The First Steps of the International Criminal Tribunal for the Former Yugoslavia Luisa Vierucci 1 Full text available: PDF format * The International Criminal Tribunal for the Former Yugoslavia,2 which was established by Security Council Resolution 827 of 25 May 1993 and held its first plenary session on 17 November 1993, became fully operational as a judicial body in November 1994 with two measures. These were: I. the indictment and the warrants of arrest issued against Dragan Nikolic, a former commander of the Susica camp in the Republic of Bosnia-Herzegovina and II. the request for deferral by the Federal Republic of Germany of the criminal proceedings being carried out in its national courts in the matter of Dusko Tadic. This paper will analyze the most relevant legal questions which have been raised by these measures and try to outline the way in which the International Tribunal dealt with them by applying the provisions of the Statute3 and of the Rules of Procedure and Evidence.4 I. The Nikolic Case The first indictment which was issued by the Prosecutor of the International Tribunal raises two problems worth examining: firstly, the Prosecutor's classification of the same offences under different headings; secondly, the transmission of a warrant for arrest to a non-State entity such as the Bosnian Serb administration in Pale, for execution in the territory controlled by that entity. 1. The indictment against the Serb Dragan Nikolic was framed by the Prosecutor and transmitted on 4 November 1994 for confirmation to the competent Judge (E. Odio Benito from Costa Rica), i.e., the Judge previously designated by the Tribunal's President. In it, Nikolic was charged with grave breaches of the Fourth Geneva Convention of 1949, violations of the laws or customs of war and crimes against humanity. The indictment contains twenty-four counts almost all of which are framed in the alternative. This form of indictment tends to be chosen by the prosecution when a person is accused of an offence but it is not obvious which offence he has committed.5 In the indictment against Nikolic, for example, the killing of eight detainees is characterized both as a grave breach of the Fourth Geneva Convention (in this case, described as `wilful killing' according to Article 2(a) of the Statute) and as a violation of the laws or customs of war (referred to as `murder' and said to be covered by Article 3 of the Statute, though not specifically set out in this article), as well as a crime against humanity, contrary to common Article 3(1)(a) of the Geneva Conventions (again described as `murder' according to Article 5(a) of the Statute). The choice of the Tribunal's Prosecutor for alternative counts appears to be linked to the question of the nature of the conflict in which such acts were committed: is the conflict internal or international? If the judges are satisfied that at the time and in the place of the commission of the offence the armed conflict was international, Nikolic may be found guilty of a grave breach of the Fourth Geneva Convention; however, if the conflict is deemed to be internal, Nikolic may be convicted for crimes against humanity or a violation of common Article 3 of the Geneva Conventions. Therefore, it will be for the Trial Chamber to choose the count it considers to be the most appropriate to the offence, in the light of the character of the armed conflict in which the offence took place. In any event, it would seem that the defendant might be convicted of only one of the offences framed in the alternative. 2. After the confirmation of the indictment by the competent Judge and the issue of the warrants of arrest, the Registrar of the International Tribunal transmitted the documents to the `national authorities of the State in whose territory or under whose jurisdiction or control the accused resides, or was last known to be, together with instructions that at the time of arrest the indictment and the statement of the rights of the accused be read to him in a language he understands and that he be cautioned in that language' (Rule 55(B)). In this case, the Registrar forwarded the warrants for the arrest of Nikolic to the Republic of Bosnia-Herzegovina and to the Bosnian Serb administration in Pale, as the accused was supposed to be residing in one of these places. The fact that the territory under the administration of Pale has not been recognized as a State by the international community and that Rule 55(B) does not mention non-State entities as possible addressees of arrest warrants might have led the Registrar to consider transmitting the documents to the authorities of Serbia-Montenegro. Such a decision, however, would probably have been inappropriate, considering the interruption of the relations between Pale and Belgrade (although the commission of the offences in question dates back to the time when the Bosnian Serbs were supported by Belgrade). In order to prevent an argument that the transmission of the arrest warrant to the administration of Pale amounts to an implicit recognition of the statehood of the territory, it is hoped that Rule 55(B) will be amended so as to cover non-State entities as possible addressees of arrest warrants. * The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems. 1 European University Institute, Florence. 2 It will hereinafter be called the International Tribunal. 3 The Statute of the International Tribunal is Annex to the UN Secretary-General's Report S/25704, 3 May 1993, which was approved by Security Council Resolution 827. 4 Adopted by the International Tribunal on 11 February 1994 (UN Doc. IT/32, 14 March 1994), reprinted in 33 ILM (1994) 493. 5 C.J. Emmins, A Practical Approach to Criminal Procedure (3rd ed., 1985) 57.
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