Reflections on the exercise of prosecutorial discretion in international criminal law

Journal of International Criminal Justice

Volumn 3, Issue 1, 2005, Pages 162-186

  Côté, Luc ^a  

^a Special Court for Sierra Leone ^*  (Sierra Leone)

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EID: 26444488180     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/3.1.162     Document Type: Review

References (125)

1. See D. D. Ntanda Nsereko, 'Prosecutorial Discretion Before National Courts and International Tribunals', 3 JICJ (2005) 124-144
2. M. R. Brubacher, 'Prosecutorial Discretion within the International Criminal Court', 2 JICJ (2004) 71-95
3. A. Marston Danner, 'Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court', 97 American Journal of International Law (AJIL) (2003) 510.
4. 'The ability of the ICC Prosecutor to initiate investigations proprio motu was the most controversial aspect of the Court's trigger mechanism and was one of the main political/legal issues that had to be resolved before the Statute could be assured of adoption. Both opponents and proponents of the Prosecutor's proprio motu powers - and the chasm was very wide - agreed that their inclusion or absence would fundamentally affect the Court's structure and functioning', Bergsmo and Pejic, in O. Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 360.
5. 'Let me state unequivocally at the outset that there is more to fear from an impotent than from an overreaching Prosecutor. It is trite to recognise that an institution should not be constructed on the assumption that it will be run by incompetent people, acting in bad faith for improper purposes', Statement by Justice Louise Arbour to the Preparatory Committee on the Establishment of an International Criminal Court: 8 December 1997, ICTY Yearbook 1997, 229.
6. Amnesty International, 'The International Criminal Court: 16 fundamental principles for a just, fair and effective international criminal court', 1 May 1998, doc: IOR 40/012/1998. Also: 'The most important way to ensure that the prosecutor will be independent is to provide that the prosecutor has the power on his or her own initiative to initiate investigations and seek the approval of the appropriate judicial chamber of the court to begin a prosecution, without interference by any political body'., Amnesty International, The International Criminal Court: Making the Right Choices - Part II, 9, IOR 40/01/97.
7. 'Although participants in the Preparatory Committees came from diverse legal backgrounds and with an even greater variety of specific interests, their approaches generally fell into one of two main categories: Liberalists and realists', Brubacher, supra note 1, at 72.
8. R. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 31.
9. See Danner, supra note 1, at 518,
10. quoting the definition from Hart and Sacks, The Legal Process: Basic Problems in the Making and Application of the Law (William N Eskridge Jr and Phillip P. Frickey eds, 1994), 144.
11. See Nsereko, supra note 1, at 124.
12. 'Public interest is that which conduces to the general welfare of the community as a whole. Public interest, more than anything else, is the most important consideration that the prosecutor must take into account in deciding whether to prosecute or not to prosecute.... The prosecutor must evaluate both the short-term and long-term effects on the public interest of a decision to prosecute or not to prosecute. In doing so the prosecutor must undertake a balancing exercise between the various competing interests. Such an exercise is difficult and requires great wisdom'., Nsereko supra note 1, section on Public Interest.
13. See Brubacher, supra note 1, section on International Public Policy Considerations, at 80-85.
14. See supra note 1.
15. See the 'Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone', signed on 16 January 2002 in Freetown, Sierra Leone, available online at http://www.sc-sl.org/scsl-agreement.html (visited January 2005).
16. 'Discretion entails both risks and benefits. By promoting case-sensitive decision making, it can protect liberty, but it can also lead to unjustified discrimination.... Discretion also forces prosecutors to make decisions that cumulatively affect the criminal justice system as a whole', Danner, supra note 1, at 518.
17. See R. Goldstone, 'Le Tribunal des tragédies', 67 Politique Internationale (Spring, 1995) 291, comments recorded by Florence Hartmann.
18. See Nsereko, supra note 1, at 127.
19. Article 18(1) ICTYSt. and Art. 17(1) ICTRSt.: 'The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organisations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed'.
