| Essay, Research Paper
An Analysis of the United NationsInternational Tribunal to Adjudicate WarCrimes Committed in the FormerYugoslavia: Parallels, Problems, Prospects “You cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it.” William Tecumseh Sherman(note 1) I. Introduction Wartime atrocities against humankind have existed for millennia and are a regrettable, yet attendant,component of any war. Certain acts of war have always provoked outrage, although only recentlyhas indignation at such acts been expressed by uninvolved third parties.(note 2) Enforcement bysovereign States of the laws and customs of war has similarly existed for many years, yetprosecuting the offenders has often been less than successful. As Theodor Meron notes, “except inthe case of a total defeat or subjugation – for example, Germany after World War II – prosecutionsof enemy personnel accused of war crimes have been both rare and difficult.”(note 3) Indeed, theAllied International Military Tribunal (IMT) established at Nuremberg in 1945 would appear to be atrue anomaly: no similar international war crimes tribunal preceded it and none has followed.(note 4)However, the past inability of the world community to establish a permanent international criminalcourt that would, among other duties, prosecute those who violate the laws of war, should notdiscourage the United Nations from charging and attempting to prosecute those individualsresponsible for the appalling atrocities being committed in the former Yugoslavia. In a laudablemove, the Security Council on February 22, 1993, resolved to create an international tribunal toprosecute the Yugoslav offenders;(note 5) it subsequently adopted the Statute of the InternationalTribunal on May 25, 1993.(note 6) Unfortunately, almost six months passed before the Tribunalconvened its first session in The Hague on November 17, 1993. Further, the session was primarilyceremonial and no actual business was conducted.(note 7) Indeed, the fact that the Tribunal’s firstformal substantive session was scheduled for April 24, 1994,(note 8) almost one year after it wasestablished, seems to validate the beliefs of those who view the static Tribunal as a whollyceremonial body designed to appease the conscience of an international community whose initialmoral outrage at the atrocities has gradually deteriorated into apathy and resigned acceptance. Yet, should the Tribunal ever begin to deliberate in earnest, it will first need to surmount a variety ofhurdles not faced by its predecessor at Nuremberg. The Tribunal’s triers of fact are neither thevictorious nations nor do they represent victims of wartime atrocities in the former Yugoslavia. Thus,they have no personal, vested interest in bringing the accused to trial. Securing the defendants willbe a much more difficult (if not impossible) task than it was for the Allies after World War II.Obtaining probative evidence will be a race against the ability of the violators to destroyincriminating documents. Petty politicking and world disinterest may eviscerate the potentialmandate of the Tribunal, while the United Nations’ need to negotiate a peace settlement with theoffenders themselves may very well destroy any remaining incentive for the Tribunal to begin workin earnest. This Note contrasts and compares the nascent United Nations International Tribunal to AdjudicateWar Crimes Committed in the Former Yugoslavia with the International Military Tribunalestablished by the Allies at Nuremberg in 1945. What are the parallels between the two tribunals?Did both confront similar hurdles at their inception? Or did the creation of each tribunal give rise torespectively unique problems? How much of a substantive legal basis does the Nurembergexperience provide for the United Nations International Tribunal? Finally, what are the prospects forthe current United Nations International Tribunal? Part II briefly examines the events that led to thedrafting of the London Charter, which created the Allied International Military Tribunal, and thengives a general overview of the Yugoslav conflict and of the U.N. action that created the currentTribunal. Part III discusses the essence of the principles that evolved from the Nuremberg trial, theproblems inherent in the process, and the impact of the Tribunal’s actions. Part IV first outlines thejurisdictional bases of the U.N. International Tribunal and then examines the hurdles the Tribunalmust overcome in order to ensure its effectiveness and legitimacy within the world community. PartV concludes by examining the current status of the United Nations International Tribunal and arguesthat the moral obligations advanced in favor of pursuing the Tribunal’s mandate outweigh theominous ramifications of doing nothing at all. II. The Establishment of the Tribunals A. Overview The events that led to the creation of the