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Legal Effect of Rules of the International Criminal Tribunals and Court Upon Individuals: Emerging International Law of Direct Effect

Published online by Cambridge University Press:  21 May 2009

Shuichi Furuya
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The International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the pending International Criminal Court (ICC), have or will have competence to exercise their jurisdiction over individuals responsible for having committed crimes enumerated in the Statutes of the courts. From the viewpoint of the application of international law, this means that these Statutes can be applied directly to individuals without any intermediate provisions of domestic law. A person who commits crimes within the jurisdiction of the international criminal courts must account for those acts irrespective of whether the domestic law of his country or locus delicti so stipulates. Nor is it relevant to ask if the Statutes of these courts have domestic effect or are domestically enforceable whether by way of automatic incorporation or the adoption of implementing legislation.

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Netherlands International Law Review , Volume 47 , Issue 2 , August 2000 , pp. 111 - 145
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Copyright © T.M.C. Asser Press 2000

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References

2. Prosecutor v. Tinomir Blaškić, Prosecutor's Brief in Response to the Brief of the Republic of Croatia in Opposition to Subpoenae Duces Tecum, Case No. IT-95-14-AR108bis, 8 September 1997, p. 29 (hereinafter ‘Prosecutor's Brief’).

3. See Art. 7(1) of the ICTY Statute, UN Doc. S/RES/827 (25 May 1993, amended 13 May 1998), Art. 6(1) of the ICTR Statute, UN Doc. S/RES/955 (8 November 1994) and Art. 25(2) of the ICC Statute, UN Doc. A/CONF. 183/9 (adopted 17 July 1998, corrected 10 November 1998 and 12 July 1999).

4. In this article, the term ‘international criminal courts’ is used to describe the ICTY, the ICTR and the ICC as a whole.

5. Morris and Scharf clearly pointed out as follows: ‘The prohibition of the criminal conduct, the individual criminal responsibility incurred by the perpetrator and the authority to punish the perpetrator of such a crime are the direct result of international law. The imposition of criminal responsibility by virtue of international law does not require and cannot be precluded by national law.’ Morris, V. and Scharf, M. P., An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 2 (New York, Transnational Publishers 1995) p. 92.Google Scholar

6. The ICTR in the Kanyabashi case, however, found that the Security Council provided an important innovation when it established two ad hoc Tribunals and explicitly extended international legal obligations and criminal responsibilities directly to individuals for violations international humanitarian law. Prosecutor V. Joseph Kanyabashi, Decision on the motion challenging the jurisdiction of the Tribunal, Case No. ICTR-96-15-T, 18 June 1997, para. 35, reprinted in 18 Human Rights LJ (1997) p. 343 at p. 346.

7. ‘That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized … the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State.’ Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression, Opinions and Judgment (Washington, United States Government Printing Office 1947) p. 53.Google Scholar

8. Principle I of international law recognized in the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal provided as follows: ‘Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.’ Report of the International Law Commission to the General Assembly, UN Doc. A/1316, ILC Yearbook (1950–11) p. 374 (hereinafter ‘ILC Report’).

9. In fact, most of the textbooks deal with this issue merely in the chapters concerning status of individuals or subject of international law. The only exception is Brownlie's textbook that briefly mentions it in the chapter of the relation of municipal and international law. Brownlie, I., Principles of Public International Law, 5th edn. (Oxford, Oxford University Press 1998) p. 36.Google Scholar

10. In this article, unless mentioned otherwise, the term of ‘rules’ includes all legal prescriptions pertaining to the ICTY, ICTR and ICC, such as their Statutes, Rules of Procedure and Evidence and other Rules, and specific orders or requests issued by a Chamber or a single judge of the Tribunals and the Court.

11. See, e.g., Rule 4 (b) and (c) of the Rules of Procedure of the International Military Tribunal (adopted 29 October 1945), reproduced in Nazi Conspiracy and Aggression, supra n. 7, Supplement A, p. 1 at p. 2.

