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Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

Published online by Cambridge University Press:  27 February 2017

Sean D. Murphy
Sean D. Murphy*
Affiliation:
George Washington University Law School
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Extract

In May 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY). Over the past five years, the ICTY has shifted from an institution lacking a basic structure, staff and other resources—not to mention indictees in custody—to a fully functioning tribunal pursuing (as of December 1998) twenty-two public indictments against fifty-six indictees; twenty-eight indictees are in custody, awaiting trial or serving a sentence; five have been convicted; one has pleaded guilty; one has been acquitted; several trials are under way; and several more are in pretrial stages. Although its ultimate success is not yet guaranteed, the ICTY is coming of age as a credible forum for the international prosecution of war crimes within its jurisdiction. The following account describes the ICTY’s current status, analyzes its jurisprudence (as seen in its most significant decisions), and briefly assesses its place in the development of international humanitarian law.

Type
Developments in International Criminal Law
Information
American Journal of International Law , Volume 93 , Issue 1 , January 1999 , pp. 57 - 97
Copyright
Copyright © American Society of International Law 1999

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References

1 The principal constituent documents of the ICTY are Security Council Resolution 827, to which is annexed the Statute of the ICTY, SC Res. 827, UN SCOR, 48th Sess., Res. & Dec, at 29, UN Doc. S/INF/49 (1993), reprinted in 32 ILM 1203 (1993) [hereinafter ICTY Statute]; and the ICTY’s Rules of Procedure and Evidence, which have been amended several times, most recendy in July 1998. ICTY Rules of Procedure and Evidence, UN Doc. IT/32/Rev.13 (1998) [hereinafter ICTY Rule n]. Important commentary on the ICTY Statute may be found in the Secretary-General’s report that laid the basis for Resolution 827. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), reprinted in 32 ILM at 1159 [hereinafter Report of the Secretary-General].

A useful source of information on the ICTY is the annual reports transmitted each August from the ICTY President to the Security Council and the General Assembly. See Report 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. A/52/375–S/1997/729 (1997) (fourth annual report); id., UN Doc. A/51/292–S/1996/665 (1996) (third annual report); id., UN Doc. A/50/365–S/1995/728 (1995) (second annual report); id., UN Doc. IT/68 (1994) (first annual report). Further information may be found in the ICTY’s Yearbooks; the Yearbooks covering 1994 and 1995 may be purchased from the United Nations Sales and Marketing Section, Room DC2–853, Dep’t 1004, New York, NY 10017. 1995 ICTY Y.B., UN Sales No. E.96.III.P.1 (1996); 1994 id., UN Sales No. E.95.III.P.2 (1995).

Secondary literature on the establishment and operation of the ICTY is already quite substantial. See, e.g., Symposium, Prosecuting International Crimes: An Inside View, 7 Transnat’l L. & Contemp. Probs. 1 (1997); Symposium, The International Tribunal for Former Yugoslavia Comes of Age, 7 Eur. J. Int’l L. 245 (1996); M. Cherif Bassiouni & Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (1995); Howard S. Levie, The Statute of the International Tribunal for the Former Yugoslavia: A Comparison with the Past and a Look at the Future, 21 Syracuse J. Int’l L. & Com. 1 (1995). A recent, well-written report on the structure, process and resources of the ICTY is U.S. General Accounting Office, Former Yugoslavia: War Crimes Tribunal’s Workload Exceeds Capacity (U.S. Gov’t Doc. GAO/NSIAD-98-134, 1998).

For a variety of information on the ICTY, including the Yearbook covering 1996, a useful resource is the ICTY Web site <http://http://www.un.org/icty>. Many of the decisions referred to in this discussion may be found there under “judicial decisions and orders.” Unfortunately, many decisions are not available through the Web, but they can be obtained from the ICTY Press and Information Office, PO Box 138888, 2501 EW The Hague, Netherlands. The author understands, however, that the ICTY is currently arranging for a publisher in the Netherlands to reprint all ICTY judicial orders and decisions in the near future.

