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New Mechanisms for the Enforcement of International Humanitarian Law

Published online by Cambridge University Press:  27 February 2017

Daryl A. Mundis
Daryl A. Mundis*
Affiliation:
Office of the Prosecutor, ICTY
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Extract

The international criminal court (ICC) will serve as a permanent institution dedicated to the enforcement of international humanitarian law sixty days after the sixtieth state has deposited its instrument of ratification, acceptance, approval, or accession to the Treaty of Rome with the Secretary-General of the United Nations.1 Pursuant to Article 11 of the ICC Statute, however, the ICC will have jurisdiction only with respect to crimes committed after the treaty comes into force.2 Consequently, when faced with allegations of violations of international humanitarian law in the period prior to the establishment of the ICC, the international community has five options if criminal prosecutions are desired.3 First, additional ad hoc international tribunals, similar to those established for the former Yugoslavia (International Criminal Tribunal for the Former Yugoslavia, ICTY) and Rwanda (International Criminal Tribunal for Rwanda, ICTR) could be established.4 Second, "mixed" international criminal tribunals, which would share certain attributes with the ad hoc Tribunals, could be created.5 Third, the international community could leave the prosecution of alleged offenders to national authorities, provided that the domestic courts are functioning and able to conduct such trials. Fourth, in those instances where the national infrastructure has collapsed, international resources could be made available to assist with the prosecution of the alleged offenders in domestic courts. Finally, the international community could simply do nothing in the face of alleged violations of international humanitarian law.

Type
Current Developments
Information
American Journal of International Law , Volume 95 , Issue 4 , October 2001 , pp. 934 - 952
Copyright
Copyright © American Society of International Law 2001

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References

1 Rome Statute of the International Criminal Court, July 17, 1998, Art. 126, UN Doc. A/CONF.183/9*, corrected mUNDoc.PCNICC/1999/INF/3*, reprinted in 37 ILM 999 (1998) (uncorrected version) [hereinafter ICC Statute]. As of November 6, 2001, forty-three states had ratified the ICC Statute. This and other documentation on the ICC is available online at <http://www.un.org/law/icc/index.html>.

2 ICC Statute, supranote 1, Art. 11(1).

3 Of course, these options will remain open to the international community after the establishment of the ICC as well. For example, nothing in the ICC Statute prohibits the Security Council from establishing additional ad hoc tribunals, and it is not inconceivable that the international community may opt in the future to assist states desirous of bringing individuals tojustice for serious violations of international humanitarian law committed prior to the establishment of the ICC.

4 Collectively, hereinafter the ICTY and ICTR will be referred to as “the ad hoc Tribunals.”

5 A “mixed” international criminal tribunal is similar to the ICTY and ICTR in that the international community is involved in its creation, but differs from them in consisting of both international and national judges, prosecutors, and staff. Moreover, as will be described, “mixed” tribunals are not created by the Security Council but, rather, result from negotiations between the United Nations and the state concerned.

6 UN Doc. S/2001/634, annex, at 4, para. 5; see also id., para. 3 (“The Democratic Republic of Congo confirms its determination to cooperate with the international community in seeking out and identifying the perpetrators of the genocide in order to bring them before an international criminal tribunal” (emphasis omitted)). As of November 6, 2001, the Democratic Republic of Congo had not made such a formal request.

7 President Guillaume of the International Court of Justice (and his predecessor, President Schwebel) raised the potential problems of the proliferation of international courts and tribunals in general on several occasions. See, e.g., UN Doc. A/C.6/55/SR. 17 (2000). Although some of the concerns raised by the ICJ presidents, such as forum shopping, do not affect the mechanisms for enforcing international criminal law since these courts and tribunals are necessarily geographically limited, the fact that these institutions will have similar subject matter jurisdiction raises certain potential problems.

8 This Note concludes with a brief discussion of recent developments affecting the ICTYand the ICTR. For the Statutes, see Statute 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, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statute]; Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994, SC Res. 955, annex (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994) [hereinafter ICTR Statute].

9 Letter Dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations Addressed to the President of the Security Council, UN Doc. S/2000/786 (2000). Attached to this letter was an annex containing the letter of the president of Sierra Leone and an enclosure entitled, “Framework for the special court for Sierra Leone.” On the special court, see also Abdul, Tejan-Cole, The Special Court for Sierra Leone: Conceptual Concerns and Alternatives, 1 Afr. Hum. Rts. L.J. 107 (2001)Google Scholar; Robert, Cryer, A ‘Special Court’for Sierra Leone, 50 Int’l & Comp. L.Q. 435 (2001)Google Scholar.

10 SC Res. 1315 (Aug. 14, 2000), 40 ILM 247 (2001).

11 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/ 915, at <http://www.un.org/Docs/sc/reports/2000/915e.pdf> [hereinafter Secretary-General’s Sierra Leone Report]. The annex contains the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone [hereinafter Sierra Leone Special Court Agreement] and the enclosure contains the draft Statute for the Special Court for Sierra Leone [hereinafter Sierra Leone Statute]. The NGO No Peace Without Justice has established a special Web site concerning the Sierra Leone Special Court that includes a consolidated version of the Sierra Leone Statute and the Sierra Leone Special Court Agreement, <http://www.specialcourt.org>.