International Military Tribunal at Nuremburg (IMT) and theUnited Nations International Tribunal to Adjudicate War Crimes Committed in the FormerYugoslavia were markedly different. The IMT arose in the aftermath of a horrific world war whereboth the Allies and Axis committed atrocities but where only the victors (the Allies) prosecuted thevanquished (the Axis). The newly-created United Nations had neither the resources nor theimmediate worldwide support necessary to establish a war crimes tribunal. Thus, the victoriousAllies were a natural choice to mete out some form of punishment. In contrast, the current situation in the former Yugoslavia is a self-contained war where the eventual”victor” (if, indeed, there is one) would probably be the United Nations and not the Serbs orBosnian Serbs, Croats, or Muslims. The United Nations now has clear legal authority to prosecutewar criminals under its own charter, the 1948 Genocide Convention, the four Geneva Conventionsof 1949 and subsequent Additional Protocols I and II of 1977, and the 1984 Torture Convention,among others. Furthermore, no other international organization has the influence or experience of theUnited Nations. Thus, it is not surprising that the United Nations was the preeminent force behindthe establishment of an international tribunal to try violators of the laws and customs of war in theformer Yugoslavia. B. The International Military Tribunal at Nuremberg By late 1942, the Allied powers had begun to notice the various acts of cruelty and barbarism thatthe Nazis were carrying out against Jews,(note 9) Gypsies, Jehovah’s Witnesses, andhomosexuals.(note 10) On October 30, 1943, American President Franklin Roosevelt, BritishPrime Minister Winston Churchill, and Soviet Premier Joseph Stalin signed the MoscowDeclaration, in which the Allies formally resolved to prosecute war criminals.(note 11) However,there was no one common design for the punishment of the defeated Nazis: the British and theAmericans initially preferred summary execution(note 12) while the French and Soviets wereinclined to support the idea of a trial.(note 13) Eventually, the United States altered its stance and, ina memo dated April 30, 1945, argued that an execution-style judgment would be a crass politicalact that might transform the Nazis into martyrs and provide a platform for those intent on revitalizingnational socialism.(note 14) An international trial “would provide an historical record, would helpdevelop international standards of legal conduct, and would serve as a deterrent to future leaderscontemplating similar actions.”(note 15) By the summer of 1945, the Allied powers’ disagreements over punishment had been reconciledand representatives of the United States, the Soviet Union, France, and Great Britain met in Londonto formulate the principles under which a trial of the major Nazi war criminals would be conducted.On August 8, 1945, the United States, France, Great Britain, and the Soviet Union signed theAgreement for the Prosecution and Punishment of the Major War Criminals of the European AxisPowers.(note 16) This so-called “London Agreement” constituted two parts: the Agreement itself,and the Charter of the Tribunal. The Agreement advocated establishing an international militarytribunal for the trial of war criminals whose offenses had no specific geographical location,(note 17)while the Charter, which was annexed to the Agreement, set out the constitution, jurisdiction, andfunctions of the envisioned tribunal. Provision was made for other Member States of the UnitedNations to adhere to the Agreement, and by the Nuremberg judgment date of October 1, 1946,nineteen such States had done so.(note 18) The Allies agreed that the Tribunal would consist of four members, each with an alternate; onemember and one alternate were to be appointed by each of the Agreement signatories. Decisionswere to be by majority vote,(note 19) conviction would require at least three affirmative votes, andthe Tribunal was to be in session for a one-year period.(note 20) Article VI of the Charter set outthe three categories of crimes for which the accused Nazis would be tried: 1) Crimes Against Peace- planning, initiating, and waging wars of aggression, or in violation of treaties, or the conspiracy todo so;(note 21) 2) War Crimes – violations of the laws and customs of war with an emphasis onill-treatment of prisoners of war and civilians in occupied countries;(note 22) and 3) Crimes AgainstHumanity – the murder of civilians based on religious, political, or racial grounds.