12. M.C. Bassiouni characterizes the direct and indirect schemes as follows: (1) the direct enforcement scheme which recognizes the establishment of an international criminal court, and (2) the indirect enforcement scheme which relies upon the processes of extradition, prosecution, and judicial assistance for the enforcement of international proscriptions. Bassiouni, M.C., ‘The Penal Characteristic of Conventional International Criminal Law’, 15 Case Western Reserve JIL (1983) p. 27.Google Scholar

13. ILC Report, supra n. 8, at p. 374.

14. ibid., at pp. 374–375.

15. Although the concept of ‘self-executing treaty’ is very equivocal, it can be defined in general as a treaty some or all of whose provisions have a status of applicable domestic law without any legislation or other measures and is enforced as such by national authorities, particularly by national courts. As to this concept, see T. Buergenthal, ‘Self-Executing and Non-Self-Executing Treaties in National and International Law’, 235 Recueil des Cows (1992–IV) p. 303 at p. 317; CM. Vazquez, ‘The Four Doctrine of Self-Executing Treaties’, 89 AJIL (1995) p. 695; Y. Iwasawa, ‘The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis’, 26 Virginia JIL (1986) p. 627; Bleckmann, A., ‘Self-executing Treaty Provisions’, in Encyclopedia of Public International Law, Vol. 7 (Amsterdam, North-Holland Publishing Company 1985) p. 414.Google Scholar

16. In the context of EU law, the term ‘direct applicability’ means that there is no need of incorporation procedure by the Member States for a rule to have the status of domestic law. Further, the term ‘direct effect’ means that a rule is enforceable by individuals before their national courts without any further implementing measures. See J.A. Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law’, 9 CML Rev. (1972) p. 425; J. Steiner, ‘Direct Applicability in EEC Law – A Chameleon Concept’, 98 LQR (1982) p. 229; P. Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’, 8 European Law Review (1983) p. 155.

17. K. Oellers-Frahm, ‘Cooperation: The Indispensable Prerequisite to the Efficiency of International Criminal Tribunals’, Proceedings of the 89th Annual Meeting of ASIL (1995) p. 304 at p. 305. See also H. Owada, ‘International Organizations and National Law’, Proceedings of the 89th Annual Meeting of ASIL (1995) p. 255 at p. 256; Bassiouni, M. C. and Manikas, P., The Law of the International Criminal Tribunal for the Former Yugoslavia (New York, International Publishers 1996) pp. 775–776.Google Scholar

18. Buergenthal, loc. cit. n. 15, at p. 317; Iwasawa, loc. cit. n. 15, at pp. 651–652.

19. Iwasawa, Y., Joyaku no Kokunai Tekiyou Kanosei: lwayuru ‘Self-executing’ na Joyaku ni Kansuru Ichi Kosatsu [Domestic Applicability of Treaties: What Are ‘Self-Executing’ Treaties?] (Tokyo, Yuhikaku 1985) p. 171.Google Scholar

20. B. Conforti, International Law and the Role of Domestic Legal Systems (Dordrecht, Nijhoff 1993) p. 35; C.H. Schreuer, ‘Th e Relevance of United Nations Decisions in Domestic litigation’, 27 ICLQ (1978) p. 1. As to the practices of domestic application of resolutions of international organizations, R.A. Brand, ‘Security Council Resolutions: When Do They Give Rise to Enforceable Legal Rights? The United Nations Charter, the Byrd Amendment and a Self-Executing Treaty Analysis’, 9 Cornell ILJ (1976) p. 298; E. Roucounas, ‘L'Application du Droit Dérivé des Organizations Internationales dans l'Ordre Juridique Interne’, in Eisemann, P.M., ed., L'Intégration du Droit International et Communautaire dans l'Ordre Juridique National (The Hague, Kluwer Law International 1996) p. 39, and National Reports (Germany, Belgium, Denmark, Spain, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, United Kingdom and Switzerland) contained in the same book, pp. 69–570; G. Guillaume, ‘L'Introduction et l'Exécution dans les Ordres Juridiques des États des Résolutions du Conseil de Sécurité des Nations Unies Prises en Vertu du Chapitre VII de la Charte’, 50 Revue Internationale de Droit Comparé (1998) p. 539.Google Scholar

