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Proof Beyond a Reasonable Doubt?: Collecting Evidence for the International Criminal Tribunal for the Former Yugoslavia
Published online by Cambridge University Press: 09 March 2016
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- Type
- Notes and Comments/ Notes et commentaries
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 31 , 1994 , pp. 235 - 263
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1994
References
1 SC Res. 827 (1993) 25 May 1993, UN Doc. S/250593. The Tribunal has since established its official title to be the “International Criminal Tribunal for the Former Yugoslavia.”
2 The International Law Commission has been working on the development of a draft Code of Offences against the Peace and Security of Mankind since 1948, and an integral part of that process has been consideration of the establishment of an international criminal court. A detailed review of the history and current status of these initiatives can be found in the Report of the International Law Commission on the Work of its Forty-Fourth Session, 4 May-24 July 1992, GAOR 47th Sess., Supp. No. 10, UN Doc. A/47/10.
3 The Canadian War Crimes Investigation Team was a joint activity of the ( then ) Department of External Affairs and International Trade Canada and the Department of National Defence. The offer to the Commission was made through the initiative of the Office of the Legal Adviser of the Department of External Affairs, Mr. Barry Mawhinney, whose staff provided support throughout this project. For a number of reasons, including the hazards of the military situation in which the investigations were to be conducted, all members of the Canadian War Crimes Investigation Team were military personnel. The team itself consisted of seven people, three lawyers and four military police investigators. At different times throughout its existence the following persons served as members: Lieutenant Colonel Kim Carter, Lieutenant Colonel Dominic McAlea, Major Luc Boutin, Major Bert Herfst, Major Joe Holland, Major Pat Olson, and Major Andrew van Veen (all members of the Office of the Judge Advocate General) and Captain Serge Réné, Warrant Officer Steve Murray-Ford, Sergeant Jean-Luc Lamothe, Petty Officer Jocelyn Ross, Sergeant Ray Roy, and Master-Corporal Tammy McComb (all members of the Security Branch).
4 The statute of the court can be found annexed to SC Res. 827, supra note 1.
5 The Commission of Experts was established on Oct. 6, 1992, by SC Res. 780 (1992). The original members of the Commission were Professor Frits Ralshoven (first chair, who retired from the Commission in August 1993); Professor Torkel Upsahl ( second chair, who died in September 1993 ) ; Professor Cherif Bassiouni (third chair); Judge Kéba Mbaye; Commander William Fenrick; and since October 1993 Judge Hanne-Sophie Greve and Professor Christine Cleiren.
6 Commander Fenrick, a Canadian Forces legal officer, served as rapporteur for legal issues and also rapporteur for on-site investigations for the Commission.
7 In February 1993 at least three proposals for an international tribunal, which included draft statutes, were submitted to the Secretary-General. These were: the French Committee of Jurists proposal submitted as an annex to a letter from the Permanent Representative of France to the United Nations addressed to the Secretary-General, UN Doc. S/25266, Feb. 10, 1993; an Italian proposal submitted as an annex to a letter from the Permanent Representative of Italy to the United Nations addressed to the Secretary-General, UN Doc. S/25300, Feb. 17, 1993; and the proposal of the Conference on Security and Cooperation in Europe (“Corell-Turk-Thune proposal”) submitted in their report to the Secretary-General, UN Doc. S/S5307, Feb. 18, 1993.
8 For a variety of reasons many groups collecting allegations and information may not wish to impose the more rigorous requirements of evidentiary admissibility upon this material. The allegations and information may be collected for political, sociological, and humanitarian (i.e., victim support) reasons. All these may be valid reasons but such allegations and information may not be “translatable” into evidence. For example, an allegation of rape may be used for humanitarian or political reasons even if the perpetrator or perpetrators cannot be identified. Such information, however, would be less useful in terms of a criminal prosecution except, potentially, if the military affiliation of the perpetrators of a number of rapes could be established, leading to the possibility of charges using the doctrine of command responsibility against more senior military commanders. It was the experience of the author that there was, to some degree, an emphasis on the number of allegations or “cases” which could be pointed to rather than on the quality of the information relating to a particular incident. The team quickly began to distinguish between allegations, the sub-category of reliable information, and a further sub-category of potentially admissible evidence.
9 The Canadian War Crimes Investigation Team worked on three projects in Sarajevo, and on projects in Dubrovnik, Medac, Ovcara, and Packrac Poljana in Croatia.
