Statement Regarding the
Illegitimacy of the ICTY
University of Belgrade - Faculty of Law,
September 10, 2001
TO 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
To the Trial Chambers in all the cases before the Tribunal
PROPOSAL FOR APPEARANCE BEFORE TRIAL CHAMBERS BY VIRTUE OF RULE 74 ON PROCEDURE AND EVIDENCE (AMICUS CURIAE)
The Professors and Assistant Lecturers of the Faculty of Law of the University of Belgrade have been following with great attention the work of 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, as the institution that, by a number of elements, is new and specific and all the more interesting therefore from the purely theoretical standpoint and then also as an organ whose work will strongly affect the current and future situation in the space of our country and the situation throughout the region. A large group of teachers and associates of our institution has already in the country itself taken initiatives in order to ensure respect for the constitutionality and legality in the field of prosecution of persons charged with violations of international humanitarian law and especially in the field of respect for the legal norms concerning fundamental human rights. It is our firm belief that the prosecution of perpetrators of criminal offences which have violated international humanitarian law is one of the imperatives and prerequisites for the normalization of relations and for restoring stability in the space of the former Yugoslavia just as it is the case in all regions of the world where such offences were and are still being committed and are regrettably a regular corollary of virtually all wars and conflicts. However, we also firmly believe that one cannot create law out of non-law and that therefore when prosecuting and trying in court even such serious offences as those that the Tribunal has been dealing with, the rules of international law must be strictly respected and particularly those among them that protect fundamental human rights and freedoms that are of a universal nature and that as jus cogens, within the framework of international law, have a hierarchically superior position vis-à-vis the majority of other rules. This action-taking in accordance with the law is everywhere a necessity that cannot be called into question. However, in the case of the conflicts that took place in the past ten years or so in the former SFRY, respect for law is all the more essential as these were conflicts that left tragic consequences on virtually all peoples in these parts, conflicts that represent at the same time both the expression and the integral part of the tragic fate of these peoples, whose troublesome past left behind a number of disputes and unresolved situations over which they quarrelled and waged wars also throughout their history and over which they continue to quarrel even today.
Bearing in mind both the mentioned necessity of strictly respecting law, both generally and specifically regarding the issues related to the conflict in the former Yugoslavia, and the huge real importance that the Tribunal and its works have for our country and the region, for our fate and the fate of future generations in these parts, we consider it important and from the standpoint of our human and our professional conscience necessary to approach the Tribunal and request that our representatives be allowed by the Trial Chambers in the above mentioned proceedings to appear in accordance with Rule 74 on procedure and evidence before the Trial Chambers conducting these proceedings and present for each of these proceedings their specific objections based on the general objections that we shall make in this correspondence, which concern respect of international law in the Tribunal’s work and in particular the norms protecting human rights and fundamental freedoms.
We were prompted to take this step also by the statement by Judge May during the first appearance of former President Slobodan Milosevic before the Tribunal, to the effect that the international law would be applied to the accused in future. This would have to mean also that in the course of proceedings the Tribunal would respect all of his human rights, both those prescribed by the International Covenant on Civil and Political Rights and others. This statement, of course, also applies to all other indicted persons.
We wish to point out that we decided to approach the Tribunal in this way even though we share the view of a large number of top-ranking international legal experts world-wide that the International Tribunal for prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 was established in the manner contrary to the UN Charter in support of which we shall also present our arguments but as the Tribunal does exist in fact as it functions and keeps in custody several dozens of indicted persons, both Serbs and Croats and Muslims, which from our viewpoint and from the viewpoint of law is all the same, our professional and human responsibility and conscience make it incumbent upon us in this way, too, to try to contribute to the respect of international law with regard to all these indicted persons, no matter which national grouping they belong to because they are all equal before the law.
We are, likewise, of the opinion that in the interest of law, justice and peace, it would be useful in our region for the Tribunal’s relevant Trial Chambers to approach the Faculties of Law in Sarajevo, Zagreb and other university centre in the space of the former SFRY, whose scholars, whose competence we had the opportunity to personally witness during many years of close co-operation, also could make an important contribution to ensuring consistent and impartial law enforcement with respect to all the indicted for violations of international humanitarian law. For our part, we have been prompted to approach the Tribunal in this manner also by the fact that unlike the state authorities from other states formed in the space of the former SFRY that care for the status and rights of their citizens being held on trial at the Tribunal, as well as for the dignity of their own state and peoples living in it, our state authorities do not perform their duty with respect to their citizens and their country but, as a rule, are doing precisely the opposite. Nevertheless, we wish by our remarks and suggestions to promote justice and respect for law, also relative to the citizens of other states from the region, believing it to be our duty to adopt a strictly professional attitude on this plane as well and treat all equally.
In the text below, we shall present (I) our view of the legal validity of the acts establishing the Tribunal, but would not discuss that topic further, since the Tribunal actually exists and tries people and that in these proceedings in every case international law should be observed; as well as (II) our general observations regarding the set-up and the works of the Tribunal, which our representatives would present in more specific terms on each individual case if the relevant Trial Chambers would grant permission for appearance in the proceedings in the amicus curiae capacity.
I. ABSENCE OF LEGAL GROUNDS FOR ESTABLISHING THE HAGUE TRIBUNAL IN THE SECURITY COUNCIL ACTS
The Criminal Tribunal for the Former Yugoslavia was established by UN Security Council resolutions 808/93 and 827/93 and, as explicitly stated in these acts, in accordance with Chapter VII of the UN Charter.
