.

135 On August 29, 1993, the Commission submitted a nonpaper to the Secretary-General that included a termination date of July 31, 1994. Furthermore, the Second Interim Report, supra note 116, reflected a plan of action based on that date.

136 UN Doc. A/48/L.50 (1993) (with 109 states voting in favor). Interestingly, the Governments of Bosnia-Hercegovina, Croatia and the Federal Republic of Yugoslavia wanted the Commission to continue its work. Croatia even sent a formal letter to the Security Council.

137 The Commission notified the Secretary-General of its views concerning the premature termination and its consequences. However, it appeared that several members of the Security Council, particularly permanent members including the United States, favored earlier termination.

138 The rape and sexual assault investigation continued until the last possible moment, March 31, 1994. However, there were an estimated 200 more victims in Croatia from Bosnia and Hercegovina as well as Croatia to be interviewed, 7 victims from Serbia to be interviewed in Belgrade, and an undetermined number of victims to be interviewed in Turkey at the request of the Turkish Government. The chairman urged the respective Governments to conduct them and to send the findings to the Office of the Prosecutor of the ICTFY, but thus far there appears to have been no follow-up on this suggestion, perhaps because these Governments may not have wanted to assume the task in the absence of the Commission.

139 Final Report, supra note 40, at 62–65, paras. 265–76.

140 Id. at 65–66, paras. 277–84.

141 As Ambassador Rick Endiforth once told me, a proper transition should have been “like a relay race where the two runners run side by side while one passes the baton to the other.” However, after the appointment of Justice Goldstone, close cooperation was promptly established.

142 Final Report, supra note 40, at 12, para. 33.

143 Professor Herman Schwartz, among others, publicly advocated a “truth commission.” There is much merit to this suggestion. See Herman Schwartz, What Can We Do about Balkan Atrocities?, N.Y. Times, Apr. 9, 1993, at A27. The truth, however much of it can be objectively discovered and stated, is only one component. Two additional ones must follow: justice in the declarative and retributive senses and compensation of victims. On the justice component, see Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991). For the victim-compensation component, see United Nations Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, GA Res. 40/34 (Dec. 11, 1985), reprinted in International Protection of Victims (Nouvelles Études Pénales No. 7, M. Cherif Bassiouni ed., 1988) and the commentaries on the declaration contained therein. Several governments had suggested including provisions on victim compensation in the Tribunal’s statute, but some members of the Security Council opposed it. Resolution 827 at least provides that “the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law.” SC Res. 827, supra note 9, operative para. 7.

144 See Final Report, supra note 40, at 33–37, paras. 129–50.

145 Id. at 55–60, paras. 232–53.

146 Id. at 29–33, paras. 110–28.

147 Id. at 24–27, paras. 87–101.

148 Id. at 20–24, paras. 72–86.

149 SC Res. 775 (July 1, 1994). However, no contacts were established between the Rwanda Commission and members of the Commission of Experts. Thus, the opportunity to transfer valuable knowledge and experience was lost.

150 See generally M. Cherif Bassiouni, Enforcing Human Rights through International Criminal Law and through an International Criminal Tribunal, in Human Rights: An Agenda for the Next Century 347 (Louis Henkin & John Lawrence Hargrove eds., 1994).

151 See, e.g., Tenth Report on the Draft Code of Crimes against the Peace and Security of Mankind, UN Doc. A/CN.4/442 (1992); Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind (Nouvelles Etudes Penales No. 11, M. Cherif Bassiouni ed., 1993).

152 See Report of the International Law Commission on the work of its forty-sixth session, UN Doc. A/49/10 (1994); Revised Report of the Working Group on the Draft Statute for an International Criminal Court, UN Doc. A/CN.4/L.490 & Add.1 (1993); see also M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987); Bassiouni, supra note 46.

153 In his final report on Nuremberg, Justice Jackson stated that he was “consoled by the fact that in proceedings of this novelty, errors and missteps may also be instructive to the future.” See Jackson Report, supra note 25, at 440. See also M. Cherif Bassiouni, Nuremberg: Forty Years After, 18 Case W. Res. J. Int’l L. 261 (1986); Forty Years After the Nuremberg and Tokyo Tribunals: The Impact of the War Crimes Trials on International and National Law, in 80 ASIL Proc. 56 (1986) (panel and discussion).

154 Final Report, supra note 40, at 72, para. 320.

155 History of UNWCC, supra note 19, at iv.