(note 23) Inaddition to enumerating the categories of crimes for which the accused Nazi leaders would be tried,the Allies also specified in the Charter that 1) the principal leaders of state were not exempt fromprosecution; 2) obedience to superior orders would not be a viable excuse, though in extenuatingcircumstances it might mitigate a sentence;(note 24) 3) accomplices were responsible for all actsperformed by any person in the course of a common plan or conspiracy to commit a specificcrime;(note 25) and 4) the Tribunal had the authority to declare that a group or organization towhich an accused belonged was a criminal organization.(note 26) Further, the Tribunal was requiredto state the bases for its findings of guilt and innocence,(note 27) and was accorded the right toimpose any punishment it deemed just, including execution.(note 28) The seat of the Tribunal wasestablished at Berlin,(note 29) and Nuremberg was chosen as the place of trial because of theavailability of the Palace of Justice and its adjoining prison in the suburb of Furth.(note 30) Thestage was set for the first day of trial, November 20, 1945.(note 31) C. The United Nations International Tribunal to Adjudicate War CrimesCommitted in the Former Yugoslavia The summer of 1991 was a volatile one for the former Yugoslavia. Croatia and Slovenia declaredindependence on June 25(note 32) and a sporadic civil war began in Croatia between the majorityCroats and the Serb minority, who had the backing of the Serb-dominated Yugoslav Federal Army.The political disputes between the federal Yugoslav government and the governments of theindividual republics that led to the secession of Croatia and Slovenia also affected the republic ofBosnia-Herzegovina. This Republic was a centrally-located region composed of 4.35 millionpeople, 43.7% of whom were Slavic Muslims, 31.3% Serbs, and 17.3% Croats.(note 33) TheSerb-dominated Yugoslav Federal Army, fearful of losing additional territory to breakawayrepublics, especially crucial air base facilities and arms production centers located inBosnia-Herzegovina, increased its support to the Bosnian Serbs, who began to take a hard-lineapproach in their negotiations with secession-minded groups in Bosnia.(note 34) On October 15, 1991, the republic of Bosnia-Herzegovina proclaimed its sovereignty and initiatedthe process to secede from what remained of Yugoslavia.(note 35) Pressure from all sidesimmediately began to mount upon the Bosnian government. The European Community required thatBosnia hold an independence referendum before it would recognize Bosnia as a sovereign State.The Bosnian Serbs, knowing they had the support of the Yugoslav Federal Army, were ready toresort to arms to prevent the republic from seceding.(note 36) Serbia, for its part, instituted aneconomic blockade against Bosnia-Herzegovina in an effort to coerce the region to remain in thenow Serb-dominated Yugoslavia.(note 37) Nonetheless, the Bosnian government proceeded withthe independence referendum on March 1, 1992. The Bosnian Serbs boycotted the vote,(note 38)limiting the total turnout to only sixty-three percent of Bosnia’s total population. The ninety-ninepercent majority of voters in favor of independence was, therefore, not at all representative.(note39) The European Community formally recognized Bosnia-Herzegovina as a sovereign State onApril 6, 1992, effectively providing the Serbs with a pretext to begin a full-scale assault against thefledgling republic.(note 40) By the summer of 1992, the situation in Bosnia had deteriorated to such a degree that, on July 29,Muhamed Sacirbey, Ambassador and Permanent Representative of Bosnia and Herzegovina, sent aletter to the United Nations Security Council requesting its intervention.(note 41) Shortly thereafter,the Security Council passed Resolution 771, paragraph five of which called upon States andinternational humanitarian organizations to make available to the Council any substantiatedinformation in their possession or submitted to them relating to the commission of human rightsviolations in the former Yugoslavia.(note 42) The United Nations Commission on Human Rightsdecided to appoint a Special Rapporteur, Tadeusz Mazowiecki, the former Prime Minister ofPoland, to investigate violations of humanitarian law in the former Yugoslavia (particularly inBosnia-Herzegovina) and to provide a preliminary report to the Secretary-General by August 28,1992.(note 43) His report reached the obvious conclusion that most of former Yugoslavia,especially Bosnia, was the “scene of massive and systematic violations of human rights, as well asserious grave violations of humanitarian law,” and that harassment, discrimination, torture, andviolence against the Muslim population were commonplace.(note 44) The Security Council acted again in early October 1992, adopting Resolution 780. It requested that