However, the legal grounds of the acts establishing the Tribunal, can be challenged, i.e. it can be noted with full certainty that the said Security Council resolutions were adopted in contravention of the UN Charter. The Tribunal’s establishment is legally problematic, i.e. contrary to the valid rules of international law and primarily the UN Charter, on several grounds.
To start with, the Security Council is the UN executive organ responsible for taking care of peace and security world-wide and as such it may not establish judicial organs. It has the right to establish its subsidiary organs (Article 29 of the Charter stipulates: "The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions"), but as it itself has no right to perform any judicial function, it cannot transfer to its subsidiary organ any powers that it does not hold (and within the powers it has, it may not transfer to its subsidiary organs the decision-making right, because this is the Security Council’s exclusive right that is exercised according to a strictly prescribed procedure). This interpretation is also confirmed by Article 28 of the Rules of Procedure of the Security Council adopted on 24 June 1946 based on Article 30 of the Charter (that is still, even after 55 years, called "Provisional Rules of Procedure"). This Article of the Rules of Procedure reads as follows: "The Security Council may appoint a commission, a committee or a rapporteur for a specific question". A year after the adoption of the Charter, the Security Council, where the representatives of the key UN founding members played a dominant role, notably important figures such as Ernest Bevine, Georges Bidault, Joseph Paul-Boncour, Edward R. Stetinius Jr., Andrei Y. Vyshinsky, Andrei A. Gromyko, etc. that may virtually be considered the Charter’s authentic interpreters, thus interpreted in the mentioned way which subsidiary organs the Security Council might have.
In addition, the Security Council’s competence under Article 24 of the UN Charter is the following:
"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 duty under this responsibility, the Security Council acts on their behalf.
2. In discharging these duties, the Security Council shall act in accordance with the purposes and principles of the United Nations."
As part of the thus defined function, the Security Council’s key task is to take care of respect for the principle set forth in Article 2, item 4 of the Charter, according to which: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other way inconsistent with the purposes of the United Nations." In case this principle is violated, i.e. that there is "a threat to peace, violation of peace or aggression" (Article 39 of the Charter), the Security Council may decide on the implementation of measures (diplomatic, economic-financial and military), that must be based on Chapter 7 of the UN Charter and whose aim it is to maintain or restore peace and security in the world. In international law, i.e. the part of it concerning war and peace, there is a traditional division into the rules concerning the right to war (jus ad bellum) and the rules regulating the rules of warfare, therefore, those that are applied when the war has already broken out in order for the war as an otherwise inhumane phenomenon, to be made as humane as possible, i.e. to alleviate the horrors (this is about the so-called right in war – jus in bello). With its above mentioned role of taking care of peace and security in the world, i.e. of respecting the ban on the threat of force and the use of force, the Security Council is an organ that looks after the implementation of the rule jus ad bellum. International criminal law, for its part, has as its aim, primarily to prevent and punish criminal behaviour during war conflicts, i.e. it aims at humanizing warfare, i.e. primarily falls under the framework of "the law in war"- "jus in bello". Of the criminal offences within the framework of international law, it is only the so-called "crimes against peace" fall within the framework of "jus ad bellum", i.e. it is only by these criminal offences that the rules within the framework "jus ad bellum" are violated, while all other criminal offences fall within the framework of "jus in bello". The Statute of The Hague Tribunal stipulates that this Tribunal shall try virtually all offences within the framework of international criminal law except crimes against peace, i.e. all the offences with the exception of those directed against peace and security in the world. Therefore, of all international criminal offences, The Hague Tribunal does not deal only with those offences that violate the values for whose preservation the Security Council is responsible (but, the Security Council does not ensure the preservation of those values through any judicial but through its executive function). Consequently, the Criminal Tribunal for the former Yugoslavia, through its judicial function, does not prevent precisely the offences that violate the values for whose protection the Security Council is responsible, meaning that the aims that it has to attain and the aims of the Security Council whose subsidiary organ it is, are not the same.
It follows that the Security Council was not authorized to establish the Tribunal neither from the standpoint of the nature of its function nor from the standpoint of the aims that it aspires to fulfill.
In addition to the above mentioned, the International Criminal Tribunal for the former Yugoslavia, is a Tribunal only for crimes committed in a particular space, i.e. in the territory of several states formed following their secession from the former Yugoslavia. In addition to this Tribunal, such a tribunal exists only for Rwanda. On the other hand, the criminal offences of the same nature were committed and are being committed in war-torn areas the world over. It is not only that selective justice cannot be considered true justice, but this selectively established justice also contravenes the principle of sovereign equality of states proclaimed in Article 2, item 1 of the UN Charter.
In support of the above arguments, we shall recall the indubitable authority of Professor Mohammed Bedjaoui, President of the International Court of Justice. In his book "The new world order and the control of the legality of the Security Council acts" ("Nouvel ordre mondiale et controle de la legalite des actes du Conseil de Securite", Bruxelles, 1994), he included in the eight Security Council resolutions that he considered legally most disputable and that would, as such, be the first to be subjected to control, also the two mentioned resolutions on the establishment of the ad hoc Tribunal for the former Yugoslavia – resolutions 808/93 and 827/93.
The only legally valid way in which an international war crimes tribunal may be established is the one resorted to in Rome in 1998, when the Statute was adopted of the Permanent International Criminal Court of a general jurisdiction. Regrettably, this Statute has not yet come into force due to the insufficient number of instruments of ratification.
