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The International Criminal Tribunal for the former Yugoslavia and the Kosovo conflict

Published online by Cambridge University Press:  27 April 2010

Sonja Boelaert-Suominen
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International Review of the Red Cross , Volume 82 , Issue 837: The Kosovo crisis and international humanitarian law/La crise du Kosovo et le driot international humanitaire , March 2000 , pp. 217 - 252
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Copyright © International Committee of the Red Cross 2000

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References

1 For a chronology of the conflict consult, for instance, Silber, L. and Little, A., Yugoslavia: Death of a Nation, 2nd ed., Penguin Books, BBC, London, 1996Google Scholar; Zimmerman, W., Origins of a Catastrophe: Yugoslavia and its Destroyers — America's Last Ambassador Tells What Happened and Why, Times Book, New York, 1996Google Scholar; Rogel, C., The Breakup of Yugoslavia and the War in Bosnia, Greenwood Press, Westport, Conn., 1998Google Scholar; Glenny, M., The Fall of Yugoslavia, revised ed., Penguin Books (USA), 1996, pp. 129–130Google Scholar.

2 See Rich, R., “Recognition of States: The collapse of Yugoslavia and the Soviet Union”, European journal of International Law, Vol. 4, 1993. pp. 38–53Google Scholar; Janev, I., “Legal aspects of the use of the provisional name for Macedonia in the United Nations system”, American journal of International Law, Vol. 93, 1999, pp. 155–160Google Scholar.

3 Macedonia, as will be explained below, sought to establish its independence from the SFRY as well.

4 However, as will be seen below, the legal status of this claim is still controversial.

5 Resolution 808 (1993) of 22 February 1993. — The companion tribunal for Rwanda (the ICTR) was likewise established via the mechanism of a Security Council resolution as a measure taken under Chapter VII. However, the ICTR was set up when the armed conflict in Rwanda had largely ended, following the take-over of the country by the former rebels.

6 In the case of Dragon Nikolic, alleged commander of a camp at Susica, in northeastern Bosnia and Herzegovina, set up within one month after the take-over by Serbian forces of the Bosnian city of Vlasenica, in April 1992; Press Release, Registry, CC/PIO/022-E, 4 October 1995.

7 The marketplace bombing in Sarajevo occurred in February 1994; in May 1995, the Croatian army recaptured areas in Slavonia; in July 1995, the safe area of Srebenica was taken over by the Serbs; the following month, Croatia captured the Krajina area. Serious violations of international humanitarian law were committed in each of these and in other instances.

8 General Assembly, 54th session, Security Council, 54th year, 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, A/54/187, S/1999/846, 25 August 1999, p. 9, para. 2.

9 ICTY Fact Sheet, 17/11/99, PIS/FS-55.

10 Since 1997, the ICTY Prosecutor has pursued a strategy aimed at high-level offenders and at issuing indictments under seal. The first time the use of sealed indictments came to light was in the cases of Slavko Dokmanovic, arrested on 27 June 1997, and Milan Kovacevic, arrested on 10 July 1997. See Tavernier, P., “The experience of the International Criminal Tribunals for the former Yugoslavia and for Rwanda”, IRRC, No. 321, November-December 1997, p. 616Google Scholar.

11 Fenrick, W., “The development of the law of armed conflict through the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia”, Journal of Armed Conflict Law, Vol. 3, 1998, p. 198Google Scholar.

12 Press Release, Office of the Prosecutor, 10 March 1998, CC/PIO/302-E.

13 The Prosecutor against Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojiljkovic, Case No. IT-99–37-I, Indictment of 22 May 1999, para. 25.

14 General Assembly, 53rd session, Security Council, 53rd year, 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, A/53/219, S/1998/737, 10 August 1998, p. 31, para. 118.

15 Press Release, Office of the Prosecutor, 7 October 1998, CC/PIU/351-E.

16 Press Release, Office of the Prosecutor, 15 October 1998, CC/PIU/353-E.

17 Press Release, President, 5 November 1998, JL/PIU/359-E; letter by ICTY President McDonald to the Security Council, 6 November 1998.