12 Annex to the Letter Dated 22 December 2000 from the President of the Security Council Addressed to the Secretary-General, UN Doc. S/2000/1234 [hereinafter Sierra Leone Statute Amendment]. The Secretary-General set forth his understanding of the Sierra Leone Statute Amendment in a letter dated January 12, 2001, UN Doc. S/2001/40, which prompted a further response from the Security Council on January 31, 2001, in which the Council agreed in part and disagreed in part, with the Secretary-General’s positions, UN Doc. S/2001/95. These documents and other letters dated 2000 and 2001 are available online at <http://www.un.org/Docs/sc/letters/2000/> and <http://www.un.org/Docs/sc/letters/2001/>, respectively.

13 This agreement was communicated to the Secretary-General in a letter dated February 9, 2001. See Letter Dated 13 July 2001 from the Secretary-General to the President of the Security Council, UN Doc. S/2001/693.

14 Secretary-General’s Sierra Leone Report, supra note 11, para. 9.

15 Sierra Leone Statute, supra note 11, Art. 8. Tejan-Cole, supra note 9, at 113–14, argues that this provision may be problematic under the Constitution of Sierra Leone.

16 Sierra Leone Statute Amendment, supra note 12, Art. 1 (1) (a).

17 Sierra Leone Statute, supra note 11, Art. 1. After noting that the civil war in Sierra Leone commenced on March 23, 1991, the Secretary–General acknowledged that “[i]mposing a temporaljurisdiction on the Special Court reaching back to 1991 would create a heavy burden for the prosecution and the Court.” Secretary-General’s Sierra Leone Report, supra note 11, para. 26. Several dates were considered before finally opting for November 30, 1996, the date on which the Abidjan Peace Agreement was concluded. Id., paras. 21–28.

18 Secretary-General’s Sierra Leone Report, supra note 11, para. 30.

19 See Letter Dated 22 December 2000 from the President of the Security Council Addressed to the Secretary-General, UN Doc. S/2000/1234, para. 1.

20 See UN Council Curtails Youth Trials in Sierra Leone, N.Y. Times (Web site), Dec. 27, 2000.

21 Sierra Leone Statute, supranote 11, Art. 2.

22 Id., Art. 3.

23 Id., Art. 4. Three offenses are set forth as being punishable under this article:

  • (a)

    (a) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

  • (b)

    (b) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

  • (c)

    (c) Abduction and forced recruitment of children under the age of 15 years into armed forces or groups for the purpose of using them to participate actively in hostilities.

24 Id., Art. 5. Pursuant to this provision, the Special Court has jurisdiction over “(a) Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31)” and “(b) Offences relating to the wanton destruction of property under the Malicious Damage Act, 1861.”

25 With respect to crimes against humanity, compare Sierra Leone Statute, supra note 11, Art. 2, with ICTY Statute, supra note 8, Art. 5, ICTR Statute, supra note 8, Art. 3, & ICC Statute, supra note 1, Art. 7. Concerning common Article 3 offenses, compare Sierra Leone Statute, supra, Art. 3, with ICTY Statute, supra, Art. 3, as interpreted by the appeals chamber in Prosecutor v. Tadic, Appeal on Jurisdiction, No. IT–94–1–AR72, para. 94 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996), ICTR Statute, supra, Art. 4, & ICC Statute, supra, Art. 8 (2) (c). Concerning the three enunciated offenses under Sierra Leone Statute, supra, Art. 4, compare ICC Statute, supra, Art. 8(2)(b)(i) (“intentionally directing attacks against the civilian population”), ICC Statute, supra, Art. 8(2) (b) (iii) (attacks against humanitarian workers), & ICC Statute, supra, Art. 8 (2) (b) (xxvi) (making it unlawful to conscript or enlist children under the age of fifteen years or to use them to participate actively in hostilities).

26 Peace Agreement, July 7, 1999, Sierra Leone-Revolutionary United Front of Sierra Leone, reprinted in Letter Dated 12 July 1999 from the Charge d’Affaires ad interim of the Permanent Mission of Togo Addressed to the President of the Security Council, UN Doc. S/1999/777, annex.

27 Secretary-General’s Sierra Leone Report, supra note 11, paras. 21–24.

28 Id., paras. 32–38.

29 Sierra Leone Statute, supra note 11, Art. 7(3) (b).

30 Id., Article 7(3) (f) provided: “In the disposition of his or her case, order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies.”

31 For example, Human Rights Watch opposed trying offenders who were younger than eighteen at the time the offense was committed. See HRW Press Release, Sierra Leone: Justice and the Special Court (Nov. 1, 2000), at <http://www.hrw.org/press/2000/ll/sl-pr-1101.htm>. The Security Council also amended the Sierra Leone Statute, supra note 11, Art. 4 (c) to make it illegal to conscript or enlist children under fifteen years of age into armed forces or to use them to “participate actively in hostilities.” Both Human Rights Watch and Amnesty International had urged the Security Council to make this amendment. HRW Press Release, supra; Sierra Leone: The Statute of the Special Court Must Make All Recruitment of Children Under 15 A Crime (AI Index AFR 51/081/2000, Oct. 20, 2000), at <http://web.amnesty.org/ai.nsf/Index>.

32 Article 7 of the Sierra Leone Statute Amendment, supra note 12, provides:

Should any person who was at the time of the alleged commission of the crime below 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.

