International Criminal Tribunal for the Former Yugoslavia: Current Survey: Introduction The Jurisprudence of the Yugoslavia Tribunal: 1994-1996 Faiza Patel King1 and Anne-Marie La Rosa2 Introduction The International Criminal Tribunal for the Former Yugoslavia ('Tribunal') was established by the United Nations Security Council in 1993 in order to put an end to the widespread and flagrant violations of international humanitarian law occurring in the former Yugoslavia. As the first truly international war crimes court in history, the Tribunal has been the object of considerable attention from international lawyers. Although its first judgment is yet to be rendered, the Tribunal has already sentenced one defendant who pleaded guilty and has developed an extensive jurisprudence through the numerous motions filed before it and its own procedural innovations. Any evaluation of the Tribunal's accomplishments must perforce begin with an overview of the constitutional and procedural structure within which the Tribunal operates. The Statute of the Tribunal ('Statute'), which was adopted by the Security Council, is the Tribunal's constitutive instrument.3 Pursuant to the Statute, the Tribunal's eleven judges are assigned to one of the three Chambers: Trial Chambers I and II, each comprising three judges, and a five-Judge Appeals Chamber. The Statute provides for jurisdiction over four categories of offences: under Article 2 the Tribunal has jurisdiction over grave breaches of the 1949 Geneva Conventions; Article 3 gives it jurisdiction over violations of the laws or customs of war; genocide is covered by Article 4; and Article 5 establishes the Tribunal's jurisdiction over crimes against humanity. The Statute also gives the Tribunal's judges the authority and responsibility to adopt rules of procedure and evidence to govern its proceedings. The Tribunal's Rules of Procedure and Evidence ('Rules') were first adopted in January- February 1994.4 The Rules constitute an ambitious attempt to create a fully developed set of international rules for the conduct of pre-trial proceedings, trials and appeals. Since they were first adopted, the Rules have been amended several times ...in the light of new problems ... or unanticipated situations.... The Rules have been amended for a variety of reasons; to enhance the rights of the accused; to help better protect victims and witnesses; to take account of the views of the host country; to improve the consistency, clarity and comprehensiveness of the Rules.5 Since the Tribunal is an 'international' institution, its Rules attempt to combine the procedural traditions of the major systems of law prevalent in developed nations that is, the civil and common law systems. For example, the initiation of prosecutions is modelled closely on the adversarial system and gives an independent prosecutor the authority and responsibility for investigating war crimes and issuing indictments. The role of the judges during proceedings, on the other hand, is more extensive than in common law countries and resembles the practice of civil law systems. Judges - unlike in common law systems - are explicitly authorized to question witnesses and may call for additional evidence or recall a witness. In developing rules of international criminal law and procedure, the Tribunal is required above all to respect the international human rights standards set out in the International Covenant on Civil and Political Rights (ICCPR) as they relate to the rights of accused persons. All but one provision on the rights of the accused contained in Article 14 of the ICCPR are reproduced in Article 21 of the Tribunal's Statute. Moreover, the Report of the United Nations Secretary- General that was submitted to the Security Council with the Statute explicitly states that: [It] is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary- General, such internationally recognised standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights.6 The decisions rendered by the Tribunal's Chambers thus far cover a broad spectrum of issues and demonstrate the difficulties inherent in melding civil law and common law rules and international human rights standards into a truly 'international' body of procedural and substantive criminal law. This article analyses the principal decisions issued by the Tribunal in the first three years of its operation with a view to providing a broad overview of its jurisprudence and identifying the difficult and controversial areas in which the Tribunal has had to operate.7 It concentrates, in particular, on the Tribunal's adherence to, and development of, international standards regarding the rights of accused persons. Part I of this article focuses on the Tribunal proceedings that take place prior to an accused's first appearance before the Tribunal. This part examines at section A the initiation of the prosecution of a case - i.e., the submission of an indictment by the Prosecutor and its review and confirmation by a Trial Chamber judge. As discussed in section B, in some cases the indictment is preceded by a request for deferral by a national court to the jurisdiction of the tribunal. Rule 61 proceedings are the subject of section C. Under Rule 61, if an accused is not arrested within a reasonable time after the issuance of an indictment against him, a Trial Chamber may conduct an open court review of the evidence supporting the indictment to determine whether there are reasonable grounds for believing that the accused committed the crimes with which he is charged. The five Rule 61 proceedings thus far conducted by the Tribunal are described in this section, which concludes with a brief examination of the issues raised by these novel proceedings. Part II of the article examines trial-related proceedings. Because the judgment in the Tribunal's first trial has not been rendered, this part is concerned mainly with decisions issued prior to and during the trial. It also addresses miscellaneous proceedings involving persons who have not been indicted but have been brought to the Tribunal through various means, as well as one sentencing judgment. Part II begins, at section A, with a discussion of the Tadic case, which has been tried and in which a judgment is expected shortly. Section B covers the Blaskic case, which is expected to be tried in the spring of 1997 and section C describes the multi-defendant case, Prosecutor v. Mucic, Delic, Delalic and Landzo, which also appears almost ready for trial. The case against Djukic, who died prior to his trial, is discussed in section D, while section E briefly examines the mistaken arrest in Prosecutor v. Lajic. Lastly, the guilty plea and sentencing in the Erdemovic case is covered in section F. The article concludes with a brief evaluation of the extent to which the Tribunal has thus far succeeded in developing procedural and substantive rules of international criminal law. This conclusion indicates the areas in which the Tribunal has departed from, or modified, the principles regarding criminal trials that have been developed by other international judicial bodies and the reasons proffered for such adjustments. 1 Legal Officer, Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons; previously served as law clerk in the Chambers of the International Criminal Tribunal for the Former Yugoslavia. Member of the New York and Washington, D.C. bars. 2 Legal Officer, International Labour Office; previously served as law clerk in the Chambers of the International Criminal Tribunal for the Former Yugoslavia. Member of the Quebec bar. The views expressed herein are those of the authors in their personal capacities and do not necessarily represent those of any organizations with which they are or were affiliated. 3 Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991 (adopted 25 May 1993), reprinted in International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991: Basic Documents, Sales No. E/F/.95.III.P.1 (hereinafter ICTY Statute). 4 See 1994 Yearbook of the International Criminal Tribunal for the Former Yugoslavia 24 (1995), UN Sales No. E.95.III.P.2. See also Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, UN Doc. IT/32/Rev.9 (5 July 1996) (hereinafter ICTY Rules). 5 Address of the President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations General Assembly, UN Doc. A/5 1 /PV59 at 6 (19 Nov. 1996). 6 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) para. 106, UN Doc. UN S/25704 (3 May 1993) (hereinafter Report of the Secretary-General). 7 Under the ICTY Rules, its Registrar is also authorized to make certain determinations regarding matters such as the assignment of counsel to accused persons and conditions of detention. Registrar's decisions on these matters are beyond the scope of this article.
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Wednesday, September 08, 1999 02:10PM