20. Nsereko, supra note 1, at 136 concluded that the peremptory language used in Art. 18(4) ICTYSt. and Art. 17(4) ICTRSt. ('shall prepare an indictment') suggests a duty and not a discretion on the part of the Prosecutors to indict.
21. See Delalić, Mucić, Delić and Landžo (hereinafter 'Čelebići case') (IT-96-21-A), Appeal Chamber, 20 February 2001, 6§02: 'In the present context, indeed in many criminal justice systems, the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction. It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted. It is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments'.
22. Article 15 ICTRSt. and Art. 16 ICTYSt.
23. V. Morris and M. Scharf, The International Criminal Tribunal for Rwanda, Vols 1 and 2 (New York: Transnational Publishers, 1998), 381: 'The successful outcome of the work of the Yugoslavia Tribunal is in many respects dependent upon the judgement and the experience of a single individual - the Prosecutor'.
24. '...as international criminal courts and tribunals have historically been established in the wake of widespread armed conflict, these courts have jurisdiction over, potentially, thousands of cases. This makes the trial of every potential offence a practical impossibility and prosecutors must, as a matter of necessity, be extremely selective in deciding which cases to investigate in order not to overload the system'.; see Brubacher, supra note 1, at 75.
25. L. Arbour, 'Progress and Challenges in International Criminal Justice', 21 Fordham International Law Journal (1997) 531.
26. Čelebići case, supra note 18, at §602.
27. Ibid.
28. see also Decision on the Extremely Urgent Motion by the Defence for Orders to Review and/or Nullify the Arrest and Provisional Detention of the Suspect, Barayagwiza (ICTR-97-19-I), Trial Chamber II, 17 November 1998, p. 6: 'The Prosecutor may exercise her valid discretion regarding persons against whom she wishes to proceed'.
29. Preliminary Decision, Čelebići (IT-96-19-I) Trial Chamber II, 30 September 1996, p. 2: 'The trial Chamber: FINDS that the Rules contemplate that, before issuing a request for deferral, the Trial Chamber must be "seized of a proposal" to do so by the Prosecutor; FINDS further that an order requiring the Prosecution to submit to the Trial Chamber a proposal for deferral is inappropriate and not within the authority of the Trial Chamber'.
30. Decision on the Prosecutor's Motion to Withdraw the Indictment, Ntuyahaga (ICTR-98-40-T), Trial Chamber 1, 18 March 1999:'... she has the right, at any stage of the proceedings, to apply for leave to withdraw an indictment in accordance with the provisions of Rule 51 (A) of the Rules'.
31. Ibid.:'... it is the sole duty of the Prosecutor to devise the prosecution strategy and therefore to decide, even before instituting any proceedings, whether such action serves the interests of her mandate as Prosecutor'.
32. Article 19(1) ICTYSt. and Art. 18(1) ICTRSt.
33. Twice, defence lawyers requested that the judges of the ICTR order the prosecution to open an investigation into the President Habyarimana plane crash which had a triggering effect on the beginning of the genocide. See Defence Motion Seeking Supplementary Investigations, Kabiligis (ICTR-97-34-I) Trial Chamber III, 1 June 2000, 2§0: 'Moreover, Defence Counsel failed to establish a legal basis on which the Trial Chamber could order supplementary investigations by the Prosecutor in this case. The issue is one solely for the discretion of the Prosecutor'. See also Decision on the Defence Motion for an order to the Prosecutor to Investigate the Circumstances of the Crash of President Habyarimana's Plane, Nzirorera (ICTR-97-20-I) Trial Chamber II, 2 June 2000.
34. M. Bergsmo, C. Cissé and C. Staker, 'The Prosecutors of the International Tribunals: The Cases of the Nuremberg and Tokyo Tribunals, the ICTY and ICTR, and the ICC Compared', in L. Arbour, A. Eser, K. Ambos and A. Sander (eds), The Prosecutor of a Permanent International Criminal Court (Freiburg im Breisgau: Iuscrim, 2000), 135.
