LAW 503 International and Transnational Criminal Law and

LAW 503 International and Transnational Criminal Law and Procedure Assist. Prof. R. Murat ÖNOK 27. 09. 2013 - II

INDEX 1. The ad hoc Tribunals Established by the UN SC A. Intro B. Establishment of the ICTY and the ICTR 2. Was the establishment of the ICTY (and ICTR) lawful? A. Relevant provisions of the UN Charter B. Why the establishment of the tribunals was lawful C. ICTY’s own view D. Summary 3. ICTY A. Basic Documents B. Legal Status of the ICTY C. Structure of the ICTY D. Qualifications and election of judges E. The Office of the Prosecutor F. The Registry

INDEX G. Jurisdiction of the ICTY H. Relationship with national criminal jurisdiction I. General Principles of Criminal Law J. Investigation, Prosecution, and Enforcement of Sentences K. Co-operation with the ICTY L. ICTY’s Activity M. ICTY- Assessment 4. ICTR A. Events Leading to the Establishment of the ICTR B. Basics C. Legitimacy of the ICTR D. Characteristics of the ICTR E. Jurisdiction F. ICTR’s Activity G. Assessment 5. ‘The Mechanism’

1. The ad hoc Tribunals Established by the UN SC

A. Intro • Two international criminal tribunals were established in 1993 and 1994. • The first one, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (ICTY) holds special importance because it was the first court entrusted with holding int’l. criminal trials 48 years after the Nuremberg and Tokyo experience. • Furthermore, the ICTR created the next year mirrors the ICTY. • Both tribunals set a precedent and a reference for the future permanent ICC. In particular, the successful operation of the ICTY was a catalyst to the establishment of the ICC.

B. Establishment of the ICTY and ICTR • The widespread and grave violations of human rights committed during the war by rival ethnic groups throughout the territory of the former Yugoslavia had caused the reaction of the world community. • The UN and the great states had made a weak effort in preventing the conflict and the related atrocities, hence they tried to make up by prosecuting the perpetrators, thus realizing justice and peace. • For that purpose, various UN SC Resolutions adopted throughout the conflict set the legal basis for the establishment of a tribunal. In chronological order, these resolutions are the following: - UN SC Res. 713 (25. 9. 1991): It was determined that the continuation of the situation constituted a threat to int’l. peace and security; - UN SC Res. 764 (13. 7. 1992): It was reaffirmed that all parties are bound to comply with the obligations under IHL and in particular the Geneva Conventions of 1949, and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches.

- UN SC Res. 771 (13. 8. 1992):

- UN SC Res. 780 (6. 10. 1992):

• The Commission created through Res. 780 was an int’l. fact-finding body as envisaged under Art. 90 of the Add. Prot. I (1977) to the 1949 Geneva Conventions. • The novelty is that, contrary to the understanding of the article in question, the commission was established without the explicit consent of the States involved. • The Commission could not obtain significant State support, materially or financially, but under the chairmanship of C. Bassiouni it managed to obtain financing from private resources. • The Commission succeed in gathering important evidence and it reported on its findings in 1994.

- UN SC Res. 808 (22. 2. 1993):

• In SC Res. 808, the UN SG was also instructed to examine whether the establishment of such tribunal would have a basis in law, and, if so, to formulate an appropriate statute. • The report prepared by the SG was in the affirmative and included the requested statute. • The SG recommended the creation of a tribunal by resolution (Report of the Secretary General Pursuant to Security Council Resolution 808 (1993), para. 20).

- UN SC Res. 827 (25. 5. 1993):

ICTR - Res. 955 (1994): “Acting under Chapter VII of the Charter of the United Nations, 1. Decides hereby, having received the request of the Government of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statute of the International Criminal Tribunal for Rwanda annexed hereto”. • Interestingly, Rwanda eventually voted against the Resolution because it did not have the control it meant over the Tribunal, and due to fact that the limited scope of temporal jurisdiction which did not include events occurring before January 1994 was unacceptable to the new gov’t (other factors: no death penalty included, unable to exclude crimes other than genocide from the Tribunal’s jurisdiction)

2. Was the establishment of the ICTY (and ICTR) lawful? • The first paragraph of the ICTY Statute, which is of introductory nature, states the following: “Having been established by the Security Council acting under Chapter VII of the Charter of the United Nations, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter referred to as “the International Tribunal”) shall function in accordance with the provisions of the present Statute. ” • As such, the ICTY is a subsidiary organ of the Security Council (UN Charter Art. 29). • The legal basis for the establishment of the court is Chapter VII of the UN Charter. The same holds true for the ICTR. That is why the explanations furnished below apply to both tribunals. • Chapter VII of the UN Charter is entitled «Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression» (Arts. 39 -51).

A. Relevant provisions of the UN Charter (Chapter VII) Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 40: In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. Article 41: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. • The remaining articles of the Chapter regard the implementation of these measures. • Thus, there is no explicit provision in Chapter VII granting the SC the power to establish a judicial organ. In fact, the SC itself has no judicial (or legislative) power with regard to preventing or ending a conflict. For these reasons, some writers argue that the establishment of the ICTY was ultra vires.

B. Why the establishment of the tribunals was lawful • • - - - The measures indicated in the above-mentioned articles are of an indicative nature, the articles do not provide for an exhaustive (numerus clausus) list. There is no doubt that the SC can resort to all measures that are adequate with a view to achieving world peace. The implied powers doctrine leads to the same conclusion. This refers to the degree of int’l. competence that is required to enable an int’l. organ to achieve its purposes. Even if certain competences are not explicitly stated in its constituent treaty, an organization may still enjoy those powers which are indispensable for the fulfilment of its duties and purposes. In other words, this doctrine suggests that organs of int’l. organisations may be deemed to possess all the powers necessary for the discharge of their powers and the fulfilment of the organisation’s goal, even when such powers are not clearly recognised by the constitutive instrument. The WHO case (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996) before the ICJ: “The necessities of international life may point to the need for organisations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organisations can exercise such powers, known as implied powers”. Since the Yugoslavian crisis endangered world peace, the power to intervene judicially by prosecuting the perpetrators of certain violations in order to reestablish peace should be granted to the SC.

• Another argument is based on Arts. 24 -5 of the UN Charter. - Art. 24 (1): In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. - Art. 25: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. - Therefore, the UN SC is entitled to take decisions on behalf of the member States, such decisions are binding, and states may not fail to comply with it. - However, this argument does not really address the «lawfulness» of the decision.