the Secretary-General create an impartial commission of experts to examine and analyze informationcollected in accordance with Resolution 771, together with additional information obtained throughtheir own investigations. The experts were to provide the Secretary-General with their conclusionson the human rights situation in the former Yugoslavia.(note 45) Pursuant to Resolution 780,Secretary-General Boutros-Ghali appointed a five-member commission later that month.(note 46) After repeatedly demanding that the warring parties in the former Yugoslavia refrain from violatinginternational humanitarian law and the established customs and laws of war, the Security Council, onFebruary 22, 1993, resolved to create an international tribunal to prosecute the offenders.Additionally, it requested that the Secretary-General formulate a proposal to carry out thisresolution.(note 47) Some three months later, on May 25, 1993, after having approved theSecretary-General’s report, the Security Council adopted the Statute of the International Tribunal.Its purpose was to prosecute those individuals responsible for serious violations of internationalhumanitarian law committed in the former Yugoslavia from January 1, 1991, until the eventualrestoration of peace.(note 48) Unfortunately, the expectation that the Tribunal would convene shortly after its creation, quicklyestablish rules of procedure and evidence, and issue detailed indictments against known violators ofhuman rights in the former Yugoslavia, has never materialized into a reality. Politicking,(note 49)lack of funds and personnel, and the world community’s increasing resigned acceptance of the rapecamps, the forced sodomy and castration, and the calculated ethnic cleansing of Muslims, have allallowed the Tribunal to delay taking active steps to bring the war criminals to justice.(note 50) The apparent apathy of the international community to the situation in the former Yugoslavia hasgiven the Tribunal an unclear mandate to function as anything more than a ceremonial body. It wasonly in September 1993 that eleven judges were elected by the General Assembly to servefour-year terms expiring November 17, 1997.(note 51) After a formal opening ceremony in TheHague on November 17, 1993, the Tribunal adjourned. It has since been working on its rules ofprocedure and evidence,(note 52) and is scheduled to hold its first formal, substantive session onApril 24, 1994.(note 53) The delay has increased because the Tribunal’s ability to issue thenecessary detailed indictments for violators of human rights in the former Yugoslavia has beenundermined by the recent resignation of the U.N.-appointed prosecutor for the Tribunal.(note 54) Awar crimes tribunal unable to issue indictments and secure defendants is like a cobra in a glass cage:potentially threatening but inevitably harmless. Indeed, even if the Tribunal should overcome theseprocedural hurdles, it still must confront other, more formidable, substantive obstacles. Manyquestions are raised: What charges will be filed against the defendants? What substantive lawprovides a valid basis for the Tribunal’s authority? How does one procure evidence before itdisappears forever? How does one ensure a fair and impartial trial? What defenses should beallowed? In 1945, the International Military Tribunal at Nuremberg confronted these same questions.However, the IMT, because of its unique, precedent-setting nature, was in the unenviable positionof having to start from scratch in all respects. The United Nations International Tribunal on theformer Yugoslavia is in no such position because the Allies at Nuremberg have already set the stage.The legal authority for a war crimes tribunal, an issue that implicated the very validity of the processand results at Nuremberg, now has a firm grounding in the U.N. Charter itself, the codifiedNuremberg Principles, the Genocide Convention of 1948, the four Geneva Conventions of 1949and Additional Protocols I and II of 1977, the Torture Convention of 1984, and other internationallaw codifications adopted since 1945. The nature of the defined crimes has expanded from “CrimesAgainst Peace,” “War Crimes,” and “Crimes Against Humanity” to include “grave breaches” ofcertain fundamentals of international humanitarian law. Additionally, the problem of ex post factoapplication of laws at the Nuremberg trial is no longer an issue since the laws under which any futureYugoslav defendants would be prosecuted were already in existence when such potentialdefendants committed their crimes. III. The Substance of Nuremberg A. The Nuremberg Principles The Nuremberg trial of major Nazi leaders was innovative for its time. Despite various criticismsthat questioned the legal validity and credibility of the process at Nuremberg,(note 55) the trialbefore the IMT and the numerous later trials conducted by the American, British, and French intheir respective occupied zones, definitively established individual responsibility for war crimes,crimes against peace, and crimes against humanity. The Nuremberg trials made clear that even thehighest State official would be liable for the systematic commission of gross violations of humanrights.