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Violations of international humanitarian law and measures of repression: the International Tribunal for the former Yugoslavia

Published online by Cambridge University Press:  13 January 2010

Juan José Quintana
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Extract

The International Conference for the Protection of War Victims, held in Geneva from 31 August to 1 September 1993, urged all States to make every effort to

“ensure that war crimes are duly prosecuted and do not go unpunished, and accordingly implement the provisions on the punishment of grave breaches of international humanitarian law and encourage the timely establishment of appropriate international legal machinery …”.

Type
Repression of Breaches of International Humanitarian Law
Information
International Review of the Red Cross (1961 - 1997) , Volume 34 , Issue 300 , June 1994 , pp. 223 - 239
Copyright
Copyright © International Committee of the Red Cross 1994

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Footnotes

*

Original: Spanish — March 1994. The opinions expressed in the present article are entirely personal and do not necessarily reflect the views of the Colombian Government or Ministry of Foreign Affairs.

References

1 Final Declaration of the Conference, Part II, para. 7. The text is to be found in the International Review of the Red Cross, No. 296, 09–10 1993, p. 379 Google Scholar. For consideration of the topic by the participants in the Conference, see ibid., p. 375, pp. 436 ff.

2 Vienna Declaration and Programme of Action, Part II, para. 92 (Doc. A/CONF. 157/23 of 12 July 1993).

3 For the background to this question, see “The work of the International Law Commission”, 4th ed., United Nations, New York, 1988, pp. 28, 34 and 121 Google Scholar. For current treatment of the subject, see the reports of the Commission on its proceedings during the 44th and 45th sessions (Doc. A/47/10, 1992; and A/48/10, 1993).

4 Referred to hereinafter as “IHL”.

5 Document S/25274 of 9 February 1993. At the same time, the French government sent a letter to the President of the Security Council, attaching an important document on this topic, namely the report of the Committee of Jurists set up by the French Minister for Foreign Affairs to study the establishment of an international criminal tribunal for the former Yugoslavia. The Committee, consisting of eight distinguished French jurists, had been established on 16 January. The rapporteur was Professor Alain Pellet (Doc. S/25266, 10 February 1993; referred to hereinafter as “Committee of Jurists, Report”).

6 Report presented by the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), 3 May 1993, Doc. S/25704 and Annex (referred to hereinafter as “Report of the Secretary-General”).

7 London agreement of 8 August 1945 for the prosecution and punishment of the major war criminals of the European Axis ( UN Treaty Series, Vol. 82, No. 251)Google Scholar. However, it should be noted that the Charter of the International Military Tribunal for the Far East was approved directly on 19 January 1946 by the then Supreme Allied Commander.

8 The Committee of French Jurists gave three reasons why it would not be appropriate to establish the Tribunal by means of a treaty (Committee of Jurists, Report, p. 10. para. 28).

9 Report of the Secretary-General, p. 7, paras. 19–23.

15 The Report on the Protection of War Victims, drawn up by the ICRC in June 1993 and presented to the Geneva Conference, was very clear on this point: supra, note 1, p. 437.

16 Report of the Secretary-General, p. 8, para. 29.

17 The Committee of Jurists favoured a total of 15 judges, plus the members of the so-called “Commission for Investigation and Prosecution”, which, in this plan, would carry out the prosecutory role (Committee of Jurists, Report, p. 44, paras. 164–169).

18 The list of judges elected, according to geographical distribution, is as follows (for the relevant biographical profiles, see Document A/47/1006 of 1 September 1993): Western Europe and other States: Antonio Cassese (Italy), Jules Deschênes (Canada), Germain Le Foyer de Costil (France), Gabrielle Kirk McDonald (United States of America), Ninian Stephen (Australia); Africa: Georges Michel Abi-Saab (Egypt), Adolphus Godwin Karibi-Whyte (Nigeria); Asia: Li Haopei (China), Lai Chand Vohrah (Malaysia), Rustam S. Sidhwa (Pakistan); Latin America and Caribbean: Elizabeth Odio Benito (Costa Rica).

19 The Committee of Jurists favoured a considerably more complex solution, in which the judges would be elected by four existing jurisdictions, namely the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights and the African Commission on Human and Peoples' Rights. If this system encountered resistance, the Committee proposed that the Security Council could elect the members from lists of candidates submitted by these four bodies (Committee of Jurists, Report, pp. 45–46, paras. 170–175).

20 The last paragraph of the preamble to resolution 827 (1993) stipulates that, pending the appointment of the Prosecutor, the Commission of Experts established pursuant to resolution 780 (1992) “should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report”. On this point, see Committee of Jurists, Report, pp. 27–28, paras. 102–103. The person finally appointed as Prosecutor was the jurist Ramon Escobar Salom.

21 As mentioned above, in the plan proposed by the Committee of Jurists, the Prosecutor would be replaced by a Commission for Investigation and Prosecution, consisting of five members of the Tribunal appointed in the same way as other Tribunal members, i.e. the judges (Committee of Jurists, Report, pp. 46–47, paras. 177–180).

22 Report of the Secretary-General, p. 23, para. 90.

23 The statement of the delegate of the United States, approving the Statute, also refers to the two Additional Protocols of 1977 but in the context of another category of acts: violations of “the laws or customs of war” (supra, note 10, pp. 14–15).

24 Report of the Secretary-General, p. 11, para. 41.

25 Opinion on Reservations to the Genocide Convention, ICJ Reports 1951, p. 23.Google Scholar

26 Case concerning Application of the Convention on the Prevention and Repression of the Crime of Genocide, Order of 8 04 1993 Google Scholar, ICJ Reports 1993, p. 3 Google Scholar. On 27 July 1993. Bosnia-Herzegovina presented a new request for provisional measures, which was under consideration by the Court when this article was being prepared.

27 According to available information, no State has yet invoked Article 63 of the Statute of the Court in this case.

28 Report of the Secretary-General, p. 13, para. 47 and note 9.

29 Report of the Secretary-General, p. 13, para. 48.

30 On this aspect, see Committee of Jurists, Report, pp. 23–25, paras. 82–96.

31 Report of the Secretary-General, p. 16, para. 62. After lengthy reflection, the Committee declared itself in favour of a later date, namely 25 June 1991, which it considered to be “more neutral” (Committee of Jurists, Report, pp. 22–23, paras. 74–81).

32 For a discussion of this point, see Committee of Jurists, Report, pp. 36–37, paras. 132–137.

33 One of the main paragraphs of resolution 827 (1993) requested the Secretary-General to submit to the judges of the Tribunal any suggestions received from States for the rules of procedure and evidence. The judges are empowered to adopt such rules under Article 15 of the Statute.

34 The Report of the Committee of Jurists provided only for “revision” by the International Court of Justice or a special Court of Revision composed of the Presidents of the four specialized jurisdictions referred to above (supra, note 19), in relation to the appointment of candidates for membership of the Tribunal (Committee of Jurists, Report, pp. 38–40, paras. 141–153.

35 Report of the Secretary-General, p. 31.

36 Pursuant to Article 32 of the Statute, the expenses of the Tribunal will be borne by the regular budget of the United Nations. For the immediate period, one of the items on the agenda for the 48th session of the General Assembly was to be the financing of the Tribunal. The Advisory Committee on Administrative and Budgetary Questions requested the Secretary-General to prepare a report on this subject for presentation to the Assembly (Doc. A/47/980, 22 July 1993).