33 This provision reads: “In the prosecution of juvenile offenders, the Prosecutor shall ensure that the childrehabilitation programme is not placed at risk and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability.”

34 Pursuant to this article, juvenile offenders may not be sentenced to prison terms upon conviction.

35 Sierra Leone Statute Amendment, supra note 12, Art. 11 (a) states that the Special Court may have “one or more Trial Chambers.” The Secretary-General had proposed that the Special Court consist of two trial chambers. Sierra Leone Statute, supra note 11, Art. 11.

36 Sierra Leone Statute, supra note 11, Art. 12(1). Sierra Leone Special Court Agreement, supra note 11, Art. 2(3) provides that the government of Sierra Leone and the Secretary-General shall consult on the appointment of the judges.

37 This raises the possibility that no Sierra Leonean national will sit as a judge. See Tejan-Cole, supranote 9, at 119.

38 Sierra Leone Statute, supra note 11, Art. 12(1); see also Sierra Leone Special Court Agreement, supra note 11, Art. 2 (a), (b) (providing that the Secretary-General shall appoint the judges “upon nominations forwarded by States, and in particular the member States of the Economic Community of West African States and the Commonwealth, at the invitation of the Secretary-General”).

39 See José, E. Alvarez, Crimes of State/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int’l L. 365, 370 (1999)Google Scholar.

40 Sierra Leone Statute, supra note 11, Art. 17.

41 Id., Art. 14(1).

42 Id., Art. 14(2).

43 Id., Art. 19(1).

44 Id., Article 19 (3) provides that forfeited property, proceeds, or assets are to be returned to their rightful owner or the Sierra Leone government.

45 Id., Art. 19(1).

46 The Secretary-General launched an appeal for funding on March 23, 2001. See Letter Dated 13July 2001, supra note 13.

47 Id.

48 Sierra Leone Special Court Agreement, supra note 11, Art. 20.

49 For a discussion of the potential conflicts between the Sierra Leone Special Court and Sierra Leone domestic law, see Tejan–Cole, supranote 9, at 113–14.

50 .See Identical Letters Dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN Doc. A/53/850–S/1999/231; Steven, R. Ratner, The United Nations Group of Experts for Cambodia, 93 AJIL. 948, (1999)Google Scholar.

51 See Ratner, supra note 50; David, Stoelting, Enforcement of International Criminal Law, 34 Int’l Law. 669, 669–70 (2000)Google Scholar.

52 UN Doc. E/CN.4/2001/102, paras. 4–6; see also UN Press Release SG/SM/7481, United Nations Legal Counsel Completes Discussions with Cambodian Government on the Establishment of Tribunal to Try Khmer Rouge Officials (July 6, 2000). UN press releases are available online at <http://www.un.org/documents>. For ease of reference, the “Extraordinary Chambers” will be referred to herein as “the Khmer Rouge Tribunal.” The draft MOU and draft statute were never officially released. However, these documents were leaked to the press in October 2000 and published in the Phnom Penh Post, No. 22, Oct. 27–Nov. 9, 2000. The draft Khmer Rouge statute is available online at <http://www.derechos.org/human-rights/seasia/doc/krlaw.html>. The leaked version of the statute shall be referred to as “Draft Khmer Rouge Statute, ” and the leaked version of the MOU as the “Draft MOU.”

53 UN Doc. E/CN.4/2001/102, para. 5.

54 Id. Moreover, the United Nations apparently asked Cambodia to make changes in seventeen of the forty-eight articles of the Draft Khmer Rouge Statute as it worked its way through the Cambodian legislative process, but most of these proposed changes were ignored. See Seth, Mydans, As Cambodia Prepares to Try Khmer Rouge Leaders for Massacres, They Deny Guilt, N.Y. Times, Aug. 21, 2001, at A9 Google Scholar; see also Cambodia Ignored UN Request in Passing Tribunal Law, AP, Jan. 19, 2001.

55 Chris, Decherd, Cambodia’s King Signs Law Paving the Way for Tribunal to Put Khmer Rouge on Trial, AP, Aug. 10, 2001 Google Scholar, at WL All News Plus; see Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea [hereinafter Khmer Rouge Statute] (on file with author).

56 The major problems with the Cambodian law as adopted include changes in the definition of genocide and issues concerning the right to counsel for suspects and accused, the applicable procedural rules, amnesty and pardons, and appointment of key personnel. See infra text following note 72 through text at note 78. The author is grateful to Craig Etcheson for pointing out the variations between the Draft Khmer Rouge Statute and the Khmer Rouge Statute and for his comments in this regard.

57 See UN Press Release SG/SM/7911, UN Looks Forward to Receiving New Cambodian Law on Khmer Rouge Trials, Secretary-General’s Spokesman States (Aug. 10, 2001) (stating that the “legislation will be reviewed to determine that it conforms to a draft memorandum of understanding governing [UN] participation with Cambodia in a trial”); see also UN Press Release SG/SM/7868, Secretary-General Clarifies Position on Cambodian Government Responsibility for Trials of Former Khmer Rouge Leaders (June 27, 2001) (“[T]his legislation has to be in conformity with a Memorandum of Understanding to be signed between the United Nations and the Government of Cambodia.”).