2 Lawyers purporting to represent indictee Radovan Karadžić filed a motion prior to the Rule 61 hearing on his indictments. The motion requested that a lawyer representing Karadžić be permitted to sit in the courtroom during the hearing and to have access to the prosecution’s evidence. The trial chamber denied the motion, stating that an indictee’s attorney would receive such treatment as part of a trial only after the indictee has appeared in The Hague. Prosecutor v. Karadžić and Mladić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Nos. IT-95-5-R61 and IT-95-18-R61, para. 4 (July 11, 1996) [hereinafter Karadžić and Mladić Rule 61 Decision], reprinted in 108 ILR 85 (1998). But see Prosecutor v. Rajić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, No. IT-95-12-R61 (Sept. 13, 1996) [hereinafter Rajić Rule 61 Decision], reprinted in 108 ILR at 141, summarized in Olivia Swaak-Goldman, Case note, 91 AJIL 523 (1997) (Sidhwa, J., sep. op., paras. 10–16) (arguing that the prosecutor’s evidence should be made public, unless under a specific protective order).

On Rule 61 proceedings, see generally Mark Thieroff & Edward A. Amley, Jr., Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61, 23 Yale J. Int’l L. 231 (1998); Anne L. Quintal, Note, Rule 61: The “Voice of the Victims” Screams Out for Justice, 36 Colum. J. Transnat’l L. 723 (1998); Faiza Patel King, Public Disclosure in Rule 61 Proceedings before the International Criminal Tribunal for the Former Yugoslavia, 29 N.Y.U. J. Int’l L. & Pol. 523 (1997).

3 Karadžić & Mladić Rule 61 Decision, supra note 2. For the other reviews of indictments pursuant to ICTY Rule 61, see Rajić Rule 61 Decision, supra note 2; Prosecutor v. Mrkšić, Radić and Šljivančanin, No. IT-95-13-R61 (Apr. 3, 1996) [hereinafter Vukovar Rule 61 Decision], reprinted in 108 ILR 53 (1998), 36 ILM 908 (1997); Prosecutor v. Martić, No. IT-95-11-R61 (Mar. 8, 1996; revised Mar. 13, 1996) [hereinafter Martić Rule 61 Decision], reprinted in 108 ILR at 39; Prosecutor v. Nikolić, No. IT-94-2-R61 (Oct. 20, 1995) [hereinafter Nikolić Rule 61 Decision], reprinted in 108 ILR at 21.

4 For the prosecutor’s most recent statement on her strategy, see Statement by the Prosecutor Following the Withdrawal of the Charges Against 14 Accused, ICTY Doc. CC/PIU/314-E (May 8, 1998), in which she characterizes her strategy as “maintaining an investigative focus on persons holding higher levels of responsibility, or on those who have been personally responsible for the exceptionally brutal or otherwise extremely serious offences.”

5 See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674 (1994); see also M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 279 (1994); M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 AJIL 784 (1994).

6 See, e.g., Richard J. Newman, Hunting War Criminals: The First Account of Secret U.S. Missions in Bosnia, U.S. News & World Rep., July 6, 1998, at 45.

7 For example, the number of days ICTY judges actually sat in court increased from 3 in 1994 and 21 in 1995, to 131 in 1996 and 176 in 1997. The Tribunal in Action, ICTY Bull., No. 20-111-1998, at 17.

8 SC Res. 1166 (May 13, 1998). On October 16, 1998, the three additional judges were elected: David Anthony Hunt (Australia), Patrick Lipton Robinson (Jamaica), and Mohamed Bennouna (Morocco). They joined Judges Antonio Cassese (Italy), Claude Jorda (France), Richard George May (United Kingdom), Gabrielle Kirk McDonald (United States), Florence Ndepele Mwachande Mumba (Zambia), Rafael Nieto Navia (Colombia), Fouad Abdel-Moneim Riad (Egypt), Almiro Simoes Rodrigues (Portugal), Mohamed Shahabuddeen (Guyana), Wang Tieya (China), and Lai Chand Vohrah (Malaysia).