21. This does not mean that any analogy with EU law is incorrect. As a matter of fact, Art. 249 (former Art. 189) of the Treaty establishing the European Community lays down that a decision, taken by the European Parliament acting jointly with the Council, the Council and Commission, shall be binding in its entirety upon those to whom it is addressed. Decisions can be addressed to individuals as well as Member States. At the European Community level, the decision extends its effect directly to the individual and is enforceable as such (Art. 256 (former Art. 192)). In addition, Art. 230 (former Art. 173) allows any person to institute proceedings against a decision addressed to that person before the European Court of Justice. In this sense, effect of decisions under EU law is quite akin to the direct effect of the rules of international criminal courts. However, according to jurisprudence of the European Court, the decisions can also have ‘direct effect’ in the sense of EU law, which can be invoked by individuals before national courts. See, for example, Case 9/70, Franz Grad v. Finanzamt Traunstein, [1970] ECR p. 825 at p. 837. This is a special character of a decision under EU law system, which the rules of the international criminal courts do not have.

22. Most states, which have so far enacted implementing legislation for responding to their obligations under the Statute, seem to assume that the rules of the ICTY are not self-executing within their legal system. However, Spain exceptionally declares that ‘much of the Statute is self-executing’ in relation to her implementing legislation. See para. 5 of the Statement of Reasons preceding the Organization Act 15/1994 of 1 June 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 (hereinafter ‘Spanish legislation’), reprinted in Amnesty International, International Criminal Tribunals: Handbook for Government Cooperation, Supplement Two, IOR 40/08/96, August 1996.

23. The Secretary-General remarked that ‘[i]t is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights.’ Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808(1993), Doc. S/25704, 3 May 1993, para. 106 (hereinafter ‘Secretary-General's Report’). The Appeals Chamber also held that ‘[t]he fair trial guarantees in Article 14 of the International Covenant on Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute.’ Prosecutor v. Duško Tadić a/k/a ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, para. 46.

24. Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. IT/32/Rev. 17 (adopted on 11 February 1994, revised on 30 November 1999).

25. Prosecutor v. Zejnil Delalić, Zdravko Mucić a/k/a ‘Pavo’, Hazim Delić and Esad Landžo a/k/a ‘Zenga’, Decision on Zdravko Mucic's Motion for the Exclusion of Evidence, Case No. IT-96-21-T, 2 September 1997 (hereinafter ‘Čelebići Decision'). As to this case, see Klip, A. and Sluiter, G., eds., Annotated Leading Cases of International Criminal Tribunals (Antwerp, Intersentia 1999) pp. 242–243.Google Scholar

26. Rule 42(B) reads: ‘Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived the right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.’

27. Čelebići Decision, supra n. 25, at para. 22.

28. ibid., at para. 50.

29. On 3 November 1999, the Appeals Chamber of the ICTR (common to the ICTY) ordered the immediate release of the accused who had been in custody in Cameroon as a suspect for more than seven months until he transferred to the ICTR. Pursuant to Rule 40 bis of the ICTR's Rules of Procedure and Evidence, the total period of provisional detention of a suspect shall not exceed 90 days from the day after the transfer of the suspect to the detention unit of the ICTR. Although, in this case, the suspect has been detained in Cameroon for an undue long period before the transfer, the Appeals Chamber found that Cameroon was holding him in constructive custody for the ICTR by virtue of the ICTR's lawful process or authority so that Rule 41 bis can apply to the pre-transfer detention by the Cameroonian authorities. Jean-Bosco Barayagwiza v. The Prosecutor, Decision, Case No. ICTR-97-19-I, 3 November 1999, paras. 54–67. See also Separate Opinion of Judge Shahabuddeen, Sections 4 and 5.

30. However, there are some rights, which may have direct effect, but would substantially make no sense unless they are enforceable before national courts by way of implementing legislation or recognition of their self-executing nature. For example, Art. 10 of the Statute provides for non-bis-in-idem. According to this provision, no person shall be tried before a national court for acts under the jurisdiction of the ICTY if he or she has already tried by the ICTY. Conversely, a person who has been tried by a national court shall not be tried again by the ICTY except the cases set out para. 2(a) and (b). As to the latter case, the ICTY has an obligation to prevent the person concerned being tried again and, as a matter of course, he or she can claim his or her right not to be tried again against the ICTY. Actually, the Trial Chamber Q found that ‘[t]he principle [non-bis-in-idem] is binding upon this International Tribunal to the extent that it appears in Statute, and in the form that it appears there.’ Prosecutor v. Duško Tadić a/k/a ‘Dule’, Decision on the Defence Motion on the Principle of Non-Bis-In-Idem, Case No. IT-94-1-T, 14 November 1995, para. 9. As to the former case, however, it may be difficult for the person to claim not to be tried again by a national court only on the grounds of this provision. The national court would require a basis under domestic law for rejecting such trial.