• • • - During the Gulf War, the SC, again acting under Chapter VII had set up the United Nations Compensation Commission in order to redress those victimized by the conflict. The Commission had the duty to decide on requests for compensation. As such, it had a judicial function too. No State ever objected to this power. Similarly, in the past, the UN GA created an administrative tribunal, and that action received approval by the ICJ in Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1954). If Chapter VII entitles the SC to authorize the use of military force, it has to be condeded that the Council is a fortiori allowed to authorize a measure which is not as coercive and exigent. (Criticism: you may not compare apples with pears!) Practical views: The UN, having failed to prevent the warfare and slaughters in Yugoslavia, could at least try those who were responsible for the atrocities and retrieve the credibility it depleted in the eyes of the global arena. Besides, concluding an international agreement in order to establish such a court, with regard to the preparation of its text, its ratification and coming into force, required a long process, and, in addition, there was no guarantee that all the relevant states would ratify it. However, the massacres committed by the Serbian had not come to an end a prompt, robust intervention was highly necessary. With this respect, establishment of a court with the interference of the Security Council via a resolution was deemed to be the only feasible solution.

C. ICTY’s own view • In the first case before the ICTY[1] the accused, Duško Tadić, submitted a preliminary motion challenging the Tribunal’s jurisdiction by arguing, inter alia, that the Tribunal was established in violation of the UN Charter and should decline to exercise jurisdiction. • The Trial Chamber refused to deal with the substance of the argument because it thought that the powers of the SC had to be scrutinised in order to make a determination, and this was not a matter of jurisdiction open to the determination of the Tribunal. • However, the Appeals Chamber made a full review by arguing that any judicial body had the inherent or incidental jurisdiction to determine its own competence (Kompetenz-Kompetenz). The Appeals Chamber rejected the argument of the defence and determined that Art. 41, because of its open-ended character, was the appropriate legal basis for the establishment of the tribunal. - You may also read Cryer et al. at 126 -8 for the other findings on this issue. [1] Duško Tadić- Case no. IT-94 -1 -AR 72.

D. Summary • The understanding that the establishment of the Tribunal was legitimate and within the powers granted to the SC is the prevailing view in academic writings. • The Hague District Court dealing with Milošević’s claim that the Netherlands is hosting an illegal organization also affirmed the evaluations and conclusion of the ICTY with regard to its legitimacy[1]. • Even more important, state practice also seems to be in firm support of the establishment of both ad hoc tribunals. • In sum, it would be fair to say that the establishment of the ICTY and the ICTR were a lawful exercise of the powers attributed to the UN SC by the UN Charter. [1] Slobodan Milošević tegen de Staat der Nederlanden, Arrondissementsrechtbank’s-Gravenhage, Sector Civiel Recht – President, Vonnis in kort geding van 31 augustus 2001 (rolnummer KG 01/975).

3. ICTY

Excursus: Events leading to the establishment of the ICTY • Optional reading (in Turkish) concerning the political history and ethnic-cultural structure of, and civil war in, the Former Yugoslavia: You may read Önok, Tarihi Perspektifiyle Uluslararası Ceza Divanı, Ankara, 2003, s. 55 -63. • “Hatta mahkemede tanık ve sair delillerle ispatlanmış bir olayda, bir dede, torununun ciğerini yemeye zorlanmış; diğer bir vakada, bir esir, üç arkadaşının cinsel organlarını dişleriyle parçalamaya zorlanmış; diğer bir örnekte ise(, ) 14 yaşındaki bir çocuk, annesine tecavüz etmek zorunda bırakılmıştır” (aktaran Önok, s. 61, dn. 216). • You may read the Brdanin case, para. 498 -499, 503, 508509, 512 et seq.

A. Basic Documents • Res. 808 (1993) envisaged the creation of the ICTY. However, it was Res. 827 (1993) that implemented such decision. • Indeed, Res. 827 meant the adoption of the Statute establishing the ICTY. As such, it determines the structure and competence of the tribunal. This is why it should be considered as the founding resolution. • The Statute adopted through Res. 827 (1993) defines the structure, competence, powers and procedure of the Court. It has been amended around 10 times. • The “Rules of Procedure and Evidence” which elaborate in detail the procedural rules governing the functioning of the Tribunal have been adopted on 11. 2. 1994, and have been amended tens of times.

• • There also some other documents which are important with regard to the operation of the Court: The Headquarter Agreement of 1994 between the UN and the Netherlands, National legislations implementing the ICTY Statute and regulating cooperation with the court, Agreements on the enforcement of sentences, The Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal Directive on Assignment of Defence Counsel, “Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal”. In addition there are many other documents: Regulations Regarding Visits to and Communications with Detainees, House Rules for Detainees, Regulations for the Establishment of a Complaints Procedure for Detainees, Regulations for the Establishment of a Disciplinary Procedure for Detainees, and many “practice directions” regarding procedural or enforcement issues (for example, the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal. ) As of March 2009, the Tribunal employed 1118 staff members from 82 different nationalities. That number dropped to 988 as of January 2011. As of September 2013, the ICTY employed 760 staff members representing 76 nationalities. The budget of the Tribunal is: 2002 -2003 = $ 223, 169, 800 // 2004 -2005 = $ 271, 854, 600 // 2006 -2007 = $ 276, 474, 100 // 2008 -2009 = $ 342, 332, 300 // 20102011: $ 301, 895, 900// 2012 -2013: $ 250, 814, 000.

B. Legal Status of the ICTY • It is an ad hoc tribunal; It is another instance of ex post facto justice. • Contrary to the Nuremberg and Tokyo tribunals, it is not a military court. • It is a subsidiary organ of the UN SC (Art. 29 UN Charter), as such, the Statute of the ICTY is binding upon every member of the UN (Art. 25 UN Charter) • However, as a judicial organ, the ICTY is independent from the SC (ICTY Trial Chamber, 18. 7. 1997, Blaškić case). • Because it has been established through a resolution of the UN SC, all UN member states are under certain obligations with regard to the ICTY. In that sense, the tribunal has some supranational powers. • The Statute of the ICTY (and of the ICTR) is equated by the Tribunal itself to an int’l treaty. Academic writings agree with this view.