58 Cambodian Prime Minister Hun Sen is on record as stating that the United Nations must alter its position regarding the MOU and not vice versa. “Those people who have said that the Cambodian law must comply with the MOU are wrong. The truth is that the MOU between the government and the U.N. must comply with the Cambodian law.” Chris, Decherd, KhmerRouge Trial Law Not Negotiable, Hun Sen Tells U.N., AP, Aug. 14, 2001 Google Scholar, at WL AllNewsPlus.

59 Khmer Rouge Statute, supra note 55, Art. 2.

60 Consisting of three Cambodian judges and two international judges. Id., Art. 9; Draft MOU, supra note 52, Art. 2.

61 Consisting of four Cambodian judges and three international judges. Khmer Rouge Statute, supra note 55, Art. 9.

62 Consisting of five Cambodian judges and four international judges. Id. 63 There will be one Cambodian investigating judge and one international invesugating judge. Id., Art. 23; Draft MOU, supra note 52, Art. 4. Similarly, one co-prosecutor will be Cambodian, the other a foreign national. Khmer Rouge Statute, supra note 55, Art. 16; Draft MOU, supra, Art. 5. If either the co-investigating judges or the co-prosecutors disagree, a detailed scheme for resolving such differences is envisioned. Khmer Rouge Statute, supra, Arts. 20, 23; Draft MOU, supra, Art. 6.

64 Khmer Rouge Statute, supra note 55, Art. 4.

65 Id., Art. 3.

66 Id., Art. 5.

67 Id., Art. 6.

68 Id., Art. 7. For the Convention, May 14, 1954, see 249 UNTS 240.

69 Id., Art. 8. For the Convention, Dec. 14, 1973, see 28 UST 1975, 1035 UNTS 167.

70 Khmer Rouge Statute, supra note 55, Art. 43.

71 Id., Art. 45.

72 Id., Art. 44( 1), (3). In addition, the United Nations Trust Fund will cover the cost of the “expenses of the foreign administrative officials and staff, ” including the foreignjudges, co-investigating judge, and co-prosecutor. Id., Art. 44(2). Additional financial assistance may be accepted from foreign governments, international institutions, nongovernmental organizations, and individuals. Id., Art. 44(5).

73 Article 4 of the Khmer Rouge Statute states (in part):

Acts of genocide, which have no statute of limitations, mean any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group such as:

  • —

    — killing members of the group;

  • —

    — causing serious bodily or mental harm to members of the group;

  • —

    — deliberately inflicting on the group conditions of life organised in order to physically destroy in whole or in part;

  • —

    — imposing measures intended to prevent births;

  • —

    — forcibly transferring children from one group to another group.

Id., Art. 4 (emphasis added). The correct statement of the law of genocide transposes the italicized words, resulting in a completely different meaning.

74 Compare Draft Khmer Rouge Statute, supranote 52, Art. 24 (“suspects shall be entitled to assistance of counsel of their own choice”), with Khmer Rouge Statute, supra note 55, Art. 24 (which deletes the italicized phrase). In addition, reading Article 35 of the Khmer Rouge Statute, which echoes the language of Article 9 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR], in conjunction with Article 42(3) of the Khmer Rouge Statute, which provides for wide-ranging immunity for defense counsel, leads to the inescapable conclusion that when it assisted with drawing up the text of the Draft Khmer Rouge Statute, the United Nations did not anticipate that foreign defense counsel would be barred from appearing on behalf of the accused.

75 Compare Draft Khmer Rouge Statute, supra note 52, Art. 40, with Khmer Rouge Statute, supra note 55, Art. 40. Moreover, the language in this article stating that the Cambodian government “cannot request an amnesty or pardon for any person who may be investigated for or convicted of crimes” within the jurisdiction of the Khmer Rouge Tribunal is of little value since under Cambodian law, the king may grant a royal amnesty without a request by the government.

76 Draft Khmer Rouge Statute, supra note 52, Art. 31. This post is significant because the deputy director of administration is authorized to recruit and administer the international staff and oversees the UN Trust Fund for the Khmer Rouge Tribunal. Id.

77 Khmer Rouge Statute, supra note 55, Art. 31.

78 Compare the Draft Khmer Rouge Statute, supra note 52, and the Khmer Rouge Statute, supra note 55, with respect to the following: Articles 12, 21, 27, and 46. These articles make provision for the appointment of internationaljudges, international investigating judges, and the international co-prosecutor in the event of any “absence.” As set forth in the Draft Khmer Rouge Statute, the replacements were to be selected from a list of nominees submitted by the Secretary-General. In the Khmer Rouge Statute, the provision on the Secretary-General’s role in preparing a list of nominees was deleted.

79 Decherd, supra note 58.

80 Namely, Ta Mok, a former military leader, and Kaing Khek Iev, who is alleged to have been the director of a torture center in Phnom Penh. Several other former Khmer Rouge officials, including Nuon Chea, the regime’s second in command and chief ideologue; Ieng Sary, the former foreign minister; and Khieu Samphan, the former head of state, are living openly in Cambodia. Decherd, supra note 55; see oho Mydans, supra note 54.

81 Deployment of a Multinational Force to East Timor, Sean, D. Murphy, Contemporary Practice of the United States, 94 AJIL 105 (2000)Google Scholar.