In addition, three judges who were not reelected in 1997 continued to serve until completion of their service in November 1998 on the Celebići Camp trial: Elizabeth Odio Benito (Costa Rica), Saad Saood Jan (Pakistan), and Adolphus Godwin Karibi-Whyte (Nigeria).

9 Accused Slavko Dokmanović Found Dead in His Cell, ICTY Doc. CC/PIU/327-E (June 29, 1998); Completion of Internal Inquiry Into the Death of Slavko Dokmanović, ICTY Doc. CC/PIU/334-E (July 23, 1998). The ICTY’s internal inquiry found no evidence of violence or negligence on the part of the Tribunal and attributed Dokmanović’s death to depression.

10 Milan Kovačević Passed Away, ICTY Doc. CC/PIU/337-E (Aug. 3, 1998); Completion of the Internal Inquiry Into the Death of Dr. Milan Kovačević, ICTY Doc. CC/PIU/343-E (Sept. 7, 1998).

11 International Criminal Tribunal for the former Yugoslavia: Fact Sheet, ICTY Doc. PIU/FS-38 (Dec. 3, 1998).

12 United Kingdom Becomes First State to Agree to Provide Enhanced Assistance to Witness Protection Efforts of International Tribunal, ICTY Doc. CC/PIU/258-E (Nov. 7, 1997).

13 For additional information on the jurisprudence of both the ICTY and the International Criminal Tribunal for Rwanda, see John R. W. D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (1998); William Fenrick, The Development of the Law of Armed Conflict through the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, in The Law of Armed Conflict: Into the Next Millennium 77 (U.S. Naval War College International Law Studies, Vol. 71, Michael Schmitt & Leslie Green eds., 1998); Faiza Patel King & Anne-Marie La Rosa, The Jurisprudence of the Yugoslavia Tribunal: 1994–96, 8 Eur. J. Int’l L. 123 (1997).

14 The ICTR was also established by the Security Council. SC Res. 955 (Nov. 8, 1994), reprinted in 33 ILM 1598 (1994). The ICTR is primarily based in Arusha, Tanzania; however, a large component of the prosecutor’s office is located in Kigali, Rwanda. To promote the development of a uniform jurisprudence, the ICTY Chief Prosecutor also serves as the ICTR Chief Prosecutor, and the ICTY appeals chamber also hears appeals from the ICTR trial chambers. The ICTR’s jurisprudence is also affecting the jurisprudence of the ICTY. See, e.g., Prosecutor v. Furundzija, No. IT-95-17/1-T, Judgement, paras. 160, 176 (Dec. 10, 1998).

15 The Statute of the International Criminal Court (ICC), reprinted in 37 ILM 999 (1998) [hereinafter ICC statute], was adopted in Rome on July 17, 1998, by a “non-recorded vote” of 120-7-21. Like the ICTY, the statute provides that the ICC will be based in The Hague. The statute is open for signature through December 31, 2000, and enters into force after 60 states deposit their instruments of ratification or accession. For background, see The Statute of the International Criminal Court: A Documentary History (M. Cherif Bassiounied., 1998); and the reports on the Preparatory Committee by Christopher Keith Hall in 91 AJIL 177 (1997), and 92 AJIL 124, 331, and 548 (1998). The text of the ICC statute, as well as other information on the ICC, may also be found on the Internet (http://http://www.un.org/icc).

16 The case number begins with “IT” for “International Tribunal,” followed by two digits reflecting the year of the indictment (e.g., “96”) and by a further digit roughly reflecting the sequence within which the indictment was issued vis-à-vis other indictments. Different trials may have the same indictment number if the persons were grouped under the same indictment but tried separately. The case number shown on decisions usually ends with either a “T” if it is a trial chamber decision or an “A” if it is an appeals chamber decision, but on occasion other appellations are used (e.g., Rule 61 decisions, cited supra notes 2 and 3, end. with “R61”).

17 In identifying the case, the following abbreviations will be used. Note that these abbreviations do not refer to specific decisions; rather, they refer to a case, for which (here may be multiple orders or decisions that can be identified only through reference to the date on which the decision was issued.