Since the Security Council is a political organ and since its decisions are of a political nature and given that in international law it is considered legitimate and permissible for the states to oppose the implementation of political decisions taken by international organizations, including the UN, that are unlawful, it may be possible to conclude that the mentioned Security Council resolutions whereby the Tribunal was established do not create legally valid obligations from the standpoint of international law and law in general. With respect to the UN Security Council, this conclusion stems from Article 25 of the UN Charter, which reads as follows: "The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." In its advisory opinion of 21 June 1971 (in the case of the legal consequence of the protracted presence of South Africa in Namibia despite Security Council resolution 276/1970), the International Court of Justice confirmed that the states are not duty-bound to accept and implement the Security Council decisions that are not in accordance with the Charter, which would, by the way, be clear by itself even if it were not written anywhere.
Nevertheless, as we have already noted, despite the mentioned objections related to the legal grounds of the Tribunal’s establishment, we have decided to request that our representatives be allowed to appear before the Trial Chambers in all the mentioned cases in accordance with Rule 74 on Procedure and Evidence. We proceed from the fact that the Tribunal exists and functions and from our wish for international law to be respected in all the mentioned proceedings.
II. THE SET-UP AND WORK OF THE HAGUE TRIBUNAL IS CONTRARY TO INTERNATIONAL LAW PRIMARILY IN THE FIELD OF HUMAN RIGHTS
What poses a particular problem when the Hague Tribunal is concerned is the fact that both its set-up and the method of work are, to a considerable extent, contrary to a number of rules in international law, particularly those in the field of human rights and fundamental freedoms. Especially important among these rights are those stipulated in the International Covenant on Civil and Political Rights, adopted and open for signature by UN General Assembly resolution 2200A (XXI) of 16 December 1966, that took effect on 23 March 1976, as one of the central documents adopted internationally. The Tribunal’s rules are often contrary also to the general legal principles as recognized by the civilized nations and particularly the general principles of criminal, substantive and procedural law having universal value (legality of sanctions, two-instance court proceedings, division of legislative and judicial functions, etc.). It is also noteworthy that the Hague Tribunal works also in contravention of a number of provisions of the European Convention on Human Rights and Fundamental Freedoms, as well as the practice of the European Court of Human Rights.
Finally, a number of Rules of Procedure and Evidence as well as a number of practical procedures before the Tribunal run counter to the rules of the indicted person prescribed in Article 21 of the Tribunal’s Statute that correspond to the rules stipulated in Article 14 of the International Covenant on Civil and Political Rights, so that our remarks concerning respect for Article 14 of the Covenant as a rule also apply to respect for Article 21 of the Statute.
Mentioned below are just some of the most important violations of international law that appear in the Tribunal’s set-up plan and in its works.
___1. Legislative and judicial functions are mixed
The Tribunal appears both as a legislative and as a judicial body. The judges write the Rules of Procedure and Evidence themselves and are authorized to amend them (Article 15 of the Statute titled "Rules of Procedure and Evidence" stipulates: "The judges of the International Tribunal shall adopt the Rules of Procedure and Evidence for work pending trial, for the conduct of court proceedings and appellate proceedings, for the acceptance of evidence, for the protection of victims and witnesses, as well as for other relevant issues". They, therefore, both make law and apply it.
The Rules of Procedure and Evidence are frequently amended. In eight years of the Tribunal’s existence, it developed eighteen amendments to the Rules. Such frequent amendments of the Rules lead to legal insecurity.
The legal insecurity and inadequacy of the Rules of Procedure and Evidence is also augmented by the fact that right from day one they represented a mixture of different systems and that their interpretation often largely depends on the judge that is applying them and particularly on the legal system and tradition in the framework of which he was trained. Such a nature of the rules and their too frequent amendments make it impossible to establish a stable court practice. As a result, neither the defense nor the prosecutors nor the judges themselves are able to fully follow and master this practice.
What additionally undermines legal security is also the fact that the English and the French versions of the Rules do not always coincide as well as the fact that with respect to some issues, there is a discrepancy between the Rules and the Statute (which is an act superior to the Rules) so that the judges, at their own discretion, have the possibility to opt for solutions that are more convenient to them at the given moment. The discrepancies of the mentioned types that will be presented in this paper are only a part of these discrepancies.
The absence of separation of the legislative function from the judicial function also gives the judges the possibility and the authorization to interpret these Rules depending on circumstances and without any control. The defense has no means or possibility to challenge the interpretation of these rules by the Tribunal even if that interpretation is evidently incorrect. It does not have either the possibility to challenge the legality of these rules even in cases when they evidently contravene the Statute’s provisions which often happens in practice as we shall see from some examples in the text below.
__ 2. The prosecutor’s and the judge’s functions are mixed
According to its Statute, the Tribunal was established as 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". This is how it was defined also in the Rules of Procedure and Evidence.
Consequently, judging by the text of the Statute, the Tribunal’s task is prosecution. This is clearly not a normal function of a court that should try the accused (the French version of the Statute, true, is more correct than the English version because it stipulates that the Tribunal shall "try in court" (juger) – "Le Tribunal international penal pour juger les personnes presumees responsables de violations graves du droit international humanitaire commises en ex-Yougoslavie depuis 1991" – however, in the text of the Rules of Procedure and Evidence, the word "juger", meaning ‘try in court’, has been replaced by the word "poursuivre", meaning "prosecute").
Both versions (the English and the French) of the Rules of Procedure and Evidence take the English version of the definition from the Statute. Describing the institution under discussion as the "International Tribunal (Court) for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991".
The mentioned inappropriate determination of the Tribunal’s function is not solely limited to linguistic imprecision. It finds its practical implementation also in the fact that the Tribunal (i.e. the Trial Chambers and the Prosecutor’s Office) represents a single organizational unit with a joint Secretariat. Such institutional unity of the Prosecutor’s Office and the Court is unacceptable and inconceivable in any modern judicial system.