82 SC Res. 1272 (Oct. 25, 1999), 39 ILM 240 (2000).

83 Regarding the complete destruction of the justice system in East Timor by the retreating Indonesian forces, and the degree to which the United Nations had to rebuild that system, see Hansjörg Strohmeyer, Collapse and lieconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AJIL 46, 50–51 (2001).

84 SC Res. 1272, supra note 82, op. para. 1.

85 See, e.g., UNTAET Regulation 1999/1, On the Authority of the Transitional Administration in East Timor (Nov. 27, 1999); UNTAET Regulation 1999/3, On the Establishment of a Transitional Judicial Service Commission (Dec. 3, 1999), as amended by UNTAET Regulation 2000/25 (Aug. 3, 2000); UNTAET Regulation 2000/11, On the Organization of Courts in East Timor (Mar. 6, 2000), as amended by UNTAET Regulation 2000/14 (May 10, 2000); UNTAET Regulation 2000/15, On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (June 6, 2000); UNTAET Regulation 2000/16, On the Organization of the Public Prosecution Service in East Timor (June 6, 2000). All the regulations promulgated by UNTAET are available online at <http://www.un.org/peace/etimor/untaetR/UntaetR.htm>.

86 UNTAET Regulation 2000/14, supra note 85, §2. Originally, UNTAET regulations provided for eight district courts. See UNTAET Regulation 2000/11, supra note 85, §§4, 7 (designating the location of each of the original district courts, including their territorialjurisdiction).

87 UNTAET Regulation 2000/11, supra note 85, §4.

88 UNTAET Regulation 1999/3, supra note 85, Arts. 1–2.

89 Namely, genocide, war crimes, crimes against humanity, murder, sexual offenses, and torture.

90 UNTAET Regulation 2000/11, supra note 85, §10.1.

91 Id. §7.3.

92 See id. §10.1; UNTAET Regulation 2000/15, supra note 85. Interestingly, section 10.4 of UNTAET Regulation 2000/11, promulgated on March 6, 2000, provides that the establishment of these special panels with exclusive jurisdiction over serious criminal offenses “shall not preclude thejurisdiction of an international tribunal for East Timor over these offences, once such a tribunal is established.” UNTAET Regulation 2000/15, which deals with the special panels and serious offenses in great detail and was promulgated on June 6, 2000, makes no mention whatsoever of an international tribunal for East Timor.

93 Section 9.2 of UNTAET Regulation 2000/11 provides that trials shall be held by a panel of threejudges, although in certain instances, cases may be heard by a single judge. See UNTAET Regulation 2000/11, supra note 85, §11; UNTAET Regulation 2000/14, supra note 85, §3.

94 UNTAET Regulation 2000/15, supra note 85, §22.1; see also UNTAET Regulation 2000/11, supranote 85, §§9, 10.3. As with the East Timorese judges, the internationaljudges must be vetted through the Transitional Judicial Service Commission. UNTAET Regulation 2000/11, supra, §10.3.

95 UNTAET Regulation 2000/15, supra note 85, §22.2.

96 UNTAET Regulation 2000/16, supra note 85, §6.1. The international prosecutors, like their East Timorese counterparts, must also be screened by the Transitional Judicial Service Commission. Id.

97 UNTAET Regulation 2000/15, supra note 85, §2.1. Section 2.2 of the same regulation defines “universal jurisdiction” as meaning that (a) the offense was committed within the territory of East Timor; (b) the offense was committed by an East Timorese citizen; or (c) the victim of the crime was an East Timorese citizen.

98 The offense must have been committed between January 1, 1999, and October 25, 1999. Id. §2.3.

99 The special panels have jurisdiction throughout the territory of East Timor. Id. §2.5.

100 See UNTAET Regulation 1999/1, supra note 85, §§2, 3; UNTAET Regulation 2000/15, supra note 85, §3.1 (a).

101 UNTAET Regulation 2000/15, supra note 85, §3.1(b).

102 Id. §11.

103 Id. §12.

104 Id. §13.

105 Id. §17.

106 Id. §14.3 (a).

107 Id. §14.3 (b).

108 Id. §14.3 (c).

109 Id. §14.3 (f).

110 Id. §14.3 (d).

111 Id. §14.3 (e).

112 Id. §15.

113 Compare id. §18, with ICC Statute, supra note 1, Art. 30; UNTAET Regulation 2000/15, supra note 85, §19, with ICC Statute, supra, Art. 31; UNTAET Regulation 2000/15, supra, §20, with ICC Statute, supra, Art. 32.

114 UNTAET Regulation 2000/15, supra note 85, §24.1. Compare id. with ICC Statute, supra note 1, Art. 68, 1CTY Statute, supra note 8, Art. 22, and ICTR Statute, supra note 8, Art. 21.

115 Id. §25.

116 Compare id. §4, with ICC Statute, supra note 1, Art. 6; UNTAET Regulation 2000/15, supranote 85, §5, withlCC Statute, supra, Art. 7; UNTAET Regulation 2000/15, supra, §6, with ICC Statute, supra, Art. 8. 117 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signatureDec. 10, 1984, 1465 UNTS 85 [hereinafter Torture Convention]. Compare UNTAET Regulation 2000/15, supranote 85, §7.1, with Torture Convention, supra, Art. 1(1); UNTAET Regulation 2000/15, supra, §7.2, with Torture Convention, supra, Art. 1(2); UNTAET Regulation 2000/15, supra, §7.3, with Torture Convention, supra, Art. 2(2).

