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A tremendous challenge for the International Criminal Tribunals: reconciling the requirements of international humanitarian law with those of fair trial

Published online by Cambridge University Press:  13 January 2010

Anne-Marie La Rosa
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Extract

The two International Criminal Tribunals set up by the United Nations Security Council in 19931 and 19942 are in the process of demonstrating that international repression of serious violations of international humanitarian law is no longer a purely theoretical concept. A total of 21 persons charged with or suspected of committing such breaches have been transferred to the seat of the Arusha Tribunal, and two judgments sentencing the defendants to prison terms have been handed down by the Hague Tribunal. The two Tribunals are competent to hear cases against persons allegedly responsible for serious violations of humanitarian law, but in so doing they are also required, under their respective Statutes, to ensure that the internationally recognized rules relating to the rights of the accused are fully respected at all stages of the proceedings. Article 20 of the Statute of the Tribunal for Rwanda and Article 21 of that of the Tribunal for the former Yugoslavia, modelled on Article 14 of the International Covenant on Civil and Political Rights, enumerate in detail the rights that must be accorded to every accused person.

Type
International criminal jurisdiction and international humanitarian law: the Tribunals for the former Yugoslavia and for Rwanda
Information
International Review of the Red Cross (1961 - 1997) , Volume 37 , Special Issue 321: International criminal jurisdiction and international humanitarian law: the Tribunals for the former Yugoslavia and for Rwanda , December 1997 , pp. 635 - 650
Copyright
Copyright © International Committee of the Red Cross 1997

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Footnotes

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Anne-Marie La Rosa currently works as a legal officer at the International Labour Office in Geneva. After completing her studies in Canada and in Geneva, the author served as a law clerk in the Chambers of the International Criminal Tribunal for the former Yugoslavia in The Hague. She is a member of the Quebec Bar. The views expressed in this article are strictly personal.

References

1 Resolution 827 (1993), 3217th meeting, 25 May 1993.

2 Resolution 955 (1994). 3453rd meeting, 8 November 1994.

3 The text of Article 21 of the Statute of the International Criminal Tribunal for the former Yugoslavia is reproduced in the Annex hereto.

4 1949 Law Reports of Trials of War Criminals (hereinafter L.R.T.W.C.), Vol. XII. pp. 62 and 63.

5 Geneva Convention of July 27, 1929, relative to the Treatment of Prisoners of War. in particular Arts 45–67.

6 “It is a recognised rule that a person accused of having committed war crimes is not entitled to the rights in connection with his trial laid down for the benefit of prisoners of war by the Geneva Prisoners of War Convention of 1929.” Trial of General Tomoyuki Yamashita, in Trial of War Criminal Reports, Vol. III, pp. 105 ff.Google Scholar and 1949 L.R.T.W.C., Vol. IV, pp. 1 ff.Google Scholar; Trial of Robert Wagner, commentary in 1949 L.R.T.W.C., Vol. III. at p. 50 Google Scholar; Trial of Hans Albin Rauter, commentary in 1949 L.R.T.W.C., Vol. XIV. pp. 114–118.Google Scholar

7 Rule 93 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda has the same wording. Unless otherwise indicated, this article refers to the provisions of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia and to the decisions handed down by this Tribunal.

8 Statute, Art. 2 (d).

9 In the first Annual Report of the Tribunal, it is specified with regard to the consistent pattern of conduct inherent to crimes against humanity that: “the Tribunal will need to look not only at the behaviour of individual defendants but also at the more general conduct of groups, or military or paramilitary units, and to establish that the mass crimes alleged to have been committed in the former Yugoslavia are not individual events but part of a wider systematic practice; hence the importance of providing for the admissibility of evidence relating to ‘patterns of conduct’ (Rule 93). Obviously, it will then be for the judges to determine what weight to give to such evidence in establishing the elements of the alleged offence. (…) This evidence may also prove of great significance whenever one has to establish whether one of the basic requirements of genocide, namely ‘the intent to destroy, in whole or in part, a group’, is present. Plainly, whenever the intent has not been expressly and specifically manifested, one of the means of ascertaining its existence may lie in investigating the consistent behaviour of groups or units, so as to determine whether that intent may be inferred from their ‘pattern of conduct’.” 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, Yearbook of the International Criminal Tribunal for the Former Yugoslavia, 1994, p. 101.Google Scholar

10 In this connection, see Sopinka, J., The law of evidence in Canada, Markham, Butterworths, 1992, pp. 431–522 Google Scholar; Bellemare, J., Viau, L., Droit de la preuve pénale, Themis, Montreal, 1991, pp. 109–151.Google Scholar

11 R. v. Robertson, (1987)Google Scholar 1 Supreme Court Reports (hereinafter S.C.R.), p. 918.Google Scholar

12 R. v. Green, (1988) 40 Canadian Criminal Cases (3d) 333 (Montreal Court of Appeal), confirmed (1988) 1 S.C.R., p. 288.Google Scholar