(note 56) This return to fundamental principles of international law was a complete rejection of”the extreme positivist assertion that the State, supreme within its own sphere, sovereign and equalto other States in international law, shields its officials from international sanction by virtue of Stateprivileges and immunities.”(note 57) In late 1946, the United Nations General Assembly adopted Resolution 95(I), which approved andcodified the principles of the Charter and Judgment of the IMT at Nuremberg.(note 58) The firstNuremberg Principle stated that any individual who commits an act that constitutes a crime underinternational law is personally responsible for the act and is subject to severe penal sanction.(note59) The fundamental rule underlying Principle I is that “international law may impose duties onindividuals directly without interposition of internal law.”(note 60) The second Nuremberg Principle noted that “the fact that internal law does not impose a penalty foran act which constitutes a crime under international law does not relieve the person who committedthe act from responsibility under international law.”(note 61) An individual who has committed aninternational crime that is punishable under international law is liable for his act, regardless of theprovisions of internal law – this principle is credited with having established the “supremacy” ofinternational law over national law.(note 62) The Tribunal also ruled that individuals are accountable for crimes committed by them as heads ofState or as responsible government officials.(note 63) Under Principle III, the fact that a personacted in this capacity while committing a gross violation of human rights does not relieve him frominternational responsibility. Indeed, the Tribunal explicitly rejected the concept that wars are foughtby States, which alone must answer for their consequences, and instead held that leaders who planand wage aggressive war or direct others to commit crimes must answer personally for theiractions.(note 64) Principle IV stated that “the fact that a person acted pursuant to an order of his Government or of asuperior does not free him from responsibility under international law. It may, however, beconsidered in mitigation of punishment, if justice so requires.”(note 65) The idea is that “superior’sorders” is not a defense, provided that a moral choice was possible at the time the crime wascommitted. Finally, Principle V addressed the issue of fairness and impartiality during a trial conducted for grossviolations of international humanitarian law. Individuals charged with war crimes should not be dealtwith summarily, but rather should have a fair trial during which they are presumed innocent untilevidence establishes guilt beyond a reasonable doubt. This principle lessens the likelihood that pettyrevenge will supplant justice.(note 66) B. The Legacy of Nuremberg The Nuremberg Principles have had a profound impact on international criminal jurisprudence. Notonly have the principles established by Nuremberg been incorporated into many domestic legalsystems,(note 67) but they have also influenced the Charter of the United Nations(note 68) and themeaning and legal status of many of the norms(note 69) found in the 1948 GenocideConvention,(note 70) the four 1949 Geneva Conventions and their 1977 Additional Protocols I andII,(note 71) and the 1984 United Nations Convention Against Torture.(note 72) The normsapparent in these and other multilateral human rights treaties adopted since Nuremberg are evidencethat the majority of nations recognize the significance of the Nuremberg Principles in contemporaryinternational law.(note 73) The Nuremberg Charter by itself, however, is neither a true precedent in international law nor verystrong authority for the principle of individual responsibility for war crimes.(note 74) Although theIMT at Nuremberg was international, [i]n the sense that it was the creation of more than one State, was not part of the judicial system of any one State, and it applied international, rather than national law, the fact that none of the Judges were of a nationality of one of the defeated States or even of a neutral State, contradicts the notion that the Tribunal was truly international in character.(note 75) The partiality of the IMT is thus more indicative of ad hoc national military tribunals and not of atruly impartial international tribunal such as the United Nations International Tribunal.(note 76) There are additional, purely formal reasons why the judgment of the Nuremberg Tribunal is not aprecedent in international law. A true precedent has binding force upon later adjudications of asimilar nature. However, the IMT was not a permanent court and no other international court withpermanent criminal jurisdiction over individuals has been created since Nuremberg. Thus, thejudgment of the IMT cannot constitute a truly binding and authoritative precedent in internationallaw.