C. Structure of the ICTY • According to Art. 11 of the Statute, the ICTY consists of the following organs: (a) the Chambers, comprising three Trial Chambers and an Appeals Chamber; (b) the Office of the Prosecutor; and (c) a Registry, servicing both the Chambers and the Prosecutor. • A maximum at any one time of three permanent judges and six ad litem judges shall be members of each Trial Chamber. (Art. 12 (2)). Ad litem judges are specially appointed to sit on a particular case or cases. • Seven of the permanent judges shall be members of the Appeals Chamber. The Appeals Chamber shall, for each appeal, be composed of five of its members. (Art. 12 (3)). • The International Tribunal shall have its seat at The Hague (Art. 31 ICTY Statute)

D. Qualifications and election of judges • Art. 13: The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers and sections of the Trial Chambers, due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.

• • Art. 13 bis (Election of permanent judges): Fourteen of the permanent judges shall be elected by the General Assembly from a list submitted by the Security Council. Each State may nominate up to two candidates. From the nominations received the Security Council shall establish a list of not less than twenty-eight and not more than forty-two candidates, taking due account of the adequate representation of the principal legal systems of the world The candidates who receive an absolute majority of the votes of the States Members of the United Nations and of the non-member States maintaining permanent observer missions at United Nations Headquarters, shall be declared elected. The permanent judges shall be elected for a term of four years. The terms and conditions of service shall be those of the judges of the International Court of Justice. They shall be eligible for re-election. Art. 13 ter (Election and appointment of ad litem judges): The ad litem judges of the International Tribunal shall be elected by the General Assembly from a list submitted by the Security Council. Each State may nominate up to four candidates. From the nominations received the Security Council shall establish a list of not less than fifty-four candidates, taking due account of the adequate representation of the principal legal systems of the world and bearing in mind the importance of equitable geographical distribution. The candidates who receive an absolute majority of the votes of the States Members of the United Nations and of the non-member States maintaining permanent observer missions at United Nations Headquarters shall be declared elected. The ad litem judges shall be elected for a term of four years. They shall be eligible for re-election.

E. The Office of the Prosecutor • The Office of the Prosecutor is the organ responsible with investigating allegations, issuing indictments (which have to be confirmed by a judge), and bring matters to trial. • Art. 16 (4): The Prosecutor shall be appointed by the Security Council on nomination by the Secretary-General. He or she shall be of high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases. The Prosecutor shall serve for a four -year term and be eligible for reappointment. • Art. 16 (2): The Prosecutor shall act independently as a separate organ of the International Tribunal. He or she shall not seek or receive instructions from any Government or from any other source. • Art. 16 (3): The Office of the Prosecutor shall be composed of a Prosecutor and such other qualified staff as may be required. • UN SC Res. 1786 (2007): On 28. 11. 2007, Serge Brammertz has been appointed for a four-year term to serve as the prosecutor of the Tribunal as of 1. 1. 2008. His mandate has been extended, and he is still serving.

F. The Registry • Art. 17: The Registry shall be responsible for the administration and servicing of the International Tribunal. • The Registry shall consist of a Registrar and such other staff as may be required. • The Registrar shall be appointed by the Secretary. General after consultation with the President of the International Tribunal. He or she shall serve for a fouryear term and be eligible for reappointment. • The staff of the Registry shall be appointed by the Secretary-General on the recommendation of the Registrar. • Mr. John Hocking, from Australia, has been Registrar since 15 May 2009.

G. Jurisdiction of the ICTY • • General competence (Art. 1): The International Tribunal 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. Temporal jurisdiction (Art. 8): The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991. This is to mean that only acts committed after that date may be tried by the ICTY. There is no clarity as to the final date after which the Tribunal no longer possesses temporal jurisdiction. It may be said that the temporal jurisdiction can comprise all events occurring until the Tribunal continues its activity, in other words, until the UN SC terminates the existence of the Court. That is how the later conflicts in Kosovo and the Former Yugoslav Republic of Macedonia fell within the jurisdiction of the Tribunal. However, in accordance with the Tribunal’s “completion strategy”, the last indictments were issued at the end of 2004. The UN SC wanted a completion strategy to be implemented by the end of 2010. Thus, it had requested both the ICTY and ICTR to complete all investigations by the end of 2004, to complete all trial activities at first instance by the end of 2008 and to complete all work in 2010. (Res. 1503 (2003) and Res. 1534 (2004)). However, the ICTY has stated in its Completion Strategy Report (S/2009/252) that the Tribunal will not be in a position to complete all its work in 2010. Similarly, the Completion Strategy Report (S/2009/247) by the ICTR also states that the Tribunal will not be in a position to complete all its work in 2010. Thus, the Court will at least continue its activity until all current cases are finalized. That will be, it seems, until the end of 2016.

• Territorial jurisdiction (Art. 8): The territorial jurisdiction of the International Tribunal shall extend to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters • Personal jurisdiction (Art. 6): The International Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute. • Subject-matter jurisdiction (madde bakımından yetki - Arts. 25): • This refers to the categories of crimes over which the ICTY may exercise jurisdiction. The Statute only embodies those acts which are clearly criminalized under positive int’l law, in other words, acts that are considered crimes under int’l treaties and int’l customary law. The idea behind such choice is to prevent objections based on the principle of legality.

Art. 2 (Grave breaches of the Geneva Conventions of 1949) • The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) willfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) willfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages. • • The 1949 Conventions only apply to international armed conflicts. • The Appeals Chamber in Tadic has declared that with regard to Bosnia, the armed conflict occurring after May 19, 1992 constitutes an int’l. armed conflict. After the declaration of independence by Slovenia on June 25, 1991 the conflict has assumed an int’l. character, thus the 1949 Conventions became applicable.

Art. 3 (Violations of the laws or customs of war) • The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. • There are numerous treaties which constitute a source of the law of armed conflicts. Some provisions of such treaties are generally accepted as binding by the global community of states, thus applying in quality of customary rule to states which are not party to those treaties. Certain rules laid down in the Geneva Conventions are an example. Art. 3 of the ICTY Statute relies on such rules. • The Court decided that Art. 3 may be applied in both international and noninternational (internal) armed conflicts (see in that direction the judgment of 2. 10. 1995 of the Appeals Chamber in Tadic).

Art. 4 (Genocide) • Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. • Para. 3 - The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.