Further materialization in the mentioned definitions of the proclaimed "prosecuting" role of the Tribunal is also effected through its actions that are characterized by violations of a number of rights of the indicted persons and prevention of providing adequate defense which will be discussed later on.
What is also indicative in the mentioned definitions is the fact that the Tribunal was established to prosecute "persons responsible…". Defining things in this way runs counter to the modern legal and social achievements, namely, in contemporary world, any normal judicial system is characterized by the fact that courts try "indicted persons" who are presumed innocent until proven guilty (Article 14, paragraph 2 of the International Covenant of Civil and Political Rights stipulates: "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."; a similar provision is also contained in Article 21 paragraph 3 of the Tribunal’s Statute, but this provision runs counter to the manner in which the Tribunal has been defined and the way it functions). The mentioned French versions of the Statute and the Rules go even a step further to deny this fundamental premise of modern justice and they indicate that the Tribunal shall try in court or prosecute "persons presumed responsible…" ("les personnes presumees responsables…").
This establishment of the "presumption of guilt" does not remain solely verbal but also has its practical implementation, to be discussed later on.
__ 3. Violation of the two-instance proceedings principle
Article 14, paragraph 5, of the International Covenant on Civil and political Rights, prescribes the right to two-instance proceedings in the following way: "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." The mentioned provision evidently presumes a distinction between a lower and higher judicial instance, a thing considered normal and commonplace in all modern legal systems.
At the Hague Tribunal, the same judges are members of both first-instance (the term "first-instance" is used in the French version of the text, while the appropriate term from the English version is "Trial") and Appellate Chambers. Namely, Rule 27 on Procedure and Evidence reads:
"Rule 27
Rotation
A. Permanent Judges shall rotate on a regular basis between the Trial Chambers and the Appeals Chamber. Rotation shall take into account the efficient disposal of cases.
B. The Judges shall take their places in their new Chamber as soon as the President thinks it convenient, having regard to the disposal of part-heard cases.
C. The President may at any time temporarily assign a member of a Trial Chamber or of the Appeals Chamber to another Chamber."
A judge, therefore, may be in a first-instance Chamber in one case and a member of the Appeals Chamber in another. Therefore, the decision of every judge acting as a member of a first-instance Chamber are subject to control by other judges who are in that case members of the second-instance Chamber, whereas in other cases that very same judge takes part in second- instance proceedings in the control of the work of these other judges that now appear as members of second-instance Chambers. This is how the system of mutual cross-control functions, impeding clear two-instance nature in trials and may result in deviations primarily towards a benevolent attitude and confirmation of first-instance decisions made by other judges when acting in second-instance proceedings, so that they can be expected to reciprocate this benevolence when their roles are reversed.
This double position of judges undermines considerably their independence and impartiality.
This organization also gives the judge the possibility to take part in decision-making as a second-instance judge and at the same time to apply the stands from such decisions as the court practice established in second- instance proceedings in cases that he tries as a judge in first-instance proceedings.
The paradoxical possibility for the same judge to decide on the same legal issue in one case within the framework of a first-instance Chamber and at the same time in a second case within the framework of an Appeals Chamber gives this judge a legally unacceptable benefit of providing to his stand and first-instance decision simultaneously the legal force and the confirmation of judicial practice established at the second-instance level.
The true unacceptability of such a rule that allows the same judges to participate both in first-instance and Appeals Chambers is further strongly accentuated by the fact that the rotation does not take place under any rules laid down in advance, but according to the decision of the President, who is authorized at any moment to temporarily assign a judge to another Chamber.
4. The rules on detention and the practice when ordering detention – breach of the right to liberty
Before the Tribunal, detention is a rule and temporary release an exception (Rule 64 stipulates that "upon being transferred to the seat of the Tribunal, the accused shall be detained…", whereas Rule 65, paragraph (A): "once detained, an accused may not be released except upon an order of a Chamber").
This contravenes international law and particularly the International Covenant on Civil and Political Rights. In its Article 9, this Covenant proclaims the right to liberty as one of the basic human rights. Article 9, paragraph 3, inter alia, stipulates: "It shall not be the general rule that persons awaiting trial shall be detained in custody…".
The judges of the Hague Tribunal are not duty-bound to elaborate on their arrest warrants and detention decisions. This contravenes Article 9, paragraph 2 of the International Covenant on Civil and Political Rights, which reads: "Anyone who is arrested shall be informed, at the time of arrest of the reasons for his arrest and shall be promptly informed of any charges against him". This situation also contravenes principle 11/2 of the UN General Assembly resolution 173 (XLIII) of 8 December 1988, titled "A set of principles for protecting all persons placed in any form of custody or detention", according to which: "The person placed in detention and possibly his Defense Counsel shall be communicated without delay and in full the arrest warrant and the reasons explaining it".
Detention pending trial before The Hague Tribunal is of an indefinite duration. In practice, detention pending trial lasts very long and, bearing in mind the length of the trial itself, this problem becomes even more pronounced and more unacceptable. This long detention contravenes the first sentence of Article 9, paragraph 3 of the International Covenant on Civil and Political Rights. It reads as follows: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release".
Too long a detention pending trial is not consistent with the court practice of the European Court for Human Rights that applies the European Convention on Human Rights and Fundamental Freedoms where detention is limited to up to two years (in the FRY law it is up to six months). In the case of Momir Talic, the two-year period of detention is just about to expire and the trial has not even begun.