31. Under Rule 55(D), an arrest warrant is initially transmitted to the specific states concerned. An international arrest warrant, which is transmitted to all states, is issued after the special procedure provided for in Rule 61, which is invoked when an initial arrest warrant has not been executed within a reasonable time. Recently, however, this distinction is blurred so that an initial arrest warrant can be transmitted to all states under a certain condition. See Prosecutor v. Slobodan Milošević, Milan Milutinović, Nikola Šainović, Dragoljub Ojdanić and Vlajko Stojiljković, Decision on Review of Indictment and Application for Consequential Orders, Case No. IT-99-37,24 May 1999, paras. 21–23. As a critical comment on the measures taken in this case, see Shuichi Furuya, ‘Rule 61 Procedure in the International Criminal Tribunal for the Former Yugoslavia: A Lesson for the ICC’, 12 Leiden JIL (1999) pp. 668–669.

32. Prosecutor v. Mile Mrksić, Miroslav Radić, Veselin Šljivančanin, Slavko Dokmanović, Decision on the Motion for Release by the Accused Slavko Dokmanović, Case No. IT-95-13a-PT, 22 October 1997 (hereinafter ‘Dokmanović Decision'). See G. Sluiter, ‘Recent Developments in Securing the Presence of Indicted War Criminals Before the Ad Hoc Tribunals: The Case of Ntakirutimana and Dokmanovic’, 21 SIM Special (1998) p. 369 at pp. 380–384; M.P. Scharf, ‘The Prosecutor v. Slavko Dokmanović: Irregular Rendition and the ICTY’, 11 Leiden JIL (1998) p. 369.

33. Dokmanović Decision, supra n. 32, at paras. 15 and 34.

34. ibid., at para. 35.

35. ibid., at para. 40.

36. Rule 59 bis, which was adopted in January 1996, provides for transmission of arrest warrants to an appropriate authority or international body. The main purpose of this revision was to submit arrest warrants to the NATO-led International Implementation Force (IFOR) deployed in Bosnia and Herzegovina. See Jones, J.R.W.D., The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (New York, Transnational Publishers 1998) p. 207.Google Scholar

37. Implementing legislation of some states actually allows their authorities to execute directly an arrest warrant issued by the ICTY. See Art. 9, the Act No. 95–1 of 2 January 1995 adapting French legislation to the provisions of United Nations Security Council resolution 827 establishing an international criminal tribunal to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991; Art. 6(1), Spanish legislation, supra n. 22; Section 6, the Act relating to the Establishment of an International Tribunal for Trial of Crimes Committed in former Yugoslavia, SFS 1994:569,13 June 1994 (Sweden), reprinted n i Amnesty International, supra n. 22.

38. Art. 11, Decree with Force of Law on Deferral upon Request by the International Tribunal (10 April 1995), reprinted ibid.

39. As to the power and obligation of the SFOR to arrest accused persons, P. Gaeta, ‘Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?’, 9 EJIL (1998) pp. 176–180; J.R.W.D. Jones, ‘The Implication of the Peace Agreement for the International Criminal Tribunal for the former Yugoslavia’, 7 EJIL (1996) pp. 238–240.

40. Rule 54 reads: ‘At the request of either party or proprio mutu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.’

41. Prosecutor v. Duško Tadić a/k/a ‘Dule’, Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-link, Case No. IT-94-1-T, 25 June 1996, para. 7.