118 UNTAET Regulation 2000/15, supranote 85, §§8 (murder), 9 (sexual offenses).

119 Id., §10.1 (a).

120 Id. §10.1 (a). Compare id. with ICTYStatute, suprenote 8, Art. 24(1), anrf ICTR Statute, supra note 8, Art. 23(1). In addition, the special panels are to have recourse to the sentencing practice of international tribunals with respect to genocide, crimes against humanity, and war crimes. UNTAET Regulation 2000/15, supra note 85, §10.1 (a).

121 UNTAET Regulation 2000/15, supra note 85, §10.1 (b).

122 Id. §10.1 (c).

123 UNTAET Regulation 1999/1, supra note 85, §3.3.

124 Section 2 of UNTAET Regulation 1999/1 requires all public officeholders to observe certain internationally recognized human rights standards, as reflected in the major human rights treaties, including, inter alia, the Universal DeclarationofHumanRights, GARes.217, Dec. 10, 1948, UNDoc.A/810, at71 (1948) [hereinafterUniversal Declaration]; the ICCPR, supra note 74; and the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICESCR].

125 UNTAET Regulation 1999/1, supra note 85, §3.1.

126 These included, inter alia, the Law on Anti-Subversion, the Law on National Security, the Law on National Protection and Defense, and the Law on Mobilization and Demobilization. Id. §3.2.

127 See the Web site of the Judicial System Monitoring Programme, <http://www.jsmp.minihub.org> [hereinafter JSMP Web site].

128 New Crimes Against Humanity Indictment Filed (Aug. 8, 2001), at JSMP Web site, supra note 127.

129 See Trials, Case 9/2000, at JSMP Web site, supra note 127 (visited Dec. 18, 2001).

130 See Sean, D. Murphy, Contemporary Practice of the United States, 93 AJIL 167 (1999)Google Scholar; id. at 627; id. at 879; id., 94 AJIL 690 (2000). For additional background, see Strohmeyer, supra note 83.

131 SC Res. 1244, para. 5 (June 10, 1999), 38 ILM 1451 (1999).

132 Id., para. 11 (b).

133 Id., para. 11 (i).

134 Id., para. 11 (j).

135 UNMIK Regulation 1999/1, On the Authority of the Interim Administration in Kosovo (July 25, 1999). All the regulations promulgated by UNMIK are available online at <http://www.un.org/peace/kosovo/pages/kosovol.shtml>

136 Strohmeyer, supra note 83, at 48–50.

137 SC Res. 1244, supra note 131, para. 6.

138 See, e.g., UNMIK Regulation 1999/5, On the Establishment of an Ad Hoc Court of Final Appeal and an Ad Hoc Office of the Public Prosecutor (Sept. 4, 1999); UNMIK Regulation 1999/6, On Recommendations for Structure and Administration of the Judiciary and Prosecution Service (Sept. 7, 1999); UNMIK Regulation 2000/15, On the Establishment of the Administrative Department of Justice (June 6, 2000).

139 See Organization for Security and Co-operation in Europe [OSCE], Department of Human Rights and Rule of Law Legal Systems Monitoring Section of UNMIK Pillar III, Review of the Criminal Justice System, February 1, 2000 to July 31, 2000, at 71, at <http://www.osce.org/kosovo/publications/law/crjustice.pdf> [hereinafter LSMS Report]; see also Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/538, para. 60 (2000), at <http://www.un.org/documents>; Advisory Committee on Administrative and Budgetary Questions, Financing of the United Nations Interim Administration Mission in Kosovo, UN Doc. A/55/624, paras. 32–33 (2000).

140 See LSMS Report, supra note 139, at 71–72.

141 Id. at 13.

142 Id. There were seventeen municipal courts and nineteen courts for minor offenses operating in Kosovo.

143 Id.

144 UNMIK Regulation 1999/7, On Appointment and Removal from Office ofjudges and Prosecutors §7 (Sept. 7, 1999). This regulation was subsequently amended and the amended version remains in effect. See UNMIK Regulation 2000/57, Amending UNMIK Regulation No. 1999/7 on Appointment and Removal from Office ofjudges and Prosecutors §7.1 (Oct. 6, 2000) (authorizing the SRS-G to appoint judges and prosecutors). Section 6 sets forth the selection criteria for prosecutors and judges, while sections 7.3 and 7.4 provide the grounds for removal of such officials. With respect to layjudges, see UNMIK Regulation 1999/18, On the Appointment and Removal from Office of Lay-Judges §§4.1, 4.3, 4.4 (Nov. 10, 1999).

145 LSMS Report, supra note 139, at 11.

146 Id. at 11–12. Factors contributing to the collapse of the Emergency Judicial System also included the lack of material resources, inadequate salaries and delay in payments, and the resistance of the Kosovar Albanian legal community to the application of the criminal codes of the FRY and the Socialist Federal Republic of Yugoslavia. Id.

147 See, e.g., UNMIK Regulation 2001/2, Amending UNMIK Regulation No. 2000/6, as Amended, on the Appointment and Removal from Office of Internationaljudges and International Prosecutors (Jan. 12, 2001); UNMIK Regulation 2000/64, On Assignment of International Judges/Prosecutors and/or Change of Venue (Dec. 15, 2000). As of March 13, 2001, twelve internationaljudges and five international prosecutors had been appointed and were performing their respective duties in Kosovo. See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2001/218 (2001), at <http://www.un.org/documents>.