At The Hague Tribunal, there is no right to compensation of damage in case of unlawful detention either. This contravenes Article 9, paragraph 5 of the International Covenant on Civil and Political Rights, which reads: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation".
5. Legality of sanctions
Article 15 of the International Covenant on Civil and Political Rights prescribes:
"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law at the time when it was committed. Nor shall a heavier be imposed than the one that was applicable at the time when the criminal offence was committed.
…
2. Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which at the time when it was committed was criminal according to the general principles of law recognized by the community of nations."
This is about the rule of criminal and international law that usually finds expression in the sentence: "Nulum crimen sine lege, nula poena sine lege", and also comes under the corps of the universally accepted basic human rights.
When it comes to the legality of determining the criminal offences which are tried before The Hague Tribunal, this legality cannot be called into question even when it is about the offences committed before the Tribunal’s Statute was adopted. For, they were stipulated as such by different international instruments (Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions on International Humanitarian Law), as well as by national Criminal Codes. However, no international norm envisaged sanctions for violation of international humanitarian law before the Tribunal’s Statute adopted in May 1993. Penalties are prescribed for the crimes from this group stipulated by the Criminal Law of SFR Yugoslavia and all the states formed in that space. Namely, for each offence a separate minimum and maximum penalty may be imposed within the scope of the general minimum and maximum penalty applicable in the respective legal systems.
However, the Tribunal’s Statute stipulates penalties very vaguely. This is inappropriate for modern criminal law. Article 24 of the Tribunal’s Statute prescribes:
"The first-instance Chamber shall pass only prison sentences. When determining the terms of imposing a prison penalty, the first-instance Chamber shall be guided by the general practice of passing prison sentences applied by the courts in the former Yugoslavia."
The former Yugoslavia’s Criminal Code stipulated as the heaviest penalty the term of imprisonment of up to 15 years and exceptionally a 20-year term but only as a substitute for the death penalty.
However, the Tribunal’s Rule of Procedure and Evidence also contravene even the thus formulated Article 24 of the Statute. Namely, Rule 101 stipulates the possibility of passing a life sentence: "The persons found guilty by the Tribunal may be given a term of imprisonment that may go up to life sentence". In addition, it is noteworthy that the Rules of Procedure and Evidence, as a document containing procedural rules should not even regulate the term of imprisonment because this is an issue governed by criminal substantive law.
This evident discrepancy between the Rules and the Statute as the superior of the two cannot be denied by the claim that the quoted Article 24 of the Statute recalls the conditions of serving prison sentences in the former Yugoslavia. Namely, it is clear that that provision concerns the duration of prison sentences in the former SFRY as this was the only thing that could be determined by the courts. The same cannot be said of the conditions of imprisonment that the courts do not deal with. The French version of the Statute is even more explicit on the matter. Namely, instead of the expression "general practice regarding prison sentences in the courts of the former Yugoslavia", this version uses the words "la grille generale des peines d’emprisonnement appliquee par les Tribunaux de l’ ex-Yougoslavie ("General frameworks for determining prison sentences applied by the courts in the former Yugoslavia". The term "grille" denotes the frameworks, i.e. the permitted range for determining the length of prison sentences. This interpretation of ours is also confirmed by the UN Secretary General’s report of 3 May 1993, which clearly states that: "when determining the duration of prison sentence, the first-instance Chamber shall be guided by the general frameworks for determining prison sentences applied in the courts of the former Yugoslavia".
Finally, it should be pointed out that in its practice so far the Tribunal passed prison sentences largely exceeding the maximum prison sentence that could be passed in the formed SFRY.
6. Absence of reasons for exclusion of criminal responsibility
Neither the Statute nor the Rules envisage any reason for the exclusion of criminal responsibility. However, modern criminal law, i.e. the general principles of criminal and international law, generally recognize and accept the existence of reasons for the exclusion of criminal responsibility (such as necessary self-defense, extreme need, coercion, etc.).
In its practice, too, the Tribunal does not take into account the existence of such circumstances. For example, in the case of Drazen Erdemovic, the Tribunal refused to treat coercion as a basis for the exclusion of responsibility but simply as an extenuating circumstance when deciding how heavy a penalty to impose. (According to Erdemovic’s claim, which the Tribunal accepted as justifiable, he had actually been threatened with death unless he committed the crimes of murder for which the Tribunal later tried him).
7. Violation of the right to defense by treating elements relevant for defense as confidential
In its work, the Tribunal has the possibility to issue sealed indictments (Rule 53 on Procedure and Evidence, titled "Non-disclosure of Indictment", paragraph (A) stipulates: "(A) In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order."). One cannot challenge the right of the prosecuting organs to prosecute suspects without disclosing that they are after them. However, it is not legally acceptable and sustainable that a given person is aware that proceedings have been initiated against him and, in particular, that the indictment has been issued against him without making it possible for him to learn why he is being prosecuted and by keeping that fact confidential. Thus, for instance, in the case against Zeljko Raznatovic Arkan, the Tribunal announced that Arkan had been indicted without letting the public or the accused learn about the contents of the indictment.
We also wish to point out that the quoted provision (which, as such, is itself inappropriate for modern law) stipulates the keeping of indictments confidential (even vis-à-vis the accused), as well as other documents and information as an exception while, in practice, this is increasingly becoming a rule.