35. Decision to Withdraw Indictment, Kupreškić et al. (IT-95-16-PT), Kordić et al., (IT-95-14/2-PT), 19 December 1997.
36. Order granting leave for withdrawal of charges against Nikica Jankić, Dragan Kondić, Goran Lajić, Dragomir Saponja and Nedjeljko Timarac, Sikirica and Others (IT-95-8-PT), 5 May 1998: 'CONSIDERING the resources available to the Office of the Prosecutor and the requirement under Article 20 of the Statute that all trials be fair and expeditious'.
37. See Čelebići case, supra note 18, at §597.
38. See Ntuyahaga, supra note 26.
39. For the ICTY: 'In exercising this discretion, the Prosecutor may have regard to a wide range of legitimate criteria, including the gravity of the crimes in question, the strength of the evidence, the effective allocation of resources within the Office of the Prosecutor, the relationship of the case to the overall prosecution strategy, and other similar considerations'., Prosecution Response, Respondent's Brief of the Prosecution, Čelebići case, 17 September 1999, §15.5.
40. For the ICTR:'... à l'heure actuelle, nous avons identifié 200 suspects. Il faudra faire des choix, ce qui est frustrant et difficile. Nous essaierons de prendre en compte plusieurs paramètres'., C. Del Ponte, 'Balkans-Rwanda: La fin de l'impunité', 90 Politique Internationale (2000-2001), comments recorded by A. Franco and B. Adès.
41. As an example, a crime may have a specific political and historical importance taken into consideration by the Prosecutor: 'That indictment is particularly significant, we think, because Omarska is the first camp in Bosnia that international journalists were permitted to see and film, in August 1992'., M. Schrag, 'The Yugoslav Crimes Tribunal: A Prosecutor's View', 6 Duke Journal of Comparative & International Law (1995) 193. The same concerns were raised regarding the role played by the media in the Rwandan Genocide: 'La responsabilité des médias, notamment de la RTLM, est très importante dans le génocide rwandais',
42. C. Del Ponte, ibid.
43. For Tadić: 'In the fall of 1994, mindful of the importance of our being able to present evidence as soon as possible in a public trial, we asked the Tribunal judges to request that German prosecution defer to our investigation'., M. Schrag, supra note 36, at 192. Jean Paul Akayesu was arrested by the Zambian authorities following a SC Resolution (S/RES/ 978, 27 February 1995) requesting states 'to arrest and detain persons... against whom there is sufficient evidence of responsibility for acts of violence within the jurisdiction of the ICTR'. The Prosecutor was taken by surprise when he received a request for assistance by Zambia in late 1995, while his office was still not fully operational. He nevertheless decided to follow up on the Zambian demand and requested the deferral of Akayesu and others much more to encourage other African states to collaborate with the ICTR than for the relative importance of the suspects in the Rwandan genocide. Two other persons arrested by the Zambian authorities were not requested by the Prosecutor and were released without charge.
44. Although Tadić was the first person tried by the ICTY, the first person indicted was Dragan Nikolić (ICTY-IT-94-2-I) on 4 November 1994.
45. R. Goldstone, For Humanity: Reflections of a War Crimes Investigator (New Haven: Yale University Press, 2000), 105.
46. G. J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000), 230-244: 'Goldstone staffers say they hurried to have the second Karadzić-Mladić indictment ready for Dayton.... Was this Goldstone's way of reminding Dayton's negotiators of The Hague? "Not at all" Goldstone said,... "it was really happenstance, we've issued indictments when they've been ready". But Blewitt, Goldstone's deputy prosecutor, has said that the Dayton indictments were timed to remind negotiators of the war criminals and to make it harder to dispose of the tribunal'.
47. See 'The Tribunal's Progress', by R. Goldstone in Johannesburg, 7-12 May 2001, Institute for War and Peace Reporting, Tribunal update, no. 220, available online at http://www.iwpr.net/index.pl?archive/tri/ tri_220_2_eng.txt (visited January 2005).