148 UNMIK Regulation 2001/2, supranote 147, §1.1. The qualifications of internationaljudges and international prosecutors are set forth in id. §2, and the grounds for removal of such international persons are set forth in id. §4.

149 Id. §1.2.

150 Id. §1.3.

151 UNMIK Regulation 2000/46, On the Use of Language in Court Proceedings in Which an Internationaljudge or International Prosecutor Participates (Aug. 15, 2000).

152 UNMIK Regulation 2000/64, supranote 147, §1.1. The Kosovar Department of Judicial Affairs may, upon its own motion, make a similar request to the SRS-G. Id. §1.2.

153 Id. §§1.2, 1.3. Such requests for international personnel or change of venue shall be denied in the event that either a trial session or an appellate panel session has commenced. Id. §2.4.

154 Id. §§2.1, 2.3.

155 See UNMIK Regulation 2000/59, Amending UNMIK Regulation No. 1999/24 on the Law Applicable in Kosovo (Oct. 27, 2000); see also UNMIKRegulation 1999/24, On the Law Applicable in Kosovo (Dec. 12, 1999); UNMIKRegulation 1999/1, supra note 135. The promulgation of Regulation 1999/24 was necessary in light of the controversy surrounding section 3 of UNMIK Regulation 1999/1. See Strohmeyer, supranote 83, at 58–59.

156 UNMIK Regulation 2000/59, supra note 155, §1.1 (a).

157 Id. §1.1 (b). On March 23, 1989, Kosovo was stripped of its autonomous federal status under the then-existing Yugoslav Constitution and became a Serb province.

158 Id. §1.1.

159 Id. §1.2. Section 1.3 sets forth eight treaties that reflect these internationally recognized human rights standards. including the Universal Declaration, supra note 124; the European Convention on Human Rights, Nov. 4, 1950, 213 UNTS 221; the ICCPR, supranote 74; the ICESCR, supranote 124; the Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 UNTS 195; the Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 34/180 (Dec. 18, 1979); the Torture Convention, supra note 117 and the International Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3.

160 UNMIK Regulation 2000/59, supra note 155, §2.

161 UNMIK Regulation 1999/26, On the Extension of Periods of Pretrial Detention (Dec. 22, 1999). The OSCE has released a report challenging the legality of this regulation. OSCE Mission in Kosovo, Department of Human Right’ and Rule of Law, Extension of Custody Time Limits and the Rights of Detainees: The Unlawfulness of Regulation 1999/26 (Report No. 6, Apr. 29, 2000), at <http://www.osce.org/kosovo/documents/reports/justice/report6.pdf>.

162 UNMIK Regulation 2000/17, On the Admissibility of Certain Witness Statements in Preliminary Investigations (Mar. 23, 2000).

163 UNMIK Regulation 2001/1, On the Prohibition of Trials in Absentia for Serious Violations of International Humanitarian Law (Jan. 12, 2001). Interestingly, for purposes of defining international humanitarian law with respect to this regulation, reference is made to chapter XVI of the Yugoslav Criminal Code and the ICC Statute. Id. §1.

164 UNMIK Regulation 2000/59, supranote 155, §1.5.

165 Id. §1.6.

166 UNMIK Regulation 2000/4, On the Prohibition Against Inciting to National, Racial, Religious or Ethnic Hatred, Discord or Intolerance (Feb. 1, 2000).

167 Id. §1.1.

168 Id. §1.4.

169 OSCE, Department of Human Rights and Rule of Law Legal Systems Monitoring Section of UNMIK Pillar III, Kosovo: A Review of the Criminal Justice System, September 1, 2000 to February 28, 2001, at 90, Annex 1, at <http://www.osce.org/kosovo/documents/reports/justice/criminal_justice2.pdf>. In addition, since this report was issued, the OSCE has reported that one individual was arrested and charged with complicity to commit genocide; one indi vidual was arrested and charged with war crimes; and the charges against one individual indicted for general endangerment and robbery were amended to include war crimes.

170 For background, see Daryl, A. Mundis, Improving the Operation and Functioning of the International Criminal Tribunals, 94 AJIL. 759, (2000)Google Scholar [hereinafter Mundis, Improving]; see also Daryl, A. Mundis, The Election of ad litem Judges and Other Recent Developments at the International Criminal Tribunals, 14 Leiden J. Int’l L. (forthcoming 2001)Google Scholar (with further details on the information contained in this part).

171 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the FormerYugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/ 634 (1999) [hereinafter Experts’ Report].

172 Report on the Operation of the International Tribunal for the FormerYugoslavia, Submitted by Judge Claude Jorda, President, on Behalf of the Judges of the Tribunal, UN Doc. A/55/382–S/2000/865, Annex I, at <http://www.un.org/ga/55/lista55b.htm#8> [hereinafterJorda Report]; see also Mundis, Improving, supra note 170, at 770–73.

173 Jorda Report, supra note 172, para. 129.

174 SC Res. 1329, Annex I, Art. 13 ter(1) (d) (Nov. 30, 2000). Annex I, attached to Resolution 1329, sets forth the amended articles of the ICTY Statute, and Annex II contains the amended articles of the ICTR Statute. By the same resolution, the title of the currentjudges was changed to “permanent” judge. Id., Annex I, Art. 12(1). Article 13 ter(1) (c) anticipates a minimum of fifty-four candidates for the twenty-seven ad litem positions.