42. Prosecutor v. Tihomir Blaškić, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Case No. IT-95-14-T, 18 July 1997 (hereinafter ‘Blaškić Subpoena Decision’). As to this decision, see G. Hafner, ‘limits to the Procedural Powers of the International Tribunal for the Former Yugoslavia’, in Wellens, K., ed., International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague, Nijhoff 1998) p. 651 at pp. 658–670.Google Scholar

43. Blaškić Subpoena Decision, supra n. 42, at para. 65. Rule 98 reads: ‘It [a Trial Chamber] may itself summon witnesses and order their attendance’ and Rule 105(C) stipulates, in relation to a special hearing to determine the matter of restitution of the property, that ‘[s]uch third parties shall be summoned before the Trial Chamber and be given opportunity to justify their claim to the property or its proceeds.’ As to the national implementing legislation, for instance, the Trial Chamber mentioned the Austrian law, Section 11(1) of which provides that ‘[t]he International Tribunal shall have the authority to forward a summons and other documents to persons in Austria directly by post.'

44. ibid., at para. 69.

45. ibid., at para. 69.

46. Prosecutor v. Tihomir Blaškić, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber H of 18 July 1997, Case No. IT-95-14-AR108 bis, 29 October 1997 (hereinafter Blaškić Appeals Judgment'). As to this judgment, see Y. Nouvel, ‘Précisions sur le Pouvoir du Tribunal pour I'Ex-Yougoslavie d'Ordonner la Production des Preuves et la Comparution des Temoins: L'Arrêt de la Chambre d'Appel du 29 Octobre 1997 dans 1'Affaire Blaskić’, 102 Revue Génerate de Droit International Public (1998) p. 157; R. Wedgwood, ‘International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaškić’, 11 Leiden JIL (1998) p. 635; Klip and Sluiter, op. ciL n. 25, at pp. 282–285.

47. Blaškić Appeals Judgment, supra n. 46, at para. 47.

48. ibid., at para. 48.

49. ibid., at para. 38.

50. ibid., at para. 41.

51. ibid., at para. 43.

52. J. Crawford, ‘International Law and International Crimes: Comments on a Developing Relationship’, in Societa Italiana di Diritto Internazionale, ed., Cooperazione Fra Statià Giustizia Penale Internationale, III Convegno Siena 12-13 giugno 1998 [Estratto] (Napoli, Editoriale Scientifica 1999) p. 157.

53. Actually, the Trial Chamber found that ‘it is clear that States are obliged to comply with requests for assistance as well as orders of the International Tribunal.’ Blaškić Subpoena Decision, supra n. 42, at para. 65.

54. However, Wedgwood emphasizes the crucial function of a custodian of documents at trial and criticizes the finding of the Appeals Chamber. Wedgwood, loc. cit. n. 46, at p. 650.

55. The Appeals Chamber excluded the following kinds of state officials: (1) a state official who witnessed a crime before he took office, or found given evidentiary material prior to the initiation of his official duties; (2) a state official who was not actually exercising his function and looked at or heard a crime; (3) a state official who acts as a member of an international peace-keeping or peaceenforcement force such as UNPROFOR, IFOR or SFOR; (4) a state officials who refuses to surrender evidence in spite of his government order to do so. Blaškić Appeals Judgment, supra n. 46, at paras. 49–51.

56. For example, the Appeals Chamber treats a member of IFOR or SFOR as an individual, even when he witnesses a war crime while performing his official functions, because ‘[s]uch an officer is present in the former Yugoslavia as a member of an international armed force responsible for maintaining or enforcing peace and not qua a member of the military structure of his own country’ (ibid., at para. 50). However, it is not persuasive that international structure of military force change the availability of the officer as an eye-witness. According to the traditional rule of responsibility, his act as an officer cannot be regarded as his private one, but should be attributed to his own country or to the NATO.

57. ibid.

58. Crawford, op. cit. n. 52, at pp. 156–157.

59. Prosecutor v. Dražen Erdemović, Sentencing Judgement, Case No. IT-96-22-T, 29 November 1996, para. 71 (emphasis original).

60. See para. 10 of the Preamble, Art. 1 and Art. 17 of the ICC Statute.

61. Blaškić Appeals Judgment, supra n. 46, at para. 48.

62. In the Tadić case, the Trial Chamber pointed out in regard to interpretation of the Statute as follows: ‘Although the Statute of the International Tribunal is a sui generis legal instrument, and not a treaty, in interpreting its provisions …, the rules of treaty interpretation contained in the Vienna Convention on the Law of Treaties appears relevant. Article 31 of the Vienna Convention states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ (emphasis added). Prosecutor v. Duško Tadić a/k/a ‘Dule’, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94-1-T, 10 August 1995, para. 18.

