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The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal

Published online by Cambridge University Press:  17 January 2008

Hazel Fox
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In a previous issue of this Quarterly Colin Warbrick gave an exposition of the British Order in Council (The United Nations (International Tribunal) (Former Yugoslavia) Order 1996) which implements Security Council Resolution 827. This note gives an alternative view of the scope and legality of that Order.

Why. it may be said, should anyone want to raise objection to the Order in Council implementing Resolution 827 when it merely introduced a procedure which ensures war criminals (whether Serb, Croat, or Bosnian) seeking refuge in Britain are promptly handed over to face justice?

The answer is that, whilst the immediate purpose of the Order in Council may be unobjectionable, the means by which it has been achieved are out of proportion to that purpose, and open the door to further unconsidered transfers of national powers.

Information

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 46 , Issue 2 , April 1997 , pp. 434 - 442
Copyright
Copyright © British Institute of International and Comparative Law 1997

References

1. 45(1996)I.C.L.Q.947.

2. See generally O'Brien (1993) 87 AJ.I.L. 639: Weckel (1993) 39 A.F.D.I. 232: Pellet (1994) 98 R.G.D.I.P. 7: Schraga and Zacklin (1994) 5 Eur. J. of Int. Law 360: Levie (1995) 21 Syracuse J. Int. Law and Commerce 1.

3. Crawford “The ILC adopts a Statute for an International Criminal Court.” (1995) 89 AJ.I.L. 404.

4. Prosecutor v. Dusko Tadic: Decision on the defence motion for jurisdiction Trial Chamber (Case No.IT–94–l–T) Interlocutory Appeal. Appeal chamber (Case No.IT–94–1–ART 72. (1996)): 35 I.L.M. 32.

5. Case No.IT–94–IT. paras.5,8.40.

6. CaseNo.IT–94–l–ART72.para.27.

7. Ibid, para.24.

8. See Kushen and Harris “Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda” 90 (1996) AJ.l.L. 510.

9. Memorandum of the Foreign and Commonwealth Office to the Joint Parliamentary Committee on Statutory Instruments. 27 March 1996. para.ll. “The nature of an International Tribunal crime” is considered further below.

10. Australian International War Crimes Tribunals Act 1995. ss.16.26.35.36: New Zealand International War Crimes Tribunals Act 1995. ss.12,57.

11. The Prosecutor v. Dnsko Tadic aka “Dale”, Decision on the Prosecutor's motion requesting protective measures for victims and witnesses. Trial Chamber. International Tribunal. Case No.IT–94–l–T. Aug. 10 1995. para.28.

12. Warbrick, (1996) 5 J. of Transnat. Law and Contemp. Problems, p.237 at 247.Google Scholar

13. Thus, on 10 Feb. 1993. US Secretary of State Warren Christopher announced that among “a series of new steps that President Clinton has decided to take with regard to the former Yugoslavia” was “the urgent creation of a war crimes tribunal at the United Nations to bring justice and deter further atrocities”. Warren Christopher New Steps Towards Conflict Resolution in the Former Yugoslavia, 4 US Dept. of State dispatch. No.7.81 (1993): see also Roberts “Laws of War: Problems of Implementation in Contemporary Conflicts” (1995) 6 Duke J. of Int. & Comp. Law 11.

14. “The establishment of the international tribunal would contribute to the restoration and maintenance of peace”. Report of UN Sec-General pursuant to para.2 of Sec. Council Res.808.3 May 1993. UN SCOR. 48th Sess. UN Doc. S/25704 (1993) para. 126. D'Amato in (1994) 88 AJ.I.L. 500 went so far as to suggest the tribunal should be used as “a bargaining chip” for the achievement of a peace settlement, (at 505.)

15. Statement of 24 Nov. 1995. Bulletin of the International Criminal Tribunal for the former Yugoslavia, No.l. 15 Oct. 1995.

16. Bulletin of the International Criminal Tribunal for the former Yugoslavia. No.5/6. 24 April 1996.

17. (1606) 12 Co. Rep. 63.

18. (1608) 12 Co. Rep. 31:77 ER 1312.

19. (1940) 63 C.L.R. 73. distinguished in re Winnecke (1982) 56 AJ.L.R. 506. applied in Bethel v. Douglas (1995) 1 W.L.R. 794 at 800 (P.C.).

20. Hansard, H. L. vol. cols.373–379,12 02. 1946.Google Scholar

21. Hansard, H. C. vol.421, cols. 1513–1528,5 04 1946.Google Scholar

22. Hansard, H. C. vol.421, cois.1514–5.5 04 1946.Google Scholar

23. ibid. col.1516.

24. Hansard, H. C. vol.421, col.2259.Google Scholar

25. It is to be noted that Italian implementing legislation prohibits surrender where “the fact for which surrender is requested is not covered as a criminal offence by Italian law.” Rules on the Cooperation with the International Tribunal for the Former Yugoslavia. Decree of 28 December 1993. n.544, converted with modifications into Law of 14 February 1994, n. 120.

26. The Prosecutor v. Dusko Tadic aka “Dule”. Decision on the Defence motion for interlocutory appeal on jurisdiction. International Tribunal, Appeals Chamber. Case No.IT–94–l–ART72,7 Oct. 1995: (1996) 35 ILM 32.