48. See Brubacher, supra note 1, at 74.
49. See also S. Zappalà, Human Rights in International Criminal Proceedings (Oxford: Oxford University Press, 2003), 43: 'The unique nature of international crimes inevitably highlights the tormented relationship between politics and criminal justice. The interplay between criminal justice and politics is naturally well known even at the national level. It is, however, more evident in international criminal proceedings, given the classes of crimes within the jurisdiction of international Tribunals and the Court'.
50. See Art. 2.1 of the International Association of Prosecutors Standards: 'The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference'.
51. In May 1998, the ICC Prosecutor, in collaboration with the Max-Planck Institute for Foreign and International Criminal Law, set up an international workshop on the subject of the independence and responsibilities of the Prosecutor of an international criminal court. This workshop, comprising Prosecutors working in the ICC and national Prosecutors from about 30 different countries gathered in Freiburg im Breisgau in Germany, issued a unanimous statement, entitled 'Freiburg Declaration on the Position of the Prosecutor of a Permanent International Court'. Article 3 states that 'the prosecutor should exercise his or her functions as transparently as possible, subject to the requirements of confidentiality, giving reasoned public explanations for decisions where appropriate', L. Arbour et al., The Prosecutor, supra note 30, at 668.
52. The ICTR and ICTY RPE stipulate that the Prosecutor may adopt regulations 'consistent with the Statute and the Rules'; see Art. 37(A) of both the ICTR and ICTY Rules.
53. All the more so since many of these criteria are set forth in an internal document, entitled 'Office of the Prosecutor: Charging and Indictment Guidelines'.
54. See Reg. No. 1/1994, as amended on 17 May 1995: 'Prosecutor's Policy on Nolle Prosequi of Accomplices', published in ICTY Annual Reports.
55. Article 17 of the UN Guidelines on the Role of Prosecutors, Report of the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders. UN doc. A/CONF.144/28 1990, at 117.
56. Nsereko, supra note 1, at 143.
57. See also Danner, supra note 1, at 541-542, where the author refers to numerous countries that have adopted such guidelines.
58. H. Kelsen, Théorie pure du droit (1962) (Paris: LGDJ, 1999), 336.
59. It is possible that prosecutorial discretion may be limited under customary international law, as illustrated by the case of Simić, where the Chamber refused to exercise its discretionary power to subpoena an employee of the International Committee of the Red Cross to hear his testimony, stating that: 'It is trite that the International Tribunal is bound by customary international law, not least because under Article 1 of its Statute it applies international humanitarian law, which consists of both customary and conventional rules, and its jurisprudence is consistent with that approach. It follows, therefore, that the International Tribunal's Rules may be affected by customary international law, and that there may be instances where the discretionary power to admit any relevant evidence with probative value may not be exercised where the admission of such evidence is prohibited by a rule of customary international law'. (author's emphasis). Decision on the prosecution motion under Rule 73 for a ruling concerning the testimony of a witness, Simić et al. (IT-95-9-PT), Trial Chamber, 27 July 1999, §42.
60. Čelebići case, supra note 18, at §604.
61. Čelebići case, supra note 18.
62. Čelebići case, Brief of Appellant, Esad Landžo (herinafter Landžo Brief), on Appeal Against Conviction and Sentence, 2 July 1999, at 13.
63. Čelebići case, supra note 18, at §596.
64. Landžo Brief, supra note 54, at 17.
65. Landžo Brief, supra note 54, at 13-14.
66. 'In the present context, indeed in many criminal justice systems, the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction. It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted. It is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments'., Čelebići case, supra note 18, at §602.
67. Ibid.
68. Ibid., at §603. See also Art. 15(2) ICTR St.
69. Ibid., at §605.
70. 'The burden on the appealing party is thus a heavy one: He or she must show that a selection was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification', Čelebići case, supra note 18, Prosecution Response Respondent's Brief of the Prosecution, 17 September 1999, at §15.10.