Art. 5 (Crimes against humanity) • The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder (öldürmek); (b) extermination (topyekun imha); (c) enslavement (köleleştirme); (d) deportation (tehcir); (e) imprisonment (hürriyetinden yoksun kılma); (f) torture (işkence); (g) rape (tecavüz); (h) persecutions on political, racial and religious grounds (zulmetmek - yani, siyasi, ırki veya dini bir nedene bağlı olarak kişilere eza cefa çektirme) (i) other inhumane acts (diğer insanlık dışı fiiller).

• The ICTY Statute requires a nexus (link) between the existence of an armed conflict and the commission of such crimes. However, the character of the armed conflict (whether it is international or non-international) is irrelevant. • The Statute does not seek the existence of a «widespread or systematic» attack. However, the case-law of the ICTY seeks the existence of such context as an element of the crime. • The wording “other inhumane acts” illustrates the fact that this is not a close-list, the enumeration is not exhaustive (numerus clausus). This approach may be questioned vis-à -vis the principle of legality.

No aggression? • For reasons of political expedience the crime of aggression has not been incorporated into the Statute. • This is because it was impossible to accept on the political level as a legitimate counterpart during peace negotiations those persons who had started and leadered the war on the one hand, and try to prosecute them as the perpetrators of the “supreme crime”of aggression, on the other.

H. Relationship with national criminal jurisdiction (Art. 9) • • “ 1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal”. On the one hand, the ICTY and national criminal courts have concurrent jurisdiction, they are both entitled to try the crimes enumerated in the Statute. So, the crimes described above may be committed for trial before national Bosnian, Serbian, Croatian, Slovenian courts too. However, para. 2 of Art. 9 grants primacy to the international tribunal. Although the provision speaks of “request”ing national courts to defer the case, national courts are in fact obliged to comply with such request. This is confirmed by the prioritary position of the Tribunal as stressed out by the UN SG’s report accepted through Res. 808, and by Articles 9 and Art. 29 (1): “States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. “ Rule 9 RPE explains when deferral is justified.

• • Thus, the relationship with national criminal jurisdiction is configured differently compared with other int’l. criminal tribunals. Indeed, the Nuremberg and Tokyo tribunals had replaced national courts. On the other hand, the ICC, as we shall see, is only complementary to national jurisdiction (Arts. 1 and 17 of the Rome Statute). The ICTY and ICTR differ from both systems. They do not replace national courts, but unlike the ICC, they do not only complete national jurisdiction neither. They work together with national courts, but have primacy over them. An important rule in this regard is incorporated in the Rules of Procedure and Evidence, Rule 11 bis: In certain cases, by considering the gravity of the crimes charged and the level of responsibility of the accused, certain cases before the ICTY may be referred to national courts. This rule alleviates the workload of the Tribunal and allows the defendants to be tried witihn a reasonable time. By referring certain cases of minor importance to national courts, it is made sure that the ICTY only has to deal with those criminals bearing the major responsibility. This rule will also help achieve the Completion Strategy.

• Non bis in idem principle: “ 1. No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 2. A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. 3. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served. ”

I. General Principles of Criminal Law • - - Art. 7, on individual criminal responsibility, lays down the following rules: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime (para. 1). The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment (para. 2). The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. (para. 3) (‘superior/command responsibility’). (This rule on ‘superior responsibility’ is similar to that found in Art. 28 of the ICC Statute. The difference is that the ICC Statute also makes mention to a “person effectively acting as a military commander” (de facto commander). So, the ICC Statute explicitly provides for the responsibility of persons such as gang leaders. However, the case-law of the ICTY has also included de facto superiors/commanders within the ambit of this paragraph. )

- The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires (para. 4). This is similar to Art. 33 of the ICC Statute. However, in the Rome Statute the superior order defence neither constitutes a justification nor a mitigatory circumstance. However, as we shall see later on, under certain conditions, the person acting under superior orders may be relieved altogether from criminal responsibility under the Rome Statute.

• There is no provision regarding the punishment of attempt. - In my opinion, the principle of legality prevents the punishment of attempt since there is no explicit rule in the Statute regarding its criminalization. However, many writers argue that attempt can be punished based on customary law. - In practice, the prosecutor has punished attempted crimes by considering them under other categories of crimes. For example, the indictments have qualified attempted murder as inhuman treatment. • Similarly, there are no provisions regarding culpability and circumstances excluding culpability, such as mental disorder, involuntary intoxication, force majeure. However, such institutions are part of general principles of law recognized by all legal systems, and will thus apply in such quality. The principle of legality is not a bar in this case since the application of these rules will be in favour of the suspect.

J. Investigation, Prosecution, and Enforcement of Sentences • Art. 18 (Investigation and preparation of indictment): 1. The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations. The Prosecutor shall assess the information received or obtained and decide whethere is sufficient basis to proceed. 2. The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned. 3. If questioned, the suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands. 4. Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber.

• Article 19 (Review of the indictment) 1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. 2. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial. • Article 20 (Commencement and conduct of trial proceedings): 1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal. 3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial. 4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.

Rights of the accused (Art. 21) 2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute. 3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal; (g) not to be compelled to testify against himself or to confess guilt.

Judgment and Penalties • Article 23 (Judgment): The judgment shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended. • Article 24 (Penalties): 1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia. Comment: Therefore, there is no capital punishment. The Tribunal may not sentence to payment of a judicial fine, or to compensation, or to disqualifications. However, Rule 106 (RPE) provides that “Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation. In such case, the judgement of the ICTY shall be final and binding as to the criminal responsibility of the convicted person for such injury. (Rule 101 of the RPE: A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life. ) 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. (Rule 101: Any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction has to be taken into account. Rule 101 (C): Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal. ) 3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

Appeal • Contrary to the Nuremberg and Tokyo Tribunals, the judgments of the trial chambers are not final, there appellate proceedings (‘istinaf’, temyiz değil). • Art. 25: The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice. • 2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.

• The decisions of the Appeals Chamber are not governed by the stare decisis rule. As such, they are not binding precedents, but merely constitute caselaw. • However, in practice, the decisions of the A. Ch. are followed, except where cogent reasons in the interests of justice require a departure. This would be the case when the previous decision is based on a wrong legal principle or the relevant law was misconstructed and not applied correctly.

Art. 26 (Review Proceedings – Yargılamanın Yenilenmesi /İade-i Muhakeme) • Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Enforcement • Art. 27 (Enforcement of sentences): Imprisonment shall be served in a State designated by the International Tribunal from a list of States which have indicated to the Security Council their willingness to accept convicted persons. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal. - The president of the Tribunal shall make such designation (RPE, Rule 103). • Art. 28 (Pardon or commutation of sentences): If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.