The prosecutor forwards too late to the Defense Counsel the data on the identity of the witnesses and the victims, as well as these witnesses’ allegations, i.e. the claims regarding the victims against the accused, so that the Defense Counsel does not have enough time to collect data and evidence to possibly refute all these allegations and claims. The Tribunal tries to justify this practice by reasons of security of the witnesses and the alleged victims. However, an institution that has at its disposal all the means available to the Tribunal quite certainly will not find it a problem to simultaneously provide security to witnesses and alleged victims and give the accused and his Defense Counsels enough time to prepare the defense.
An extreme scenario based on this approach is the possibility, permitted under Rule 75 on Procedure and Evidence, to keep the identity of a witness or a victim a total secret until the very end and for the witness to be heard by means of various technical devices (picture or sound distorting devices or closed-circuit television; by giving a witness a pseudonym, etc.). These methods make it impossible to establish a given person’s identity. Such action makes it impossible for the Counsel to prepare the defense and by its nature opens up the possibility for manipulation rather than contributing to protecting a given person. Namely, when a witness is heard on an actual event that has really taken place, the accused can conclude based on the actual contents of the witness hearing which particular person is speaking, so that keeping identity a secret does not make much sense. However, it gives exceptional advantage to false witnesses and victims, who may make statements without any risk to themselves about something that never happened. Namely, their identity is kept a secret and the accused cannot conclude who they are based on the contents of their statement as they testify about something that never happened.
The above mentioned methods are used in particular to violate Article 14 on the International Covenant on Civil and Political Rights that protects the right of the accused in the proceedings and whose paragraph 3, inter alia, stipulates that:
"3. In the determination of any criminal charge against him, everyone 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;
…."
The above mentioned methods also violate the similar provisions of Article 21, paragraph 4, items a) and b) of the Tribunal’s Statute.
8. Disproportionate difference between the terms of work of the Prosecutor’s Office and the Defense
The Prosecutor’s Office has disproportionately more favorable terms of work than the terms and means available to the Defense. Not only is this unfair but also, inter alia, violates the right to defense, particularly in the part concerning the above quoted Article 14, paragraph 3, item b) of the International Covenant on Civil and Political Rights (as well as Article 21, paragraph 4, item b) of the Tribunal’s Statute).
Namely, the Prosecutor’s Office has offices in several towns in the territory of Yugoslavia, has a large number of investigators and an unlimited capacity of access to all cases before the Tribunal. The Defense Counsels do not have any of this, i.e. have it but to a much more moderate extent. Thus, for instance, in some of the cases (particularly those against the highest officials of the Republika Srpska that are on trial - Momcilo Krajisnik and Biljana Plavsic), the problem arose of actual feasibility for the Defense Counsels to read all the documents submitted by the Prosecutor’s Office that have so many pages that the usual group of several Counsels would need several years of full-time work to read only once the contents of the submitted documents.
The costs of litigation before the Tribunal are so high that no accused can afford to pay them. The Tribunal pays Defense Counsels ex officio and the amounts of their fees are exceptionally high, particularly if viewed from the Yugoslav perspective and measured by our yardsticks. However, in real terms, even these amounts are inadequate to meet the overall needs for a quality defense compared to the formidable means and possibilities available to the Prosecutor’s Office. In addition, by employing this method of paying the Attorneys, which is a rule rather than an exception, which would be normal, the Tribunal’s Secretariat keeps the Defense under control and undermines its independence.
9. Violation of the principle "audiatur et altera pars" in some cases
Rule 94 on Procedure and Evidence, paragraph (A) stipulates that: (A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof". This rule, otherwise widely accepted in procedural legislation, becomes problematic before The Hague Tribunal because allegations made by the mass media are often considered as generally accepted facts related to the Yugoslav crisis and have, as a result of frequent repetition, acquired the character of notorious facts. In a situation when the judges, as a rule, do not have enough preliminary knowledge about the overall context of the events underlying the ongoing proceedings, which will be discussed later on, the mentioned procedural possibility poses a big treat to the accused placing him at a great disadvantage.
Paragraph (B) of the same rule prescribes: "(B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings". Notwithstanding the fact that it is obliged to previously hear the parties, meaning to also give the possibility to the accused to plead, the Trial Chamber may take as proved, even if the accused challenges them, the facts established in the course of some other proceedings before the Tribunal since the quoted provision only envisages the obligation to hear the parties but not the obligation to supply proof again if the accused (or possibly the Prosecutor) claims that these facts have not been correctly established. Although the facts already proved in another case are at issue here, perhaps the facts proved in these other proceedings are not important for the accused to the extent that he would challenge the Prosecutor’s allegations thereon; namely, they do not significantly affect the verdict in that case and therefore the accused may not wish to enter into a debate thereon. However, in the case where later on these very same facts are taken as established and proved, they may be of major importance to the accused and the accused will not be given the possibility for presenting new evidence. Given that in different cases the accused are different and that the Prosecutor’s Office is the same in all of them, and given that the Prosecutor’s Office decides when it will issue a particular indictment, it has the possibility to adjust the sequence of indictments submitted, so that the same disputable issue in particular earlier proceedings will appear as an issue of no particular importance to the accused. In some later proceedings, however, the same issue may be of crucial importance to the contents of the verdict and the position of the accused and may make the accused in the later-on initiated proceedings face a situation where he will not be able to challenge the Prosecutor’s allegation that will decide his fate.
In the mentioned way, the anyway inequitable position of the Defense vis-à-vis that Prosecutor is additionally aggravated and the right of the accused to effectively challenge the Prosecutor’s allegations and succeed in having evidence supplied in his favor is seriously undermined. And this right is also stipulated and protected by Article 14 of the International Covenant on Civil and Political Rights (as well as by Article 21 of the Tribunal’s Statute).