71. Supra note 58, at §614.
72. Ibid.
73. R. G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), 40.
74. e Partie', in A. Pellet, H. Ascensio, E. Decaux (eds), Droit International Pénal (Paris: Pedone, 2000), 624.
75. See R. Goldstone, 'The United Nations' War Crimes Tribunals: An Assessment', 12 Connecticut Journal of International Law (1997) 227: 'Individualized guilt serves the very important purpose of preventing a collective guilt syndrome. By diminishing the tendency to ostracize a specific ethnic or national group and the need for revenge, it contributes "to the process of national reconciliation"'.
76. Bass, supra note 40, at 300-301.
77. See quotation at the beginning of this section, supra note 58.
78. Čelebići case, supra note 18, at §612 and Landžo Brief
79. supra note 54, at 17.
80. Emphasis added. Čelebići case, supra note 18, Prosecution Response Respondent's Brief of the Prosecution, 17 September 1999, §15.13.
81. Bass, supra note 40, at 244.
82. 'For the moment, it appears that the OTP is concentrating exclusively on crimes committed by the former government of Rwanda and its associates. Amnesty International is concerned that there are no indictments arising out of the alleged crimes committed by the RPF and none apparently imminent. Nevertheless justice must be impartial; it must be done and seen to be done for all, regardless of who the victims or perpetrators are. True reconciliation in Rwanda must involve showing that the rule of law does not discriminate for or against anyone. The Tribunal's work should contribute to this process.', International Criminal Tribunal for Rwanda: Trials and Tribulations, Report of Amnesty International, London, April 1998, IOR 40/03/98, at 16 (hereafter Amnesty International Report: Trials and Tribulations). Concerning the crimes committed by the RPF,
83. see A. Des Forges, Leave None to Tell the Story: Genocide in Rwanda (New York and Paris: Human Rights Watch & International Federation of Human Rights, 1999), 13.
84. L. Arbour, 'Le Tribunal pénal international est devenu un processus irréversible', Le Monde, comments recorded by R. Ourdan and C. Tréan, updated on 14 September 1999.
85. 'The other is the impression given - not only to those responsible for these crimes within the RPF but also to the broader public - that the Tribunal is only interested in judging one group of perpetrators. It is nevertheless essential that it fulfils its mandate with respect to all crimes, maintains its independence and delivers justice to all.', Amnesty International Report: Trials and Tribulations, supra note 72, at 16-17.
86. D. Van Zyl Smit and E. Steyn, 'Prosecuting Authority in the New South Africa', CIJL Yearbook, Vol. VIII, January 2000, at 137.
87. 'The two most powerful realist criticisms of war crimes trials are that such efforts will perpetuate a war, or destabilize postwar efforts to build a secure peace', Bass, supra note 40, at 285.
88. R. G. Teitel, supra note 65, at 51.
89. Article 53 of the ICC. See Brubacher, supra note 1, at 81: '... the term "in the interests of justice" also requires the Prosecutor to take account of the broader interests of the international community, including the potential political ramifications of an investigation on the political environment of the state over which he is exercising jurisdiction.'
90. 'En effet déterminer si une enquête sert ou non les intérêts de la justice, compte tenu des intérêts des victimes et/ou de la gravité du crime, pourra le conduire à faire un choix entre la nécessité d'ouvrir une enquête et celle de ne pas compromettre des négociations sur le point d'aboutir à la signature d'un accord de paix', W. Bourdon, La Cour pénale internationale (Paris: Seuil, 2000), 165.
91. See S. Zappalà, supra note 42, at 38, where the author, talking about the appropriateness of judicial supervision in the pre-trial phase in the ICC, adds: 'This element was not necessary for the ad hoc Tribunals because in that case the Security Council had already made the evaluation as to the political impact of criminal investigations and prosecutions, when the decisions to create the Tribunals were taken.'
92. See Arts 13 and 16 ICC St. See Brubacher, supra note 1, at 87-88.
93. 'C'est pourquoi nous avons à juger les responsables quels qu'ils soient et quelles que soient les conséquences politiques qui pourraient s'ensuivre. Ces éventuelles conséquences ne sont pas notre souci', R. Goldstone, 'Le Tribunal des tragédies', supra note 14, at 291.