10 Probably the best and certainly the most recent discussion of the Nuremberg prosecutions can be found in Taylor’s, Telford The Anatomy of the Nuremberg Trials (New York: Alfred A. Knopf, 1992).Google Scholar
11 Ibid., 57.
12 Smith, Bradley F., Reaching Judgement at Nuremberg 82 (New York: Basic Books, 1977).Google Scholar
13 Supra note 10, at 169–73.
14 Ibid., 651.
15 Supra note 12, at 87.
16 Ibid., 88.
17 Ibid., 83.
18 A detailed examination of the trial, from the prosecutorial viewpoint, can be found in Hausner’s, Gabriel Justice in Jerusalem (New York: Harper Row, 1966).Google Scholar
19 Ibid., 326.
20 Ibid., 327.
21 Ibid., 341.
22 Ibid., 329.
23 Ibid., 334.
24 Ibid., 336.
25 Ibid., 337.
26 Ibid., 325.
27 Ibid., 346.
28 Can. TS. 1976 No. 47.
29 R. v. Finta, [1992] 73 C.C.C.(3d) 65 (Ont. C.A.).
30 Ibid., 98.
31 Ibid., 98, 203.
32 Ibid., 193.
33 Ibid.
34 Ibid., 198.
35 Ibid., 200.
36 Ibid.
37 Supra note 2, at 199.
38 Ibid., 148–198.
39 Ibid., 174–187.
40 Bassiouni, M. Cherif, Draft Statute International Tribunal, 2nd ed. (1993) 10 Nouvelles Études Pénales 1.Google Scholar
41 Ibid., 66, 67.
42 These were selected on the basis that, if they proved useful models, materials about them would be readily available.
43 For a brief summary of the jurisdiction and procedures of these courts, see Schabas, William A., International Human Rights Law and the Canadian Charter: A Manual for the Practitioner (Toronto: Carswell, 1991).Google Scholar
44 Ibid., 55.
45 Conversation with Professor Torkel Upsahl, September 1993.
46 Supra note 7.
47 Ibid., 5, 6.
48 Ibid., 7.
49 Ibid.
50 Ibid., 33.
51 Ibid., 33, 67.
52 Ibid., 29.
53 Supra note 7.
54 Ibid., 6, 7, and 14.
55 Ibid., 7.
56 Supra note 7.
57 Ibid., 10.
58 Ibid., 62.
59 Ibid., 59–61.
60 Ibid., 53.
61 Ibid., 182.
62 Annex 1 to a letter dated g February 1993 from the Secretary-General addressed to the President of the Security Council, United Nations Document S/25274 10 February 1993.
63 Ibid., 20.
64 Ibid., 12.
65 This material was obtained from a variety of sources. An article by Payam Akavan, a Canadian who had worked for the Corell-Turc-Thune Commission, provided insight into the potential reaction of local authorities to a foreign war crimes investigation: “Punishing War Crimes in the Former Yugoslavia: A Critical Juncture for the New World Order,” (1993) 15 Hum. Rts. Q. 31. A conference hosted by the International Centre for Criminal Law Reform and Criminal Justice Policy held in Vancouver from 22 to 26 March 1993, provided access to a number of proposals relating to evidence collection, such as a document entitled “Toward Principles for the International Prosecution of Sexual Atrocities, with Particular Reference to Genocide in Croatia and Bosnia-Herzegovina” distributed by Professor Catharine MacKinnon of the University of Michigan outlining special protective measures for victims of sexual assault, and a discussion paper on pretrial and trial processes by Christopher A. Amerasinge, Q.C., Senior General Counsel, Crimes Against Humanity and War Crimes Section, Department of Justice, Canada.
66 UN Doc. S/25357 Feb. 22, 1993.
67 Report of the Secretary-General pursuant to paragraph 2 of United Nations Security Council Resolution 808 (1993), UN Doc. S/25704 May 3, 1993.
68 Ibid., 7.
69 Supra note 1, at 2.
70 Supra note 67, at 42.
71 Ibid., 21.
72 Ibid., 43–47.
73 The terms of the co-operative services agreement between the Government of Canada and the United Nations under which the services of the Canadian War Crimes Investigation Team were provided prohibits the disclosure of such information without the permission of the United Nations. As certain investigations were still outstanding at the time of writing, such permission could not be granted.
74 The two members were the author and Captain Serge Réne.
75 Physicians for Human Rights is a United States based non-governmental organization which has extensive experience in the exhumation and identification of the bodies of victims of human rights abuses. Their most notable work to date in identifying the bodies of a number of people who “disappeared” during the period of military dictatorship in Argentina. More recently they have been involved in substantiating human rights abuses during the Anfal campaign in Iraqi Kurdistan.
76 This information was provided in a letter from Dr.Simonovic, Ivan, Assistant Minister of Foreign Affairs, dated Mar. 10, 1993.Google Scholar
77 This database was developed for the team by Lieutenant-Colonel Jim Rycroft of the Office of the Judge Advocate General.