63. In this respect, the following remark by the Permanent Court of International Justice (PCIJ) is quite suggestive: ‘It may be readily admitted that, according to a well established principle of international law, the Beamtenabkommen, being an international agreement, cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts…. The intention of the Parties, which is to be ascertained from the contents of the Agreement … is decisive’ (emphasis added). Jurisdiction of the court ofDanzig, PCIJ Series B, No. 15, 3 March 1928, pp. 17–18. Although it is apparent that in this case, the PCIJ bore in mind the domestic application of international law, its basic proposition appears to apply to the determination of whether a treaty or a resolution of an international organization creates direct effect over individuals. Actually, Allain Pellet, in his Amicus Curiae brief submitted to the Trial Chamber, explicitly cited this Opinion and acknowledged the ICTY's power to issue orders directly addressed to individuals. Prosecutor v. Tinomir Blaškić, Brief Amicus Curiae of Mr. Allain Pellet, for Juristes sans Frontières, Case No. IT-95-14-PT, 11 April 1997, p. 15.

64. In the ICTY, there was a case that a defense counsel handed summonses directly to witnesses. See Blaškić Appeals Judgment, supra n. 46, at para. 55, fn. 76.

65. Art. 93(1)(k) and Art. 109 exclude properties and proceeds of bona fide third parties from the objects of restitution and compensation to victims. Unlike the ICTY, therefore, an order issued by the ICC cannot extend its effect on bona fide third parties. This suggests, on the other hand, that such order can be issued to mala fide third parties, who are occupying the properties of victims with the knowledge that they were deprived as the result of crimes.

66. See Art. 7(2) of the ICTY Statute, Art. 6(2) of the ICTR Statute and Ar t 27 of the ICC Statute.

67. Prosecutor v. Tihofil also known as Tihomir Blaškić, Decision of the President on the Defence Motion Filed Pursuant to Rule 64, Case No. IT-95-14-T, 3 April 1996, para. 7 (emphasis added).

68. See Polish Nationals in Danzig, PCU Series A/B, No. 44 (1931), p. 24; Art. 27 of the Vienna Convention on the Law of Treaties.

69. Transcript, Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, 22 September 1997, pp. 118-119, cited in Blaškić Appeals Judgment, supra n. 46, at para. 55.

70. In the Čelebćc Decision, the Trial Chamber found that Austrian procedural rule as to questioning ‘is in direct contradiction of Article 18 of the Statute and Rule 42 of the Rules of Procedure and Evidence …’ (Čelebćc Decision, supra n. 25, at para. 50). In the Blaškić Appeals Judgment, the Appeals Chamber also pointed out that ‘[t]hose instruments of national implementing legislation, such as the laws passed by Australia and New Zealand, …, do not seem to be fully in keeping with the Statute’ (Blaškić Appeals Judgment, supra n. 46, at para. 66). Neither Chamber, however, did not find these domestic laws invalid on the domestic plane.

71. Fitzmaurice, G., ‘The General Principles of International Law: Considered from the Standpoint of the Rule of Law’, 92 Recueil des Cours (1957- II) p. 1 at p. 68.Google Scholar

72. The then President Cassese stated: ‘[t]his obligation is such that States are in breach of it not only when they are confronted with a specific situation whereby they cannot execute arrest warrants or orders of the Tribunal, but even before this possible occurrence, by failing to pass implementing legislation (if such legislation was needed under national law) It follows that, since 1993, all States have been under an unquestionable obligation to enact any implementing legislation necessary to permit them to execute warrants and requests of the Tribunal … ’ Decision of the President, supra n. 67, at para. 8.

73. See, for example, Prosecutor v. Tihomir Blaškić, Decision of Trial Chamber I on the Appearance of Colonel Robert Stewart, Case No. IT-95-14-T, 25 March 1999, operative para. 9; Decision of Trial Chamber I in Respect of the Appearance of General Philippe Morillon, 25 March 1999, operative para. 9.