18 Loc. cit. (note 13), paras 27–28.

19 Press Release, Office of the Prosecutor, 20 January 1999, CC/PIU/379-E.

20 Loc. cit. (note 13), paras 23–37.

21 Press Release, Office of the Prosecutor, 26 March 1999, JL/PIU/389-E.

22 Loc. cit. (note 13).

23 Ibid..

24 Warrants of Arrest and Orders for Surrender against all the accused, Case No. IT-37–1, of 24 May 1999.

25 Pursuant to Sub-Rule 55 (D) of the Rules and Procedures of Evidence of the ICTY.

26 Ibid.

27 NATO claimed that by the end of May 1999, over 230,000 refugees had arrived in the Former Yugoslav Republic of Macedonia, over 430,000 in Albania and some 64,000 in Montenegro. In addition, approximately 21,500 had reached Bosnia and over 61,000 had been evacuated to other countries. Within Kosovo itself, an estimated 580,000 people had been rendered homeless. Furthermore, NATO estimated that by the end of May, 1.5 million people, i.e. 90% of the population of Kosovo, had been expelled from their homes, that some 225,000 Kosovar men were believed to be missing, and that at least 5,000 Kosovars had been executed. Some of these figures are controversial. The ICTY has, as will be seen below, received reports of around 11,000 deaths.

28 Press Release, The Hague, 27 May 1999, JJL/PIU/403-E.

29 Source: NATO website.

30 Human Rights Watch, Federal Republic of Yugoslavia, Abuses against Serbs and Roma in the New Kosovo, August 1999, Vol. 11, No. 10 (D)Google Scholar.

31 Press Release, SC/6749, 10 November 1999, 4063rd Meeting of the Security Council.

32 For good documentary sources consult Trifunovska, S. (ed.), Yugoslavia Through Documents. From its Creation to its Dissolution, Martinus Nijhoff Publishers, The Hague, 1994Google Scholar; Bethlehem, D.Weller, M., The Yugoslav Crisis in International Law: General Issues, Part I, Vol. 5, Cambridge International Documents Series, Grotius/Cambridge University Press, 1997.Google Scholar

33 See Report of the Secretary-General, pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, S/25704, paras 4–11.

34 Ibid., paras 18–30.

35 See for instance, Pellet, A., “Le Tribunal criminel international pour I'ex-Yougoslavie”, Revue Générate de Droit International Public, Vol. 98, 1994, pp. 12–32Google Scholar; David, E., “Les tri-bunaux pénaux internationaux”, Lecture Notes, San Remo, 28 May 1998 (on file with author), paras 12.16–12.25Google Scholar; Ch. Greenwood, , “The development of international humanitarian law”, Max Planck Yearbook of United Nations Law, Vol. 2, 1998, pp. 99–109Google Scholar; Murphy, S., “Progress and jurisprudence of the International Criminal Tribunal for the former Yugoslavia”, American Journal of International Law, Vol. 93, 1999, pp. 63–64.Google Scholar

36 Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, (“Tadic Jurisdiction Decision”), pp. 5–24.

37 Ibid., paras 28–40.

38 A Croat indictee, whose surrender the Tribunal has sought for years, has recently turned to the European Court of Human Rights in the hope of stalling or preventing his surrender by Croatia to the Hague Tribunal. In his individual petition to the ECHR he challenges, inter alia, the legitimacy of the ICTY's establishment as an ad hoc tribunal under Chapter VII of the UN Charter and its independence from the UN Security Council. He also alleges that its jurisdiction entails unjustified primacy over a national jurisdiction: Application No. 51891/99 of 2 November 1999, Mladen Naletilic v. Republic of Croatia, European Court of Human Rights, Strasbourg. The applicant is indicted by the ICTY together with Vinko Martinovic for his alleged involvement in the ethnic cleansing of the Mostar Municipality: Press Release, Registry, 22 December 1998, CC/PIU/377-E.