K. Co-operation with the ICTY • Art. 29 (Co-operation and judicial assistance) 1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal. • Rule 58 RPE: The obligations laid down in Article 29 of the Statute shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist under the national law or extradition treaties of the State concerned.

L. ICTY’s Activity (as of 01/09/2013) • The ICTY has indicted 161 persons. • Proceedings regarding 136 accused have been concluded: 18 persons were acquitted, 69 persons were convicted and sentenced, 13 persons had their case referred to national jurisdiction pursuant to Rule 11 bis, 16 persons, including the President of Serbia, Slobodan Milosevic, died either before or after their transfer to the Tribunal, 20 indictments were withdrawn under Rule 51 of the RPE. • Proceedings are ongoing with regard to the remaining accused. • After extensive efforts, there are no remaining fugitives. In particular, the arrests of Ratko Mladić, who is amongst the top responsibles for the atrocities (and the commander of the Serbian forces committing genocide in Srebrenica), and Radovan Karadžić, President of the so-called Republika Srpska, is particularly important.

M. ICTY- Assessment • Early shortcomings: Many argued that the Tribunal was unsuccessful in its initial years of operation. • The Tribunal suffered serious financing problems and had a very limited staff. • The ICTR had an advantage in that a large number of accused had already been apprehended by the new gov’t. That was not the case with the ICTY which had to start working in the midst of continuing armed conflict, and without initially enjoying the support and cooperation of States on whose territory the alleged crimes had been committed. • The problem was aggravated by the fact that the Dayton Peace Agreement, which officially terminated the conflict and imposed upon the former Yugoslav Republics the obligation to cooperate with the ICTY, was only signed in December of 1995. But even after that date, little or no assistance was lent to the Tribunal by the various newly established States. • Indeed, for some time, the great majority of suspects could not be apprehended. Croatia and Serbia, in particular, did not comply with their obligation to co-operate. Many suspects in Serbia, especially, were able to conduct their daily life in a relatively comfortable manner.

• • • By the middle of 1995, the Tribunal had still no accused to try, and States were getting tired of paying for a court that had no job (although, in April 1995, Germany deferred its own proceedings against a lowranking suspect (Tadic), and transferred him to the ICTY for trial. ) As per the Dayton Peace Agreement, int’l. forces in Former Yugoslavia had the authority to arrest those indicted by the ICTY. On January 19, 1996 it was agreed that the NATO Stabilisation Forcer (SFOR) would assist in ICTY investigations and also detain any indicted persons whom it came across in the ordinary conduct of its duties. However, journalists and observers from Western States in the zone were alleging that UN and NATO personnel was not committing any effort in this regard, and that, as far as possible, they were trying to stay away from the suspects. At that time, Tomuschat was arguing that the political will to catch “the big fish” was lacking, and that only the trial of low-key figures should be expected. Even that, in his opinion, would depend on coincidences, such as being captured by chance in neighbouring countries to which they have fled hoping not to get recognized. Tomuschat even argued that the Tribunal could have been closed down without trying a case.

• According to one view (Forsythe), the purpose of establishing the Tribunal was to give the impression that something was being done about the violations of IHL. The Western States’ political will was not to intervene in the events, and the Tribunal was a means to conceal their real purpose. They thought about ending the conflict through diplomatic methods, and this required co-operation with alleged war criminals. If the Tribunal was to try these persons, diplomatic attempts would be undermined. Therefore, the Tribunal would exist on paper, but its hands would be tied by not providing the necessary support. In this way, diplomatic negotiations could be conducted behind closed doors without causing major stir in the public opinion. • Even worse, in October 1996, the President of the International Tribunal, Judge Antonio Cassese, gave the western states ten to twelve months to arrest leaders indicted for crimes against humanity in Bosnia, or he and his fellow judges "will propose to the Security Council to close down the tribunal [because it] is becoming an exercise in hypocrisy”! • Another argument was that of secret bargains being conducted. It was speculated that a secret bargain existed between the leaders of the warring factions and the promoters of the Dayton Agreement to the effect that the former would be excluded from prosecution.

• • Gaining momentum: What happened until mid-way through 1997 proved that the int’l. community and the Serbian authorities in primis were not determined or even willing to cooperate with the court. However, things started changed due to, mainly, the consistent int’l. pressure exercised on States not cooperating. UN personnel managed to apprehend two suspects within a month (Slavko Dokmanovic in June 1997 ve Milan Kovacevic in July 1997). By 1998 the Tribunal had 19 people in custody. In May 1999, Milošević was indicted for alleged crimes in Kosovo. The change of gov’t. in the (then) Former Republic of Yugoslavia provided the most important boost. The new administration, eager to maintain good relations with the Western States, facilitated the arrest and surrender of war criminals at large. It was clearly seen that justice could be achieved when backed up by political will. After this date, many suspects were apprehended thanks to the UN personnel gaining courage, and more cooperation at State level. The surrender of Slobodan Milošević to the Tribunal on 29 June 2001 was the culmination of the efforts to bring to justice those responsible for the atrocities committed during war time. In later years, many suspects who believed that they could no longer escape justice also began to surrender voluntarily.

• • • The ICTY has been criticized for being a political, rather than judicial, structure. Its fairness and impartiality has been debated. It has been argued that judges were biased against some of the parties to the conflict (not a truthful allegation, I must say). Even so, it is fair to say that the ICTY has generally achieved its purpose. The Tribunal has made a very important contribution to ICL in determining, in the Interlocutory Appeal Decision in. Tadic (A. Ch. , 2. 10. 1995), that war crimes may also be committed in non-international armed conflicts. The prevailing opinion to that date was in the opposite direction. That judgment contributed to changing that understanding. It was established that genocide had been committed in Srebrenica (see in this direction, for the first time, the judgment in Krštić, T. Ch. , 2. 8. 2001). The first comprehensive set of rules regarding int’l. criminal procedure was adopted. The scope and content of the various int’l. crimes was specified, general principles of criminal law were elaborated more in detail. It might be concluded that the ICTY has proved to be an effective and reliable mechanism in establishing justice. The rules and principles laid down by the ICTY (and the ICTR) made a major contribution to the establishment of a permanent ICC. The ICTY is now intent on its completion strategy, which has resulted, after 2005, in cases being referred back to national jurisdiction.