13 R. v. Robertson, op. cit. (note 11).

14 Sweitzer v. R., (1982) 1 S.C.R., p. 949.Google Scholar

15 Nothing is specified in Rule 93 itself.

16 Prosecutor v. Tadic, Opinion and Judgment, Case No. IT-94-1-T, pp. 17687–17338 (7 May 1997).

17 This count was dropped.

18 Prosecutor v. Tadic, op. cit. (note 16), p. 17439.Google Scholar

19 The elements of a predetermined plan or of an “administrative practice” have been examined by the judicial bodies of the Council of Europe with regard to Article 3 of the European Convention on Human Rights, which prohibits torture (see in particular Ireland v. United Kingdom, 18 01 1978 Google Scholar, Series A, No. 25; France, Norway, Denmark, Sweden and the Netherlands v. Turkev, Decision of the Commission of 6 December 1983, Decisions and Reports 35, p. 143 Google Scholar) and by the Inter-American Court of Human Rights ( Velasquez Rodriguez v. Honduras, 29 07 1988, 1989 CrossRefGoogle Scholar International Legal Materials, p. 294 Google Scholar). Repetition of the acts and the tolerance of the authorities proved to be determining.

20 R. v. Finta, (1994) 1 S.C.R., p. 701 Google Scholar. In this case, three judges entered a dissenting opinion in which they concluded that only the moral element included in the underlying offence was to be proved, without any need to establish a link between the accused and the pattern of conduct or general context of the offence with which the accused was charged.

21 Art. 47, para. 2: “The judicial proceedings against a prisoner of war shall be conducted as quickly as circumstances will allow. The period during which prisoners shall be detained in custody shall be as short as possible.”

22 Geneva Convention of August 12, 1949, relative to the Treatment of Prisoners of War. in particular Arts 82–88 and 99–108.

23 Art. 103, para. I: “Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that the trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.”

24 International Covenant on Civil and Political Rights, Art. 9, para. 3. See also Principle 36 of the Draft body of principles on the right to fair trial and a remedy, in The right to a fair trial: Current recognition and measures necessary for its strengthening. Final report prepared by Mr Stanislav Chernichenko and Mr William Treat, UN document E/CN.4/Sub.2/1994/24 (3 June 1994), publication of which the Commission on Human Rights recommended in its resolution 1995/10.

25 European Convention on Human Rights, Art. 5, para. 1.

26 United Nations Standard Minimum Rules for Non-custodial Measures, UN resolution A/45/110, 14 December 1990, para. 6.1. In this connection, see also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN resolution A/43/173 (9 December 1988), Principle 39.

27 Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990, Report prepared by the Secretariat, Chapter I, Section C, resolution 17, para. 2. The European Convention refers to “reasonable suspicion” that the person arrested has committed an offence and to the case where “it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so” (Art. 5, para. I (c)).

28 Rule 64 of the Rules of Procedure and Evidence.

29 Rule 65 (A) of the Rules of Procedure and Evidence.

30 Statute, Art. 19.

31 Prosecutor v. Mucic, Case No. IT-96-21-T, Decision on motion for provisional release filed by the accused Zejnil Delalic, pp. 1523–1504 (1 October 1996), at p. 1510.

32 In particular, risk of flight or destruction of evidence.

31 Draft statute of an international criminal court, Report of the International Law Commission on the work of its forty-sixth session (1994)Google Scholar, General Assembly Official Records, Suppl. No. 10 (A/49/10), paras 23–209.

34 Ibid., comments on Art. 29.

35 The Rules further provide that the Chamber may impose such conditions upon the provisional release of the accused as it may determine appropriate, including the execution of a bail bond (Rule 65 (C)) and, if necessary, may issue an international warrant of arrest to secure the presence of an accused who has been provisionally released (Rule 65 (D)).

36 Rule 65 (B) of the Rules of Procedure and Evidence.

37 Prosecutor v. Djukic, Case No. IT-96-20-T, Decision rejecting the application to withdraw the indictment and order for provisional release, pp. 5/220bis-1/220bis (24 April 1996).

38 Prosecutor v. Blaskic, Case No. IT-95-14-T, Decision rejecting a request for provisional release (25 April 1996); Blaskic, Case No. 1T-95-14-T, Order denying a motion for provisional release, pp. 8/3047bis-1/3047bis (24 December 1996): Prosecutor v. Mucic, Case No. IT-96-21-T, Decision on motion for provisional release filed by the accused Zejnil Delalic. loc. cit. (note 31); Mucic, Case No. IT-96-21-T, Decision on motion for provisional release filed by the accused Hazim Dclic, pp. 1689–1676 (28 October 1996); Mucic, Case No. IT-96-21-T, Decision on motion for provisional release filed by the accused Landzo (16 January 1997).

39 Prosecutor v. Muck, Case No. IT-96-21-T, Decision on motion for provisional release filed by the accused Zejnil Delalic, loc. cit. (note 31), at p. 1509.

40 European Convention on Human Rights, Art. 5, para. 3.

41 Neumeister v. Austria, 27 06 1968 Google Scholar, Series A, No. 8. The Committee on Human Rights considers that maintenance of pre-trial detention should be not only lawful but also reasonable in all respects (No. 305/1988, Van Alphen v. The Netherlands, Decision of 23 July 1990, UN doc. A/45/40, Vol. II).

42 Neumeister v. Austria, ibid.