94. 'I don't think it's appropriate for politicians - before or after the fact - to reflect on whether they think the indictment came at good or bad time; whether it's helpful to the peace process. This is a legal, judicial process. The appropriate course of action is for politicians to take this indictment into account. It was not for me to take their efforts into account in deciding whether to bring an indictment, and at what particular time', Institute for War and Peace Reporting, Tribunal update, no. 128, 5 June 1999, available online at http://www.iwpr.net/ index.pl?archive/tri_128_1_eng.txt (visited January 2005)
95. 'Lord David Owen, mediator for the European Union, admits as much. "The conclusion, that they could easily draw, was that it would not be very wise to indict the heads of state if we wanted to arrive at a negotiated peace between them and with them. I believe that Goldstone and (his successor Louise) Arbour had this pragmatic attitude, this judgment of good sense, and the tribunal only indicted Milošević when the prosecutor understood that he was no longer an obstacle, politically. Because after Kosovo there were no more means to negotiate with Milosevic." Discussions with Pierre Hazan, 8 November 1999, cited in Hazan, Justice in a Time of War (College Station: Texas A&M University Press, 2004), 61-62.
96. See also Bass, supra note 45, p. 244: 'Marginalizing Karadžić and Mladić might help peacemaking efforts. "Goldstone really pushed on Karadžić and Mladić, to the point of rebellion," remembers a member of Goldstone's staff. "He wanted it sooner rather than later".'
97. Press conference on 27 May 1999, cited in Bass, supra note 40, at 273.
98. See the Press Release of 5 June 2003 from the Prosecutor, David Crane, available online at http://www.sc-sl.org/Press/prosecutor-060503.html, (visited Janaury 2005) who stated: 'Regarding the timing of our announcement, we reiterate our legal and moral obligations for unsealing the indictment. He has been indicted based on the evidence, and that indictment has been made public because of his travels. My job is to investigate and prosecute, but I can only fulfill that mandate when the international community has the political will to make arrests.' As the Chief Prosecutor of the ICTY, Louise Arbour said at the time of the indictment of Slobodan Milosevic: 'I don't think it's appropriate for politicians - before and after the fact - to reflect on whether they think the indictment came at a good or bad time; whether it's helpful to a peace process. This is a legal, judicial process. The appropriate course of action is for politicians to take this indictment into account. It was not for me to take their efforts into account in deciding whether to bring an indictment, and at what particular time.'
99. Statement by Justice Louise Arbour, Prosecutor ICTY and ICTR, Press Release, The Hague, 13 May 1999, JL/PIU/401-E, as quoted in P. Kovacs, 'Intervention armée des forces de l' OTAN au Kosovo', 837 International Review of the Red Cross, p. 103-128, footnote 61, available on http://www.icrc.org/web/fre/sitefre0.nsf/html/5FZEXP (visited January 2005).
100. UN Press Release, 2 June 2000.
101. See, e.g. 'Symposium: The International Legal Fallout from Kosovo', 12 European Journal of International Law (2001) 331-536
102. 'Editorial Comments: NATO's Kosovo Intervention', 93 AJIL (1999) 824-863.
103. 'Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia', 13 June 2000, 39 ILM (2000), 1257 (hereafter 'Final Report').
104. In a report published in June 2000, 'Dommages collatéraux on homicides illégaux? Violation du droit de la guerre par l'OTAN lors de l'opération Force alliée', Amnesty International looks at many aspects of this air campaign, among which are the rules of engagement and other operational aspects, in the light of international humanitarian law. Amnesty International, London, EUR 70/18/00, available online at http://www.amnesty.org/ailib/intcam/kosovo/docs/nato_all.pdf. (visited January 2005).
105. Human Rights Watch, 'Civilian Deaths in the NATO Air Campaign', February 2000, available online at http://www.hrw.org/reports/2000/nato/ (visited January 2005).