39 UN Security Council Resolution 1160, 31 March 1998, para. 17.

40 Press Release, President, 5 November 1998, JL/PIU/359-E, and letter by President McDonald to the Security Council, 6 November 1998.

41 The author is of the view that serious violations of human rights and humanitarian law can no longer be regarded as falling exclusively within the sovereignty of States.

42 Greenwood, op. cit, (note 35), pp. 106/7.

43 Rich, op. cit. (note 2), p. 53. See also Rosenne, S., “Automatic treaty succession”, in Klabbers, J. and Lefeber, R., Essays on the Law of Treaties, Martinus Nijhoff Publishers, The Hague, 1998, pp. 97–106Google Scholar; Craven, M., “The Genocide Case, The law of treaties and State succession”, British Yearbook of International Law, Vol. 68, pp. 127–164Google Scholar.

44 As noted by the International Court of Justice, in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. FRY), General List No. 91, Decision on Preliminary Objections, 11 July 1999, para. 17.

45 Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom all based themselves on resolutions of the General Assembly and the UN Security Council in arguing that the Federal Republic of Yugoslavia is not a member State of the United Nations or a party to the ICJ Statute as a successor State to the former Socialist Federal Republic of Yugoslavia, and that Yugoslavia cannot, therefore, rely on the Court's Statute in establishing jurisdiction in these cases. Legality of Use of Force, I.C.J. General List No. 99/25, Request for Provisional Measures, decision of 2 June 1999.

46 Ibid. In the Genocide Case the ICJ also decided that it was not necessary to decide the question of the status of the FRY within the United Nations, loc. cit. (note 44).

47 For the practice of the UN Human Rights Committee in regard to the ICCPR see Kamminga, M., “State succession in respect of human rights treaties”, European journal of International Law, Vol. 7, pp. 469–484.CrossRefGoogle Scholar

48 Article 1 of the ICTY Statute reads as follows: “The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.” This is clarified in Article 8 as follows: “The territorial jurisdiction of the International Tribunal shall extend to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters. The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991.”

49 The Report of the Secretary-General on the establishment of the Tribunal shows that the date of 1 January 1991 was deliberately chosen so as not to prejudge the characterization of the conflict and in order to cover the widest possible range of violations of international humanitarian law. S/25704, para. 16, p. 17. See also Pellet, op. cit. (note 35), para. 23, pp. 32/33.

50 Greenwood, op. cit. (note 35), p. 106. In fact, some feared that the Security Council would decide that the ICTY's task would come to an end with the conclusion of the Dayton/Paris agreements in December 1995. Tavernier, op. cit. (note 10), pp. 653/4.

51 Press Release, Office of the Prosecutor, 22 December 1999, PR/P.I.S./457-E.

52 Tadic jurisdiction Decision, p. 37, para. 70.

53 The FRY views Kosovo as an internal problem and believes it has the sovereign right to use armed force to fight “terrorism” and prevent secession of a part of its territory. Statement to the Security Council, 24 March 1999, Press Release SC/6657. — Hundreds of ethnic Albanians arrested in Kosovo in the spring of 1999 are now being tried in Serbia, mostly on charges of terrorism: “Kosovo mob kills elderly Serb and beats 2 others”, International Herald Tribune, 30 November 1999.

54 Communication by the ICTY Prosecutor to the Contact Group (established by Dayton) on 7 July 1998.

55 Tadic Jurisdiction Decision, para. 70, p. 37.

56 Tadic Jurisdiction Decision, paras 67–70, pp. 36–37.

57 See Sandoz, Y./Swinarski, C./Zimmer-mann, B., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987Google Scholar, paras 157/8, which mentions (para. 148) that the article was accepted by consensus in the preparatory committee and at the plenary conference.

58 These are estimates cited in the appeal launched on 6 August 1999 by six human rights groups — four from Kosovo and two international. Source: Human Rights Watch website.