4. ICTR

A. Events Leading to the Establishment of the ICTR • The ICTR was established in response to the tragic events which occurred in 1994 in Rwanda, namely, the killing of at least 800, 000 civilians as a result of the genocide perpetrated by the Hutu majority against the Tutsi minority during the civil war. • One data may suffice to grasp the magnitude of the terrible events that wrecked Rwanda: from April to the beginning of June, 80 % of the total casualties occurred. • In other words, at least 500, 000, and most probably 800, 000 people were killed in just 100 days. Over 10 % of the total population was killed within such short period of time. • The daily killing ratio is five times bigger than that in the Nazi concentration camps. This is to illustrate how meticolously the killings were planned and carried out. • Suggested videos (documentaries): ‘Ghosts of Rwanda’ (2 hours), Rwanda (50 minutes).

• The intervention of the int’l. community to the events in Rwanda was very weak. Not even the faint efforts, such as some UN and NATO military interventions and the mediation of Western powers made during the Yugoslavian crisis were implemented in Rwanda. • In the aftermath of the bloodshed, Rwanda's Prime Ministerdesignate (a Tutsi) pressed the Security Council: "Is it because we're Africans that a similar court has not been set up for the Rwanda genocide? " • Cryer et al. at 135 -6: “Given the creation of the ICTY for a European conflict, when genocide clearly occurred in Africa, it was considered necessary and appropriate to create an analogous tribunal for crimes committed” (in Rwanda). • The ICTR was established by way of UN Security Council Res. 955 on November 9, 1994. Its seat is in Arusha, Tanzania.

• In June 1993 the UN SC (Res. 846) deployed a mission team in the zone: the UNOMUR- United Nations Observer Mission Uganda-Rwanda, which would be deployed on the Ugandan side of the border:

• In October 1993 (Res. 872) a UN peacekeeping operation was established: the UNAMIR- United Nations Assistance Mission for Rwanda, which was integrated with the previous UNOMUR.

Res. 872 - UNAMIR • 3. Decides that, drawing from the Secretary-General’s recommendations, UNAMIR shall have the following mandate: (a) To contribute to the security of the city of Kigali inter alia within a weaponssecure area established by the parties in and around the city; (b) To monitor observance of the cease-fire agreement, which calls for the establishment of cantonment and assembly zones and the demarcation of the new demilitarized zone and other demilitarization procedures; (c) To monitor the security situation during the final period of the transitional government’s mandate, leading up to the elections; (d) To assist with mine clearance, primarily through training programmes; (e) To investigate at the request of the parties or on its own initiative instances of alleged non-compliance with the provisions of the Arusha Peace Agreement relating to the integration of the armed forces, and pursue any such instances with the parties responsible and report thereon as appropriate to the Secretary. General; (f) To monitor the process of repatriation of Rwandese refugees and resettlement of displaced persons to verify that it is carried out in a safe and orderly manner; (g) To assist in the coordination of humanitarian assistance activities in conjunction with relief operations; (h) To investigate and report on incidents regarding the activities of the gendarmerie and police.

The UNAMIR • However, the mission had insufficient military and financial resources, and in any case, never actually intervened forcefully because the mandate had no provision to that effect. • In the following months the mandate was extended twice. However, the mission could and would just observe the slaughter. • The UN-SG who noticed the impotence of the mission proposed to increase the number of personnel, however, the SC did the exact opposite by dropping the number from 1515 to 270! • In April 1994, the SC virtually admitted its incapacity to prevent, or at least, to minimize the gravity of the events, and adjusted the mission of the peacekeeping operation to just mediating for the purposes of establishing a ceasefire between the parties. (SC Res. 912 (1994) on adjustment of the mandate of the UN Assistance Mission for Rwanda due to the current situation in Rwanda and settlement of the Rwandan conflict).

• Res. 912 (1994): “. . 8. Decides, in the light of the current situation in Rwanda, to adjust the mandate of UNAMIR as follows: (a) To act as an intermediary between the parties in an attempt to secure their agreement to a cease-fire; (b) To assist in the resumption of humanitarian relief operations to the extent feasible; and (c) To monitor and report on developments in Rwanda, including the safety and security of the civilians who sought refuge with UNAMIR, and authorizes a force level as set out in paragraphs 15 to 18 of the Secretary-General’s report of 20 April 1994 for that purpose. ” • The atrocities committed in Yugoslavia had managed to draw the attention of the int’l. community because they occurred in the middle of Europe. However, the crimes committed in a remote corner of Africa had remained distant from the eyes, and indeed, from the consciences of Western statesmen. • Indeed, it was only after the full scale of the genocide was exposed that the UN really did something about it. • Remember in-class explanations concerning the Clinton’s administration reluctant stance.

UN SC Res. (918), 17. 05. 1994 • “Deeply disturbed by the magnitude of the human suffering caused by the conflict and concerned that the continuation of the situation in Rwanda constitutes a threat to peace and security in the region, ” 3. Decides to expand UNAMIR’s mandate under resolution 912 (1994) to include the following additional responsibilities within the limits of the resources available to it: (a) To contribute to the security and protection of displaced persons, refugees and civilians at risk in Rwanda, including through the establishment and maintenance, where feasible, of secure humanitarian areas; (b) To provide security and support for the distribution of relief supplies and humanitarian relief operations; 4. Recognizes that UNAMIR may be required to take action in self-defence against persons or groups who threaten protected sites and populations, United Nations and other humanitarian personnel or the means of delivery and distribution of humanitarian relief; 5. Authorizes in this context an expansion of the UNAMIR force level up to 5, 500 troops; 18. Requests the Secretary-General to present a report as soon as possible on the investigation of serious violations of international humanitarian law committed in Rwanda during the conflict”. . . (A rapporteur was appointed on that basis. )

• An important step was the adoption of Res. 935 in July of 1994 requesting the Secretary-General to establish a Commission of Experts to examine violations of international humanitarian law committed in Rwanda. • The Commission witnessed horrendous scenes and prepared a report that would clearly expose the truth to the world. • Both the rapporteur and the commission informed the SC that clear evidence existed as to the commission of genocide and crimes against humanity, and proposed the establishment of an int’l. criminal tribunal. • The newly instated Rwandan gov’t. also supported the proposal. • Thus, the SC decided to follow through with such proposal, and contrary to the process regarding the establishment of ICTY, a prior report by the UN- SG was not requested. • Finally, on November 9, 1994, the ICTR was established by way of Res. 955.