10. Inadequate qualification of the Tribunal’s judges to try people due to lack of knowledge of the historic, political and civilization context in which the events of relevance to the trial took place
In the Tribunal’s work so far, the ignorance is in evidence among judges and the officials of the Prosecutor’s Office (Chief Prosecutor, Deputy Prosecutor and other personnel in the Prosecutor’s Office) of the social and historic milieux in which the events under trial took place and in which the protagonists of those events, including the accused, lived and came from. These officials have come from different parts of the world and, as a rule, do not even speak the languages spoken in the former SFRY. Their knowledge of the history, political situation, customs, habits, and other civilization features of the region, is more than inadequate and often based almost exclusively on the knowledge gained through the media. To illustrate this by an example, at the trial of the Celebici case, when one of the judges asked who the Ustashi mentioned in the proceedings were, the Prosecutor did not know how to answer.
This situation leads to the judges, whose half-knowledge and ignorance are otherwise based on information gained through the media, falling prey in the course of proceedings to further manipulations and accepting claims also based on media and other propaganda campaigns. All this leads to the accumulation of untruths and half-truths that are increasingly difficult to challenge. Even the Prosecutor’s Office’s stands are sometimes drastically unfavorable for the accused not out of malice but due to inadequate knowledge or a distorted perception of particular issues that people at the Prosecutor’s Office have.
Having in mind the perception of the Yugoslav crisis world-wide, its causes, historical background and development, this state of affairs clearly produces negative effects primarily and to the largest extent against the accused on the Serb side.
11. Disrespect of the assumption of innocence/ establishment of the assumption of guilt
We have seen that The Hague Tribunal has been defined as the organ for "the prosecution of persons responsible" (i.e. according to the French version "persons presumed responsible") and that its set-up, where the institutional inseparability of the court Chambers and the Prosecutor’s Office prejudices the the necessary impartiality of trials required by modern law, and particularly respect for the presumption of innocence stipulated in Article 14, paragraph 2, of the International Covenant on Civil and Political Rights, which reads: "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law." (the presumption of innocence is even stipulated in Article 21, paragraph 3, of the Tribunal’s Statute, although the Tribunal has been defined, set up and is functioning in contravention of that presumption).
Disrespect for the presumption of innocence/ establishment of the presumption of guilt has in practice been particularly pronounced through the presentation of the indictments of the general context in which the events on trial took place and particularly in the indictments against high-ranking military or political leaders. These presentations of the general context often make up quite a large part of the total text of the indictments. Through this general context, a political situation is described where whole peoples are charged with particular behaviors, with the "political guilt" of the Serb people coming to full expression (hegemonic aspirations, terror against minorities, ethnic cleansing, aspirations towards creating a Greater Serbia, etc). This, by the way, contravenes the principle of individual responsibility that has been generally accepted in modern criminal law. It also contravenes the raison d’etre of any criminal court, including The Hague Tribunal, that was, as is often mentioned in the debates in its favor, established precisely in order to remove collective responsibility from a people for the crimes committed by individuals. Based on the established claims within a general context, individual responsibility is then derived. Namely, the thus established general context further allows the Prosecutor - at least according to his own view of things and as can be unequivocally concluded from his behavior - to provide very scant information on what specifically the defendants did, when, where and against whom they committed the crimes they are charged with, etc. As a result, the accused face a situation where they have to defend themselves both against the general context allegations and against inaccurate concrete allegations, in fact to defend themselves against whatever one can conclude based on such indictments that the Prosecutor has charged them with.
The broadly defined and perceived concept of so-called "command responsibility" also contributes to undermining the assumption of innocence and the request for individual and subjective responsibility. Here, the relationship between the accused and the event for which he is on trial can be so distant and indirect that neither according to his formal powers nor according to his real influence he could have contributed to either the direct commission of the given crime or could have prevented it in any way, nor could he even have learned about it. A typical example is the case of Momcilo Krajisnik who, as President of the Assembly of Republika Srpska, could not have either formally or factually influenced the events and crimes that he is blamed for.
In a situation when an individual’s responsibility is largely based on a broad political and even historic context and in a situation when neither the judges nor the employees of the Prosecutor’s Office have any sufficient knowledge about that context, as already mentioned, it is hardly possible to establish facts correctly and apply law in an appropriate manner. There are even certain absurd situations, as in the Tadic case, for instance, when the Prosecutor arguing in favor of the claim on the continued tendency among Serbs towards the "ethnic cleansing" of other peoples also proposed a study of a certain "expert witness" whose identity had been kept confidential (expert witness P) and proved the mentioned tendency by referring to a paper by historian Vasa Cubrilovic presented on 7 March 1937 to the Serbian Cultural Club. Cubrilovic was in favor of Yugoslavia concluding a treaty on the exchange of population with Turkey and possibly with Albania, just as already done by other Balkan countries following the Balkan wars, and the practice commonplace at the time, which only we had not resorted to. Cubrilovic presented the mentioned proposal in a private capacity, as a scholar, and, as is well known, this proposal was never accepted by the authorities.