175 ICTY Statute, supra note 8, as amended, Art. 12(1).

176 Id., Art. 13 ter(2), 13 quater (2) (b)(iv).

177 ICTY Weekly Press Briefing (Dec. 6, 2000). ICTY news and decisions are available online at <http://www.un.org/icty> [hereinafter ICTY Web site].

178 UN Press Release GA/9878( June 12, 2001). Although elected for a single four-year term, each ad litem judge may sit for a cumulative period not exceeding three years. ICTY Statute, supra note 8, as amended, Art. 13 ter (1) (e), 13 ter(2).

179 The ad litem judges were assigned to the Simić (“Bosanski Šamac”), Naletilić and Martinović (“Tutaand Stela”), and Vasiljevic cases. ICTY Press Release SB/P.I.S./607-e (July 31, 2001).

180 ICTY Weekly Press Briefing (Apr. 18, 2001).

181 For example, the ad litem judges may not:

  • —

    — adopt the Rules of Procedure and Evidence pursuant to ICTY Statute Article 15. ICTY Statute, supra note 8, as amended, Art. 13 quater (2) (b)(i). This article does provide that the ad fttemjudges shall be consulted prior to the adoption of such rules.

  • —

    — review an indictment pursuant to Article 19 of the Statute. Id., Art. 13 quater (2) (b)(ii).

  • —

    — participate in pretrial proceedings. Id., Art. 13 quater (2) (b) (iv).

  • —

    — consult with the president regarding either the assignment of judges (pursuant to Article 14 of the Statute) or in relation to a pardon or commutation of a sentence (in accordance with Article 28 of the Statute). Id., Art. 13 quarter (2) (b) (iii).

  • —

    — be assigned to the appeals chamber. Id., Art. 14(3).

  • —

    — serve as president of the Tribunal or as a presidingjudge of atrial chamber. Id., Art. 13 quater (2) (a.). They are also ineligible to vote for candidates for either of these positions. Id.; see also ICTY Statute, as amended. Art. 14.

The ICTY judges met in plenary in mid-April 2001 to amend the Rules of Procedure and Evidence to bring them into conformity with these statutory changes and to bestow authority on the chambers’ senior legal officers with respect to pretrial management issues. Several amendments to the rules placed additional limitations on the duties and responsibilities of the ad litem judges.

182 The ICTY Rules are available online at the ICTY Web site, supra note 177. All references that follow are to the ICTY Rules, unless noted otherwise.

183 See, for example, the amendments to Rule 65 ter.

184 See, for example, the amendments to Rule 73 bis, Rule 73 ter, and Rule 92 bis.

185 Twenty-three rules were amended to bring the ICTY Rules into conformity with the statutory limitations on the duties and responsibilities of the ad litem judges and to ensure that their role is limited to trial functions.

186 SC Res. 1329, supra note 174, Annex I, Art. 12(3), & Annex II, Art. 11 (b).

187 Id., Annex I, Art. 14(4), & Annex II, Art. 13(3). This amendment accords with the recommendation of the ICTRjudges and the former presidents of both Tribunals. See Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/850, Annex 1, para. 85 (2000). ICTR judges Mehmet Giiney (Turkey) and Asoka de Zoysa Gunawardana (Sri Lanka) were permanently assigned to the appeals chamber. ICTR Press Release 267 (May 29, 2001), at <http://www.ictr.org>.

188 SC Res. 1329, supra note 174, Annex II; see also UN J., Apr. 25, 2001, UN Doc. Journal 2001/78 (Part I).

189 Report of the Secretary-General Pursuant to Paragraph 6 of Security Council Resolution 1329 (2000), UN Doc. S/2001/154. Pursuant to Article 8 of the ICTY Statute, the Tribunal hasjurisdiction to adjudicate alleged offenses that occurred on the territory of the former Yugoslavia from January 1, 1991, onwards.

190 Letter Dated 12 October 2000 from the President of the International Tribunal for the Former Yugoslavia Addressed to the Secretary-General, UN Doc. S/2000/1063, annex. A report prepared by the ICTY judges on this issue was also attached. This proposal follows a similar proposal advanced by the ICTR judges earlier in 2000.

191 Letter Dated 19 September 2000 from the President of the International Tribunal for the Former Yugoslavia Addressed to the Secretary-General, UN Doc. S/2000/904, annex; Letter Dated 26 September 2000 from the President of the International Criminal Tribunal for Rwanda Addressed to the Secretary-General, UN Doc. S/2000/925, annex. 192 UN Doc. S/PV.4240 (2000).

193 Experts’ Report, supra note 171, paras. 79, 81, 217.

194 office of Internal Oversight Services, Report on the Investigation into Possible Fee-Splitting Arrangements Between Defence Counsel and Indigent Detainees at the International Criminal Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia, UN Doc. A/55/759 (2001). For the specific recommendations, see id., paras. 78–93.

195 Id., Summary. Both ad hoc Tribunals have taken steps to correct these problems. Id., paras. 78–93.

196 UN Press Release GA/9859 (Mar. 14, 2001).

197 See note 7 supra and the source cited therein.