Res. 955. : “Acting under Chapter VII of the Charter of the United Nations, 1. Decides hereby, having received the request of the Government of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statute of the International Criminal Tribunal for Rwanda annexed hereto”. • Interestingly, Rwanda eventually voted against the Resolution because it did not have the control it meant over the Tribunal, and due to fact that the limited scope of temporal jurisdiction which did not include events occurring before January 1994 was unacceptable to the new gov’t (other factors: no death penalty included, unable to exclude crimes other than genocide from the Tribunal’s jurisdiction)

B. Basics • The basic document is the Tribunal’s Statute which has later been amended various times. • The rules which were named “Rules of Procedure and Evidence”, handling the trial procedures in detail and serving as an internal regulation, were ratified on June 29, 1995 and have been amended on numerous occasions. • Budget for 2008 -2009: 247, 466, 600 USD. For biennium 2010 -2011, the UN GA approved initial appropriations of $245, 295, 800 gross ($227, 246, 500 net). • Staff: 1032 in 2008; 693 in 2009. The UN GA authorized 693 posts for 2010 and 628 posts for 2011. 77 nationalities are currently represented at the Tribunal.

C. Legitimacy of the ICTR • It can be derived from the Statute of the ICTR that the legal basis of its establishment relies on Chapter VII of the UN Statute, as the case of the ICTY. With this respect, discussions regarding the ICTY should be kept in mind in the assesment of the legitimacy of the ICTR. • However, as stressed out in the Preamble of the Statute, unlike the ICTY, there was also a request from the government of Rwanda in the way of the establishment of such a criminal court. • What has already been mentioned regarding the legal basis of the establishment of the ICTY also applies to the ICTR. • The objection regarding the jurisdiction of the ICTR was turned down by the Court on 18. 6. 1997 by referring to the Tadic judgment[1]. • Nonetheless, in a later judgment, the Trial Court of the ICTR has turned down the objection by stating that it is out of its scope of jurisdiction to assess the legitimacy of its own establishment[2]. [1] Decision on the Defence Motion on Jurisdiction, Prosecutor v Kanyabashi, Case No. ICTR-96 -15 -T, ICTR, Trial Chamber II, 18. 6. 1997. [2] 25. 4. 2001, Karemera decision, para. 25.

D. Characteristics of the ICTR • As regards the characteristics of the ICTR, it should be mentioned that it is also an ad hoc, extraordinary and civilian court. • By Res. 977 (1995) the SC decided that the seat would be located in Arusha, the capital of the United Republic of Tanzania. However, it is also possible for some hearings to take place in Rwanda. • The Office of the Prosecutor is situated in Kigali, the capital of Rwanda. • The Court resembles the ICTY with regard to its structure. In particular, the structure of Court was regulated identical to the one of the ICTY pursuant to the SC Res. 1165 dated 30 April 1998 and the SC Res. 1329 dated 30 November 2000. • Accordingly, the ICTR consists of a) Chambers, each comprising three Trial Chambers and one Appeals Chamber; b) the Office of the Prosecution; and c) a registry serving both to the Chambers and the prosecutor. • It should be noted that the ICTR shares the same Appeals Chamber with the ICTY. The purpose here was to achieve a coherent body of case-law.

• Pursuant to the amendments in the ICTR Statute with the SC Res. 1512 dated 2003, each chamber has 16 judges, as well as ad litem judges whose number can be nine at most at the sime time. All judges must be of different nationalities. • The Trial Chambers within the Chambers consist of three permanent judges, as well as ad litem judges whose number can be six at most. The Appeals Chamber consists of seven permanent judges and five judges among them are appointed to adjudicate in each trial (Art. 11). • It was stipulated that the person serving as the ICTY prosecutor would also be the ICTR prosecutor (Art. 15/3). • However, with the SC Res. 1503 (2003), it was held that a separate prosecutor would be appointed for the ICTR. • Since that date, the Prosecutor is Mr. Hassan Bubacar Jallow from Gambia.

• • • The article (Art. 6) regarding individual criminal responsibility is identical with the one in the ICTY Statute. The relationship between the ICTR and national criminal jurisdiction is identical with the regulation in the ICTY Statue (Art. 8 -9). In other words, the ICTR and the national courts are entitled to try persons simultaneously, they have concurrent jurisdiction. However, Art. 8 para. 2 of the Statute assigns primacy to the ICTR. Accordingly, the Court can ask the national courts to defer competence to the ICTR at any stage of the procedure and such a formal request will be binding upon the national courts. The principle of non bis in idem stated under Art. 9 of the Statute is also identical with the regulation in the ICTY. With regard to carrying out the investigation, Art. 17 (investigation and preparation of indictment) and 18 (review of the indictment) of the Statute are in conformity with the regulation in the ICTY Statute. Also, the rights of the accused indicated under Art. 20 corresponds to Art. 21 of the ICTY Statute. Likewise, there is no distinction between the statutes of the two Courts in terms of judgment (Art. 22), penalties (Art. 23) and enforcement of sentences (Art. 26). Same rules also apply with regard to appellate proceedings. Since these issues were handled elaborately during the discussions regarding the ICTY, it suffices here to refer to the relevant subjects.

E. Jurisdiction • Temporal jurisdiction (Art. 7): The temporal jurisdiction of the International Tribunal for Rwanda shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994. This limitation was strictly criticised by the later government in Rwanda. Indeed, as it was very rightfully stated, the preperations of the genocide conspired by the Hutus were initiated in 1990. • Territorial jurisdiction (Art. 7): The territorial jurisdiction of the International Tribunal for Rwanda shall extend to the territory of Rwanda including its land surface and airspace as well as to the territory of neighboring States in respect of serious violations of international humanitarian law committed by Rwandan citizens. • Personal jurisdiction (Art. 5): The International Tribunal for Rwanda shall have jurisdiction over natural persons pursuant to the provisions of the present Statute.