Aleksavski: Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14;

Blaškić: Prosecutor v. Tihomir Blaškić, Case No. IT-95-14;

Bosanski Šamac: Prosecutor v. Milan Simić, Miroslav Tadić, and Simo Zarić, Case No. IT-95-9;

Celebići Camp: Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić, and Esad Landžo, Case No. IT-96-21;

Dokmanović: Prosecutor v. Slavko Dokmanović, Case No. IT-95-13;

Erdemović: Prosecutor v. Dražen Erdemović, Case No. IT-96-22;

Furundžija: Prosecutor v. Anto Furundžija, Case No. IT-95-17;

Jelisić: Prosecutor v. Goran Jelisić, Case No. IT-95-10;

Keraterm Camp: Prosecutor v. Duško Sikirica, Damir Dosen, Dragan Fustar, Dragan Kulundzija, Nenad Benović, Predrag Banović, Dusan Knezević, and Zoran Zigić, Case No. IT-95-8;

Kordić and Čerkez: Prosecutor v. Darip Kordić and Mario Čerkez, Case No. IT-95-14;

Kovačević: Prosecutor v. Milan Kovačević, Case No. IT-97-24;

Kmojelac: Prosecutor v. Milorad Krnojelac, Case No. IT-97-25;

Kunarac: Prosecutor v. Dragoljub Kunarac, Case No. IT-96-23;

Kupreškić: Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Vladimir Santić, Drago Josipović, and Dragan Papić, Case No. IT-95-16;

Omarska Camp: Prosecutor v. Zeljko Meakić, Miroslav Kvočka, Dragoljub Prcac, Mladen Radić, Milojica Kos, Momcilo Gruban, Dusan Knezević, and Zoran Zigić, Case No. IT-95-4; and

Tadić: Prosecutor v. Duško Tadić a/k/a “Dule,” Case No. IT-94-1.

18 The appeals chamber’s decision is reprinted in 35 ILM 32 (1996) and 105 ILR 419, 453 (1997). For analyses, see William Fenrick, International Humanitarian Law and Criminal Trials, 7 Transnat’l L. & Contemp. Probs. 23 (1997); Christopher Greenwood, International Humanitarian Law and the Tadic Case, 7 Eur. J. Int’l L. 265 (1996).

19 For an analysis of the standards of review applied by the ICTY, see Faiza Patel King, Sensible Scrutiny: The Yugoslavia Tribunal’s Development of Limits on the Security Council’s Powers under Chapter VII of the Charter, 10 Emory Int’l L. Rev. 509, 541–74 (1996) (finding that the ICTY “took the view that the Security Council, in creating the Tribunal as an enforcement measure under Article 41, was subject to certain limitations deriving from sources other than the Charter”).

20 For a lucid discussion of this subject, see Bartram S. Brown, Primacy or Complementarity: Reconciling the jurisdiction of National Courts and International Criminal Tribunals, 23 Yale J. Int’l L. 383, 394–416 (1988).

21 See Robert Kushen & Kenneth J. Harris, Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda, 90 AJIL 510 (1996). As of October 1998, the only indictee to have been located in the United States is an indictee of the ICTR, who is contesting in federal court the constitutionality of his transfer to Arusha. See In re Surrender of Ntakirutimana, 988 F.Supp. 1038 (S.D. Tex. 1997) (order by federal magistrate that the indictee could not be transferred). In August 1998, a federal district court judge ordered the transfer; that order is now being challenged on a habeas petition by Ntakirutimana’s lawyer, Ramsey Clark.

22 For more detail, see Hazel Fox, The Objections to the Transfer of Criminal Jurisdiction to the UN Tribunal, 46 Int’l & Comp. L.Q. 434 (1997); Walter Gary Sharp, Sr., International Obligations to Search for and Arrest War Criminals: Government Failure in the Former Yugoslavia? 7 Duke J. Comp. & Int’l L. 411 (1997).

23 Letter Dated 8 September 1998 from the President 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 to the President of the Security Council, UN Doc. S/1998/839.