(note 77) Nonetheless, the consensus today is that the Nuremberg Principles themselves are an integralcomponent of general international law and that individual responsibility for war crimes has becomewidely accepted as an international legal norm, despite the lack of a permanent judicial body toenforce it.(note 78) Thus, the Nuremberg Principles, in conjunction with the U.N. Charter, theGenocide, Geneva, and Torture Conventions, various international criminal law codifications, andrecent U.N. Resolutions addressing the situation in Bosnia-Herzegovina, provide sufficient legaljustification to indict, arrest, and prosecute those individuals in the former Yugoslavia who haveeither committed or sanctioned barbaric acts in direct violation of international human rights law andthe laws and customs of war. IV. The United Nations International Tribunal toAdjudicate War Crimes Committed in the FormerYugoslavia: Correcting Nuremberg’s Defects, ConfrontingNew Challenges Despite the general acceptance by the world community of the human rights concepts embodied bythe Nuremberg Principles, the war crimes trial itself still remains controversial. Most of the criticismconcerns the unprecedented nature of the Nuremburg proceedings, the possible lack of judicialimpartiality, and the prosecution and conviction of the Nazi leaders for violating the novel legaldoctrine of Crimes Against Peace.(note 79) Indeed, the ex post facto application ofAllied-formulated laws, the tenuous legal foundation for the Tribunal’s existence and authority, andthe presence on the bench of judges from nations that had just vanquished the defendants in abloody, prolonged war, are all factors that have tended to diminish the validity and impact of theNuremberg precedent. Fortunately, the new U.N. International Tribunal has neither the problem of legal justification thatplagued the Nuremberg indictments nor the concern of “victors’ justice” that implicated theimpartiality and fairness of the Nuremberg trials as a whole. A sufficient legal basis to indict andprosecute Yugoslav war criminals exists in the numerous Conventions, Protocols, and internationalhumanitarian law codifications that have entered into force since 1945. The United Nations itself,through its Charter and recent Resolutions on the Yugoslav conflict, has uncontested authority tocreate a war crimes tribunal. Further, because the United Nations is an impartial bodyrepresentative of the international community at large, it is not susceptible to charges of meting out”victors’ justice.” Nonetheless, the newly-created Tribunal confronts obstacles foreign to its Nuremberg counterpart.Evidence of human rights violations is either scarce or rapidly disappearing, the ability to apprehendviolators is doubtful, and the effectiveness of the Tribunal has been undermined by lack of funding,personnel, and world interest. Indeed, the very existence of the Tribunal is vulnerable to theoverriding desire of the United Nations to effect a comprehensive peace agreement for the region.Thus, any negotiations most probably will include granting amnesty to war crimes offenders. Theremainder of this Note will address 1) the legal bases available to the U.N. International Tribunal; 2)the obstacles the U.N. Tribunal will need to surmount in order to validate its mandate; and 3) theprospects for the creation of a permanent international criminal court that would have jurisdictionover war crimes and other offenses. A. Jurisdictional Bases 1. The Charges The world community has known for some time of atrocities committed in the former Yugoslavia,particularly in Bosnia-Herzegovina. Torture, summary executions, internment in concentration campsreminiscent of Nazi Germany, systematic mass rape, forced prostitution, inhuman treatment ofprisoners and civilians, and destruction or confiscation of private property not justified by militarynecessity have all been documented and would qualify as war crimes under Nuremberg, customaryinternational law, and the “grave breaches” provisions of the 1949 Geneva Conventions and 1977Additional Protocols I and II thereto.(note 80) Further, the fact that these crimes have beencommitted on a mass scale implicates charges of genocide and crimes against humanity.(note 81) Many, if not all, of these crimes are the result of the “ethnic cleansing” of Bosnia-Herzegovina byBosnian Serbs. Professor Meron defines this practice as consisting of: Harassment, discrimination, beatings, torture, summary executions, expulsions, forced crossings of the lines between combatants, intimidation, destruction of secular and religious property, mass and systematic rape, arbitrary arrests and executions, deliberate military attacks on civili
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