74. See Blaškić Appeals Judgment, supra n. 46, at para. 54.

75. See Prosecutor's Brief, supra n. 2, at pp. 14–15.

76. Under Rule 90(F), a witness has a privilege against self-incrimination. It is not clear, however, whether this provision may protect him not only from the incrimination before the ICTY but also from the incrimination before a national court on account of his violation of a conflicting domestic law.

77. Blaškić Subpoena Decision, supra n. 42, at para. 95.

78. As mentioned, according to the Blaškić Appeals Judgment, a state official who acts as a member of an international peace-keeping force is categorized into ‘individuals acting in their private capacity’ to whom the ICTY can issue an order directly. See n. 55.

79. Prosecutor v. Tihomir Blaškić, Decision of Trial Chamber I on Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, Case No. IT-95-14-T, 12 May 1999, p. 2. Before this case, Nouvel has pointed out the possibility that French law would give rise to a conflict of obligations on French soldiers who served in the peace-keeping forces in Bosnia-Herzegovina. Nouvel, loc. cit. n. 46, at p. 164.

80. Decision of Trial Chamber I, supra n. 79, at p. 5.

81. See Arts. 89(1), 93(1) and 99(1) of the ICC Statute.

82. See Arts. 89(2) and (4), 91(4), 93(3) and 99(4)a) and (b).

83. BlaškićAppeals Judgment, supra n. 46, at para. 53.

84. ibid., at para. 55. In Prosecutor v. Dario Kordić and Mario Čerkez, the defence counsel of Kordic argued it illegal for the Prosecutor to take direct enforcement action in the form of search and seizure operations in the Federation of Bosnia and Herzegovina without its consent and with no relying on the Bosnian law on Cooperation with the ICTY. To this claim, the Trial Chamber found that ‘the power of the Prosecution to conduct investigations is clearly provided for in the Statute under Article 18, paragraph 2; furthermore, Rule 39 provides that “[i]n the conduct of an investigation, the Prosecutor may … seek, to that end, the assistance of any State authority concerned”, which does not mean that she is obliged to do so under any circumstances’ (emphasis original). Prosecutor v. Dario Kordić and Mario Čerkez, Decision Stating Reasons for Trial Chamber's Ruling of 1 June 1999 Rejecting Defence Motion to Suppress Evidence, Case No. IT-95-14/2-PT, 25 June 1999, p. 3.

85. BlaškićAppeals Judgment, supra n. 46, at para. 55.

86. ibid., at para. 53.

87. Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess. Supp. No. 10, UN Doc. A/49/10 (1994), p. 46.

88. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995), para. 197.

89. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1, UN GAOR, 51st Sess. Supp. No. 22, UN Doc. A/51/22 (1996), paras. 226–227.

90. Report of the Working Group on Procedural Matters, Decisions taken by the Preparatory Committee at its Session held from 4 to 15 August 1997, Annex n, p. 15. In this draft provision, an option was put in square brackets.

91. Art. 54(4)(c), Option 2 (i)(b), Draft Statute for the International Criminal Court, in Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF. 183/2/Add. 1 (14 April 1998), p. 76.

92. C. Tomuschat, ‘International Law’, in Tomuschat, C., ed, The United Nations at Age Fifty: A Legal Perspective (The Hague, Kluwer Law International 1995) p. 281 at p. 303.Google Scholar

93. In fact, the situation in Rwanda was reported to be just like this. ‘Along with the overall destruction of Rwanda in the spring of 1994 came the devastation of Rwanda's judicial structures. The great majority of judicial and law enforcement personnel had been killed or fled the country. Moreover, the basic resources needed to run a legal system – books, vehicles, even paper – were essentially unavailable.’ M.H. Morris, ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’, 7 Duke Journal of Comparative and International Law (1997) p. 349 at p. 353.

94. B. Swart and G. Sluiter, ‘The International Criminal Court and International Criminal Cooperation’, in von Hebel, H.A.M., Lammers, J.G. and Schukking, J., eds., Reflections on the International Criminal Court; Essays in Honour of Adriaan Bos (The Hague, T.M.C. Asser Press 1999) p.,91 at p. 92.CrossRefGoogle Scholar

95. ibid., at p. 115.

96. Hafner, op. cit. n. 42, at p. 661.

97. Nazi Conspiracy and Aggression, Opinions and Judgment, supra n. 7, at p. 51.