24 Justice Arbour’s Statement Regarding War Crimes Related Trials Currently Underway in Germany, ICTY Doc. CC/PIO/171-E (Mar. 19, 1997).

25 See, e.g., In re G. (Mil. Trib., Division 1, Lausanne, Switz., Apr. 18, 1997), summarized in Andreas R. Ziegler, Case note, 92 AJIL 78 (1998); Public Prosecutor v. Djajić (Sup. Ct. Bavaria, 3d Strafsenat, May 23, 1997), summarized in Christoph J. M. Safferling, Case note, id. at 528.

26 The trial chamber’s decision is reprinted in 105 ILR 420 (1997) and excerpted in 36 ILM 908 (1997).

27 Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

28 In reaching this conclusion, the trial chamber relied in part on the decision of the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27), to the effect that the acts of the contras could not be imputed to the United States. The ICTY’s reference to the Nicaragua case in both the Tadić case and the Rajić Rule 61 decision has been criticized as mixing apples (the state responsibility test in the Nicaragua case) and oranges (the standard for triggering international humanitarian law under the 1949 Geneva Conventions). See Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout, 92 AJIL 236 (1998).

29 See, e.g., Fenrick, supra note 18, at 82; George H. Aldrich, Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, 90 AJIL 64, 66–67 (1996); cf. Greenwood, supra note 18, at 270–75 (arguing that the appeals chamber was correct in leaving open for later decision in specific cases whether the conflict in Bosnia was internal or international).

30 See, e.g., Dorothea Beane, After the Dusko Tadic War Crimes Trial: A Commentary on the Applicability of the Grave Breaches Provisions of the 1949 Geneva Conventions, 27 Stetson L. Rev. 589 (1997); Fenrick, supra note 18, at 85; cf. Robert M. Hayden, Bosnia’s Internal War and the International Criminal Tribunal, Fletcher F. World Aff., Winter/Spring 1998, at 45 (arguing that the conflict in Bosnia at the relevant time was not international in character).

31 Report of the Secretary-General, supra note 1, paras. 41–44. For the Fourth Hague Convention and annexed Regulations, Oct. 18, 1907, see 36 Stat. 2277, 1 Bevans 631.

32 The appeals chamber stated that, to establish an Article 3 violation, the following conditions must be met:

(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, [the treaty must be binding on the parties at the time of the alleged offense and not be in conflict with peremptory norms of international law];

(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim.…;

(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

Tadić, Oct. 2, 1995, para. 94.

33 See generally Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554 (1995).

34 The appeals chamber characterized these rules as ones covering such areas as “protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities” (Tadić, Oct. 2, 1995, para. 127). In discussing the content of rules applicable in both international and internal conflicts, the appeals chamber referred in paragraphs 110–12 to the rules contained in General Assembly Resolution 2444, UN GAOR, 23d Sess., Supp. No. 18, at 50, UN Doc. A/7218 (1968), and General Assembly Resolution 2675, id., 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970).

35 By contrast, in September 1998, the ICTY’s sister tribunal, the ICTR, both convicted an indictee of genocide (a former mayor, Jean-Paul Akayesu) and sentenced an indictee to life imprisonment after he pleaded guilty to genocide (former Rwandan Prime Minister Jean Kambanda). See James C. McKinley, Jr., Ex-Rwandan Premier Gets Life in Prison on Charges of Genocide in ’94 Massacres, N.Y. Times, Sept. 5, 1998, at A4.

36 Vukovar Rule 61 Decision, supra note 3, para. 30.

37 For further discussion of both the ICTVs and the ICTR’s jurisdiction, see Marie-Claude Roberge, Jurisdiction of the Ad Hoc Tribunals for the Former Yugoslavia and Rwanda over Crimes against Humanity and Genocide, 37 Int’l Rev. Red Cross 651 (1997).