106. 'Final Report', supra note 90, at §3.
107. See Art. 2 ICTR RPE and Art. 2 ICTY RPE.
108. 'Final Report', supra note 90, at §5.
109. 'Final Report', supra note 90, at §91.
110. 'Final Report', supra note 90, at §90 in fine.
111. N. Ronzitti, 'Is the non liquet of the Final Report by the Committee Established to Review the NATO Bombing Campaign Against Federal Republic of Yugoslavia acceptable?', 82 Revue Internationale de la Croix-Rouge (2000) 1021.
112. 'Final Report', supra note 90, at §90 in principio.
113. An internal and confidential document of the ICRC in the possession of Hazan, supra note 84, is highly critical on this subject. Paraphrasing that document, Hazan says: 'In other words, the commission (set by the ICTY Prosecutor) starts with the principle that the declarations of representatives of NATO and its member states reflect reality, without making any effort (so far as one can tell from the report, in any case) to verify these declarations by other sources or by investigation in the field. It is all the more strange that the commission recognizes that it has received from NATO only general answers to its questions and no information on particular incidents. We may reasonably ask the question if this a priori favoritism to one of the parties of the conflict is compatible with the Prosecutor's impartiality'.
114. 'Asked by the London Sunday Observer whether she would be prepared to press charges if the inquiry into NATO bombing turned up incriminating evidence, Prosecutor Carla Del Ponte responded: "If I am not willing to do that, I am not in the right place: I must give up the mission!" In the way it was interpreted by the world media, the statement triggered quite a storm between The Hague, NATO HQ in Brussels and the US administration in Washington. In order to put an end to such speculations and calm the resultant storm caused in the midst of the Millennium holidays, Del Ponte issued the following statement: "NATO is not under investigation by the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia. There is no formal inquiry into the actions of NATO during the conflict in Kosovo."', Institute for War and Peace Reporting, Tribunal update, No. 158, 27-31 December 1999, available online at http://www.iwpr.net/ index.pl?/archive/tri/tri_158_2_eng.txt (visited January 2005).
115. UN Press Release, 2 June 2000.
116. C. Del Ponte, 'Balkans-Rwanda: La fin de l'impunité', supra note 35, at 316-317.
117. Gidron and Cordone, 'Faut-il juger l'OTAN', Le Monde Diplomatique (July 2000), at 1. The internal document of the ICRC, in original French, quoted supra note 100, concludes as following: 'On l'aura compris, ni le TPI, ni la justice internationale en général, ni le droit international humanitaire ne sortent grandis du rapport du comité établi par le Procureur du Tribunal Pénal pour l'ex-Yougoslavie. Le clair parti-pris dans l'établissement des faits, les approximations on erreurs juridiques en font un document peu crédible et indéfendable. ...Une telle différence dans l'approche suivant que les crimes de guerres allégués soient imputables à la RFY ou à l'OTAN est effectivement choquante', at 13.
118. The first paragraph of Art. 1 SCSLSt. reads as follows: 'The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.'
119. 'On the 14 June 2001, the UN Secretariat presented to the group of interested States revised budget estimates amounting approximately to $57 million for the first three years of operation of the Court'; see letter dated 12 July 2001 from Secretary-General addressed to President of the Security Council, S/2001/693.
120. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000, S/2000/915, §30.
121. Letter dated 22 December 2000 from the President of the Security Council to the Secretary-General, S/2000/1234, §1.
122. Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of Accused Fofana, SCSL Trial Chamber (SCSL-2004-14-PT), 3 March 2004.
123. Supra, note 109, §27.
124. 'Completion strategy of the International Criminal Tribunal for Rwanda', Annex to Letter dated 30 April 2004 from the President of the ICTR addressed to the President of the Security Council, 3 May 2004, S/2004/ 341, §14.
125. Under Rule 2 ICTY RPE: The Bureau is a body composed of the President, the Vice-President and the Presiding Judges of the Trial Chambers.