59 Human Rights Watch, 8 November 1999.

60 Loc. cit. (note 53).

61 Statement by Admiral Guido Venturoni, Chairman of the NATO Military Committee, to AFP, 10 November 1999.

62 “As Seen, As Told”, 2nd part, 6 December 1999, Report by OSCE, Mission in Kosovo/Office for Democratic Institutions and Human Rights.

63 Art. 5 of the ICTY Statute is drafted in a manner which is in some respects more restrictive than customary international law, but which also omits reference to some of the previous requirements for acts to constitute crimes against humanity under general international law. As noted in the Tadic Opinion and Judgment, the inclusion of the condition that crimes against humanity be committed “in armed conflict” is no longer required by customary international law. Tadic Opinion and Judgment, 7 May 1997, pp. 236–237, para. 627.

64 Press Release, Office of the Prosecutor, 24 July 1999, PR/P.I.S./422-E.

65 Tadic Jurisdiction Decision, pp. 44–48, paras 79–84; Prosecutor v. Tadic, Judgment, Case No. IT-94–1-AR72, App. Ch., 15 July 1999, p. 33, para. 80 (Tadic Appeal Decision).

66 Fenrick, op. cit. (note 11), p. 220.

67 Tadic Jurisdiction Decision, pp. 39–43, paras 72–77.

68 Ibid., p. 39, para. 72.

69 Ibid., pp. 39–43, paras 72–77.

70 Ibid., p. 39, para. 72.

71 For a detailed discussion of this jurisprudence, see Fenrick, W., “The application of the Geneva Conventions by the International Criminal Tribunal for the former Yugoslavia”, IRRC, No. 834, June 1999, pp. 317–329Google Scholar.

72 Tadic Appeal Decision, pp. 50–51, para. 123.

73 Tadic Appeal Decision, p. 60, para. 141; p. 69, para. 156.

74 Tadic Appeal Decision, pp. 72–74, paras 164–169.

75 Declaration on principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations, UNGA Resolution 2625 (XXV).

76 For recent scholarly exchanges on this subject, consult the debates on website http://www.jurist.law.pitt.edu/academic.htm.

77 For a doctrinal and prospective analysis of the hypothesis of secession under Additional Protocol I see David, E., Principes de droit des conflits armes, 2nd ed., Bruylant, Brussels, 1999, pp. 162–171Google Scholar.

78 Tadic Appeal Decision, pp. 58–59, para. 137.

79 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, I.C.J. Reports 1986, p. 104, para. 219.

80 Judgment of the International Military Tribunal, Nuremberg, 1 October 1946. For a discussion of subsequent national trials see Law Reports of Trials of War Criminals, Vol. XV, UN War Crimes Commission, 1949, pp. 150–154.

81 Pellet, op. cit. (note 35), pp. 39–40.

82 Report of the Secretary-General, op. cit. (note 33), para. 51; Pellet, op. cit. (note 35), pp. 39–40.

83 Casillo, M., “La compétence du Tribunal pénal pour la Yougoslavie”, XCVIII Revue Générate de Droit International Public, Vol. 98, 1994, pp. 77–80Google Scholar.

84 Loc. cit. (note 44).

85 Loc. cit, (note 45).

86 “Croatia institutes proceedings against Yugoslavia for violations of the Genocide Convention”, I.C.J. Press Communiqué 99/38 of 2 July 1999, and I.C.J. General List No. 118.

87 Press Release, Office of the Prosecutor, 31 March 1999, CC/PIU/391-E.

88 Press Release, Office of the Prosecutor, 13 May 1999, CC/PIU/401-E.

89 Press Release, Office of the Prosecutor, 29 September 1999, PR/P.I.S./437-E.

90 Press Release, SC/6749, 10 November 1999, 4063rd Meeting of the Security Council.

91 This follows from Articles 25 and 103 of the UN Charter, and several Security Council resolutions on the matter. See Resolution 827, para. 4.

92 Greenwood, op. cit. (note 35), pp. 106/7.

93 Secretary-General's Report, op. cit. (note 33), paras 64–68.

94 Office of the Prosecutor, Press Release, 29 September 1999, PR/P.I.S./437-E.