38 Statement by the Prosecutor Following the Withdrawal of the Charges Against the 14 Accused, supra note 4.

39 See Report of the Secretary-General, supra note 1, para. 101.

40 See Thieroff & Amley, supra note 2, at 260.

41 False Identifications, ICTY Doc. CC/PIU/336-E (July 24, 1998).

42 These decisions are reprinted in 108 ILR 68 (1998).

43 The principle of non bis in idem is similar to, but different from, the prohibition on “double jeopardy” in common law countries. Non bis in idem addresses the possibility of repeated prosecutions for the same conduct in different legal systems, whereas double jeopardy generally refers to repeated prosecutions for the same conduct in the same legal system.

44 For a discussion of the ICTY Rules on evidence, see Rod Dixon, Developing International Rules of Evidence for the Yugoslav and Rwandan Tribunals, 7 Transnat’l L. & Contemp. Probs. 81 (1997).

45 Sec Yves Nouvel, Précisions sur le pouvoir du Tribunal pour l’ex-Yougoslavie d’ordonner la production des preuves el la comparution des témoins: L’Arrét de la Chambre d’appel du 29 octobre 1997 dans l’affaire Blaškić, 102 Revue Générale de Droit International Public 157 (1998). In theory, the problem of the reluctant witness can arise in various contexts, including when journalists and representatives of nongovernmental organizations hesitate to testify out of concern that they might compromise their activities in the former Yugoslavia. See Françoise J. Hampson, The International Criminal Tribunal for the Former Yugoslavia and the Reluctant Witness, 47 Int’l & Comp. L.Q. 50 (1998).

46 See Colin Warbrick, Co-operation with the International Criminal Tribunal for Yugoslavia, 45 Int’l & Comp. L.Q. 947 (1996).

47 A resumed session was scheduled for November 1998 for the trial chamber to hear evidence and oral argument from both sides on the issue, before resuming its deliberations. The chamber ultimately found that the witness’s testimony was credible. See Furundžija Judgment, para. 108 (Dec. 10, 1998).

48 Those interested in the U.S. program for providing lead information to the ICTY prosecutor on a confidential basis will wish to review the reports to Congress by the Secretary of State, which are prepared every six months pursuant to U.S. foreign assistance legislation. See Foreign Operations Export Financing, and Related Programs Appropriations Act of 1998, Pub. L. No. 105-118, §553, 111 Stat. 2386, 2422 (1997).

49 See ICTY Rules 69 & 75. For more detailed discussion of ICTY witness protection issues, in particular full anonymity, see Natasha A. Affolder, Tadić, the Anonymous Witness and the Sources of International Procedural Law, 19 Mich. J. Int’l L. 445 (1998); Vincent M. Creta, Comment, The Search for Justice in the Former Yugoslavia and Beyond: Analyzing the Rights of the Accused under the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, 20 Houston J. Int’l L. 381 (1998); Y. M. O. Featherstone, The International Criminal Tribunal for the Former Yugoslavia: Recent Developments in Witness Protection, 10 Leiden J. Int’l L. 179 (1997); Christine M. Chinkin, Due Process and Witness Anonymity, 91 AJIL 75 (1997); Monroe Leigh, Witness Anonymity Is Inconsistent with Due Process, id. at 80; Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses against the Accused, 90 AJIL 235 (1996); Alex C. Lakatos, Note, Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses’ Needs against Defendants’ Rights, 46 Hastings L.J. 909, 923–37 (1995).

50 The trial chamber’s decision on whether to grant full anonymity appears in Tadić (Aug. 10, 1995), reprinted in 7 Crim. L.F. 139 (1996), 105 ILR 599 (1997).

51 See Featherstone, supra note 49, at 186.

52 Celebići case: Prosecution Case to Continue Friday after Decision on Contempt Issue, ICTY Doc. CC/PIU/204-E (May 29, 1997).

53 Under the ICTY Statute and Rules, ICTY judges have no express disciplinary powers over the Office of the Prosecutor. Indeed, a trial chamber has found that it has no jurisdiction to consider the matter of a code of conduct for the prosecution (Kovaćević, May 12,1998). By contrast, defense counsel appearing before ICTY trial chambers are bound by the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal, ICTY Doc. IT/125 (June 12, 1997), reprinted in 37 ILM 488 (1998).