Subject-matter jurisdiction • Art. 2 (Genocide): Identical to the ICTY Statute. • Art. 3 (Crimes against Humanity): “The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: a) Murder; b) Extermination; c) Enslavement; d) Deportation; e) Imprisonment; f) Torture; g) Rape; h) Persecutions on political, racial and religious grounds; i) Other inhumane acts. ”

• • • With regard to crimes against humanity, the existence of an armed conflict is not a pre-requisite. Thus, contrary to the ICTY Statute, acts committed in peacetime may also constitute crimes against humanity. Int’l customary law is also in this direction. However, according to Art. 3 of the ICTR Statute, only acts that are committed as part of a widespread or systematic attack against the civilian population may constitute a crime against humanity. This condition also applies under customary international law. However, an extra component required for such a crime is the condition that the attack stems from discrimination based on national, political, ethnic, racial or religious grounds. Thus, special/specific intent (dolus specialis/ özel kast) is required. This requirement of discriminatory intent did not exist in the ICTY Statute and was not incorporated in the Rome Statute. Even though this requirement is contrary to the prevailing understanding that crimes against humanity may be commited with general intent (dolus generalis / genel kast), it is conceivable when the political facts leading to the commission of such crimes in Rwanda are taken into consideration.

• • Art. 4 (Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II): The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b) Collective punishments; c) Taking of hostages; d) Acts of terrorism; e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) Pillage; g) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples; h) Threats to commit any of the foregoing acts. Jurisdiction over war crimes is imited to those in non-int’l. armed conflict. It is normal that the regulation here is different than the one in the ICTY, since the conflict in Rwanda was not of an international nature.

F. ICTR’s Activity • To summarize the activity of the ICTR, it can be mentioned that it has been operating effectively, not being as efficient as the ICTY, though. • It should be kept in mind that the ICTR has been confronted with highly serious obstacles. • As of 1 September 2013, 63 persons were convicted (the cases of 16 of these persons are pending appeal), 12 persons were acquitted, 2 indictments were withdrawn, 2 persons died before trial, 5 cases were transferred to national jurisdiction (to France). • Nine accused are still at large.

G. Assessment • Problems: - Very slow start with the seat of the Court only determined in February 1995, and with major recruitment of staff problems. - ICTR had to carry out the investigation without being able to obtain much support from the local government or the Organization of African Unity (named African Union after 1999). However, some African States did cooperate quickly. Relations with Rwanda were almost always problematic. - The funds were not controlled well financially and administratively; there were serious allegations of mismanagement, as highlighted by a Report of the SG (Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, A/51/798). The Registry was criticised very severely for financial irregularities, employing under-qualified staff, and weak asset management. The Registrar resigned. - In the same Report, the Office of the Prosecutor was considered inefficient, and beset by leadership failure by the deputy prosecutor, who was also asked for (and made to) resign. - The court was confronted with thousands of suspects, but had to deal with appalling conditions in terms of physical infrastructure and the lack of local lawyers who could represent those suspects; - There were long delays in the conduct of trials, partly due to translation problems, - Coordination was a problem since the Tribunal is based in Arusha, whereas the Office of the Prosecutor is in Kigali.

• Achievements: - It was determined that genocide has been committed. - Former Prime Minister Jean Kambanda pleaded guilty to genocide, and the Trial Chamber (2. 9. 1998) in Akayesu, in the first express application of the Genocide Convention by an int’l. tribunal, found the defendant guilty of genocide. - It was determined that sexual offences may form the material element of genocide. - A milestone judgment determined the responsibility of controllers of mass media with regard to incitement to genocide. - It is striking that the former prime minister (Jean Kambanda) and many other ministers were tried. With this respect, the ICTR has been more successful than ICTY in terms of apprehending and trying suspects who are high ranked officials. • The Tribunal intends to complete its work (appealed cases) by the end of 2015. • Initially, the intention was to complete the cases before the trial chambers by the end of 2010. That goal was only recently achieved. The reluctance, based on concerns regarding the possibility of fair trials in Rwanda and about standards of imprisonments there, to transfer cases to Rwandan national jurisdiction was one reason for the delay.

5. ‘THE MECHANİSM’

• The Mechanism for International Criminal Tribunals (the MICT) was established by the United Nations Security Council on 22 December 2010 to carry out a number of essential functions of the Tribunals after the completion of their respective mandates. • The establishment of the Mechanism is a key step of the Completion Strategies of the two Tribunals. It is a new small, temporary and efficient body, tasked with continuing the “jurisdiction, rights and obligations and essential functions” (UNSC Resolution 1966) of the ICTR and the ICTY; and maintaining the legacy of both institutions. • The MICT comprises two branches: - One branch covers functions inherited from the ICTR and is located in Arusha, Tanzania. It commenced functioning on 1 July 2012. - The other branch is located in The Hague and took over functions derived from the ICTY on 1 July 2013.

• During the initial period of the Mechanism’s work, there will be a temporal overlap with the ICTR and the ICTY as these institutions complete outstanding work on any trial or appeal proceedings which are pending as of the commencement dates of the respective branches of the MICT. • Resolution 1966 envisages that the Mechanism’s “functions and size will diminish over time, with a small number of staff commensurate with its reduced functions”. The Security Council determined that the Mechanism will continue to operate until it decides otherwise, but further provided that the progress of the work of the Mechanism will be reviewed in 2016 and every two years thereafter. • The Mechanism will perform a number of essential functions currently carried out by the ICTR and the ICTY. Securing the arrest, transfer and prosecution of the nine remaining fugitives still wanted for trial by the ICTR will be a top priority for the Mechanism.

• Other functions of the Mechanism: - The two branches of the Mechanism will conduct and complete all appellate proceedings for which the notice of appeal against the judgement or sentence is filed after the start date of the respective branch. The Mechanism will have jurisdiction to conduct review proceedings arising from its own judgements. - Retrials ordered by the Mechanism’s Appeals Chamber, will be conducted by the Mechanism. - The MICT has the jurisdiction to conduct investigations, trials and appeals in cases of contempt of court and false testimony committed in the course of proceedings before the MICT. This jurisdiction also extends to contempt cases arising from proceedings before the ICTR and ICTY for which the indictment is confirmed after the start date of the respective branch of the MICT. - Protection of victims and witnesses - Supervision of enforcement of sentences - Assistance to national jurisdictions - Preservation and management of MICT, ICTR and ICTY archives.

• The Mechanism has a permanent President, Prosecutor and Registrar, common to both branches. • A roster of 25 judges will cover both ICTR and ICTY branches. When electing judges, particular account was taken of candidates’ experience as judges of the ICTR or the ICTY. • The judges will come to The Hague only when necessary and at the request of the President. In so far as possible, and as decided by the President, the judges will carry out their functions remotely. • This section is reproduced from http: //www. icty. org/sid/10874