In determining the above mentioned general political-historical-legal context, it is noteworthy that there is a discrepancy between the claims made by the Prosecutor’s Office and the contents of the decisions made by the Tribunal and presentations by some of the judges, who are incidentally eminent legal experts, in their research papers. Thus there is in the indictments the claim that the former Yugoslav republics decided to ‘leave’ Serb-dominated Yugoslavia. This is regarded as acceptable whereas the political reactions of the Serbian people are treated as criminal acts (the establishment of the municipal communities permitted under the Constitution, or of the representative bodies through which they could articulate their interests, etc.). That Serbian people does not wish to be dominated by other nations in the separated republics and wishes either to preserve the SFRY or to remain even in the truncated Yugoslav state or even to have its own canton in the seceded republic. At the same time, one of the most eminent judges of the Tribunal and its former President Professor Antonio Cassese in his book Self-Determination of Peoples, A Legal Re-Appraisal (Cambridge, Cambridge University Press, 1995) noted that secession (external self-determination) by the former Yugoslav republics contravened both international law and the Yugoslav constitutional system. This drastic difference in the assessment of events is of crucial importance when determining the above mentioned context because in the given example the reactions of the Serb people represented the defense of their own rights against the unconstitutional secession that was contrary to international law. The claims by the Prosecutor and the statements by the Tribunal were contrary to certain generally known facts – thus it is generally known world wide that in Yugoslavia which according to claims was dominated by the Serbs from 1945 to 1980 virtually absolute power was wielded by Josip Broz Tito who was half-Croat and half-Slovene as well as that after that there was a practically con-federal system in place that did not allow the predominance of any of the republics (those better versed and the Prosecutor’s Office and the Tribunal should be among them, know that the percentage of Serbs in the SFRY was lower than the percentage of Muslims in Bosnia-Herzegovina, that in the period from the Second World War up to the outbreak of the war in the early 1990s only one Serb served as Federal Prime Minister, notably Petar Stambolic in the 1960s, that in the JNA the command over the most important sectors like air force, air defenses, the Navy, etc. was almost as a rule given to Croats and Slovenes and that the percentage of Serbs in the JNA command staff was lower than the percentage of the Serbs in the total population, etc.).
12. Violations of human rights protected by International Law during the arrest and the transfer of the accused to the Tribunal
The Rule 58 of Procedure and Evidence of the Tribunal stipulates: "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."
We shall not at the moment tackle in detail the question whether an act of a hierarchically inferior legal power, which is supposed to deal only with the procedure and evidence before the Tribunal (since the legislative competence conferred to the judges by the Statute of the Tribunal is limited to those questions only), can determine the relations between a superior act and some other acts of a different nature. But we could observe that the above quoted article does not include the obligation of respect of the human rights guaranteed by the International law during the arrest and the transfer of the accused to the Tribunal (this obligation cannot in any way be derogated since those rights belong to the jus cogens).
In many cases the accused were arrested, either by the state authorities or by some informal groups, outside the procedures prescribed by national laws and they were transferred to the Tribunal also without applications of such procedures. Those accused were also deprived of the right to the protection by a court. This was the case for example with Mr. Milomir Stakic, Mr. Momir Talic, Mr. Dragan Nikolic, Mr. Slobodan Milosevic, Mr. Steve Todorovic, Mr. Momcilo Krajisnik, the twins Mr. Miroslav and Milan Vuckovic etc.
The above mentioned conducts are contrary in the first place to the provisions of the Article 9 paragraphs 1 and 4 of the International Covenant on Civil and Political Rights which reads as follows:
"Article 9
1. Everyone has the right to the liberty and the security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
. . .
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
The above mentioned conducts are also in contravention of similar provisions of other international documents as well as of general principles of criminal procedure as recognized by civilized nations.
Since the persons in question were arrested and transferred to the Tribunal in an unlawful way, they are entitled to a restitutio in integrum.
13. Breach of the provisions of the Tribunal’s Statute and the Rules of Procedure and Evidence in atypical conditions of trying Slobodan Milosevic
Finally, in the case against Slobodan Milosevic that is taking place in an atypical manner, as a result of his refusal to recognize the Tribunal, when the accused appeared before the Tribunal for the first time, the indictment should have been read out to him in accordance with Article 20 of the Statute and Rule 62 of Procedure and Evidence. This was not done because the Tribunal interpreted the accused ’s reply to the question of whether he wished to be read out the indictment that was: "That is your problem" as the accused ’s refusal to have it read out to him. The Tribunal was under the obligation to read out the indictment nevertheless in accordance with the mentioned Articles and the defendant’s reply, which was neither negative nor positive but boiled down to a refusal to give a reply, should by no means have been interpreted as negative and, contrary to the defendant’s interest, make the Tribunal decide not to read it out because this was a question relating to the defendant’s procedural right where the interpretations must always go in the direction which favors the accused more.
Given the mentioned omission it can be considered that the proceedings against Slobodan Milosevic was not initiated in a legally proper manner.
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Bearing in mind all of the above examples and our wish to contribute to all the trials before the Tribunal taking place in accordance with international law and that human rights and fundamental freedoms of the accused be respected and that the perpetrators of violations of international humanitarian law are tried and judged in a legally proper manner based on facts, we propose that the relevant Trial Chambers should approve to us, the members of the following group, to appear, each of us as a representative of the whole group, before them and present the stands on issues regarding respect for international law in the given proceedings:
Professor
Kosta Cavoski,L.L.D.
Professor Zagorka Jekic,L.L.D.
Professor Ljubisa Lazarevic
Professor Ratko Markovic,L.L.D.
Professor Zoran Stojanovic,L.L.D.
Professor Djordje Lazin,L.L.D.
Professor Mirjana Stefanovski,L.L.D.
Assistant Professor Aleksandar Jaksic,L.L.D.
Assistant Professor Milan Skulic,L.L.D.
Assistant Professor Branko M.Rakic,L.L.D.
Assistant Professor Sasa Bovan,L.L.D.
Assistant Aleksandar Gajic
Assistant Bojan Milisavljevic
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