54 In the Case of Dragan Opacić, Decision on Application for Leave to Appeal, Case No. IT-97-7-Misc.1 (June 3, 1997).

55 See, e.g., Colloquy, No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 Hastings Women’s L.J. 89 (1994) (report by the Women in the Law Project of the International Human Rights Law Group). For more information on sexual assault issues before the ICTY and as may arise before the ICC, see Patricia Viseur Sellers & Kaoru Okuizumi, Intentional Prosecution of Sexual Assaults, 7 Transnat’l L. & Contemp. Probs. 45 (1997).

56 This topic is examined in depth in another contribution to this issue, but aspects are summarized here. Kelly D. Askin, Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status, infra p. 97.

57 Charges of sexual assault will be tried in the Omarska Camp case and the case against Dragoljub Kunarac. In Omarska Camp, a deputy commander of the camp, Miroslav Kvočka, and shift commanders Mladen Radić and Milojica Kos are charged with command responsibility for sexual assaults committed by subordinates at the camp during May-August 1992. Separately, Kunarac was named as one of the defendants in the first indictment dealing exclusively with sexual offenses. According to the indictment, Kunarac was the commander of a special unit that was directly involved in the gang rape, torture and enslavement of Muslim women in Foča from April 1992 to February 1993. He is charged with 9 counts of crimes against humanity and 12 counts of violations of the laws or customs of war (a grave breach count was dropped by the prosecutor when the indictment was amended in August 1998).

58 See Olivia Swaak-Goldman, Case note, 92 AJIL 282 (1998); David Turns, The International Criminal Tribunal for the Former Yugoslavia: The Erdemović Case, 47 Int’l & Comp. L.Q. 461 (1998); Sienho Yee, The Erdemović Sentencing Judgement: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia, 26 Ga. J. Int’l & Comp. L. 263 (1997).

59 The trial chamber’s decision is reprinted in 108 ILR 180 (1998).

60 See, e.g., Prosecutor’s Brief on Aggravating and Mitigating Factors, Erdemović (Nov. 11, 1996). For some of the difficulties in trying to take account of “general practice” in the former Yugoslavia, as well as a general discussion of sentencing by the ICTY and the ICTR, see William A. Schabas, Sentencing by International Tribunals: A Human Rights Approach, 7 Duke J. Comp. & Int’l L. 461 (1997).

61 See ABA Special Task Force, Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia 37–40 (Monroe Leigh & Elizabeth Echols eds., 1993).

62 Article 33 of the ICC statute, supranote 15, permits a defense based on the orders of a superior where (1) the person was under a legal obligation to obey orders of the government or the superior in question; (2) the person did not know that the order was unlawful; and (3) the order was not manifestly unlawful. However, Article 33 provides that any order to commit genocide or crimes against humanity is manifestly unlawful.

63 See Marlise Simons, U.N. War Crimes Tribunal Steps up Its Inquiry Into Kosovo, N.Y. Times, Aug. 26, 1998, at A4; Philip Shenon, Kosovo’s Crisis Is Bad, and Getting Worse, N.Y. Times, Sept. 16, 1998, at A8.

64 See, e.g., Lucas W. Andrews, Comment, Sailing Around the Flat Earth: The International Criminal Tribunal for the Former Yugoslavia as a Failure of Jurisprudential Theory, 11 Emory Int’l L. Rev. 471 (1997).

65 The ICTR’s principal decision assessing its own jurisdiction paid close attention to the ICTY appeals chamber’s decision on jurisdiction in the Tadić case. Prosecutor v. Kanyabashi, Decision on Jurisdiction, Case No. ICTR-96-15-T (June 18, 1997), summarized in Virginia Morris, Case note, 92 AJIL 66 (1998).

66 See, e.g., Public Prosecutor v. Djajić, supra note 25 (when convicting Bosnian Serb of war crimes in Bosnia, German court referred to ICTY proceedings).

67 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.

68 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,1950, 213 UNTS 221.

69 See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para. 81 (July 8, 1996), reprinted in 35 ILM 809 & 1343 (1996).