Mandatory Compliance Powers vis-à-vis States by the Ad Hoc Tribunals and the International Criminal Court: A Comparative Analysis

Leiden Journal of International Law

Volumn 12, Issue 4, 1999, Pages 969-999

  Henquet, Thomas ^a  

^a International Criminal Tribunal for the Former Yugoslavia   (Netherlands)

Author keywords

International Criminal Court; International Criminal Tribunals for the Former Yugoslavia and Rwanda; judicial assistance; state co operation

Indexed keywords

EID: 84961586563     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156599000503     Document Type: Article

References (98)

1. See Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement), signed in London, August 1945, 82 UNTS 279, 59 Stat. 1544, EAS No. 472 (entered into force, 8 August 1945); Charter of the International Military Tribunal (annexed to the London Agreement).
2. See Charter of the Intemational Military Tribunal for the Far East (the Tokyo Charter), Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, charter dated 19 January 1946, amended charter dated 26 April 1946, TIAS 1589, 4 Bevans 20.
3. The Intemational Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by the UN Security Council in resolution 827 of 25 May 1993, see UN Doc. S/RES/827.
4. publicly indicted by the ICTY are presumed to remain on the territory of the former Yugoslavia.
5. The Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 (1998).
6. Id., Preamble, para. 4
7. See ICTY Report 1998, The Rome Statute of the International Criminal Court note 6, para. 241.
8. See UN Doc. S/RES/827 (1993), paras. 4-6; respectively, UN Doc. S/RES/955 (1994), paras. 5-7. Founded on Arts. 39 and 41 of the UN Charter, the Tribunals were established as subsidiary organs of the Security Council, pursuant to Art. 29 of the Charter. The legality of the basis of the ICTY was confirmed by the Tribunals’ Appeals Chamber. See Prosecutor v. DuSko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, A.Ch., 2 October 1995.
9. This obligation is further underscored by Arts. 2(5), 48 and 49 of the UN Charter. It has been argued that Art. 2(6) of the UN Charter obliges non-UN member states, to comply with Security Council resolution 827. See Morris & Scharf, UN Doc. S/RES/827 note 3, at 311-312. In this respect, Switzerland's enactment of implementing legislation for co-operation with the Tribunals has been explained by the Tribunals’ Appeals Chamber as an express written acceptation of the obligations under the UN Charter \is-a-vis the Tribunals, in accordance with Art. 35 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, 8 ILM 679 (1996), entered into force on 27 January 1980). See Appeals Chamber Subpoena Decision, UN Doc. S/RES/827 note 6, para. 26.
10. See, e.g., Security Council resolution 713 of 25 September 1991, UN Doc. S/RES/713 (1991) and resolution 757 of 30 May 1992, UN Doc. S/RES/757 (1992), respectively.
11. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, 3 May 1993 and corrigendum S/25704/Corr. 1, 30 July 1993, para. 23.
12. 7c., para. 125.
13. The obligation for states to co-operate with the Tribunal relates to the investigation and prosecution stages. On the issue of voluntary state co-operation in the enforcement of sentences pursuant to Art. 27 of the Statute, see D. Tolbert, The Mcernational Tribunal for the Former Yugoslavia and the Enforcement of Sentences, /1 LJIL 655 (1998). Art. 29 of the ICTY Statute corresponds to Art. 28 of the ICTR Statute. Hereinafter reference will be made consistently to the ICTY Statute and the ICTY Rules. However, since the relevant provisions in the Statutes and the Rules are idendcal, the following is also applicable mutatis mutandis Xo the ICTR
14. According to Art. 11 of the Statute, the Tribunal consists of the Chambers, the Prosecutor and the Registry.
15. This was reiterated, for example, by the President of the ICTY in respect of information in possession of states pertaining to alleged crimes committed in Kosovo, See ICTY Press Release, JL/PIU/394-E, 8 April 1999; “President McDonald Writes to NATO Ministers of Foreign Affairs on Situation in Kosovo.” See also ICTY Press Release CC/PIU/391-E, 31 March 1999: “Statement by the Prosecutor.”
16. Cf. Morris & Scharf, This was reiterated, for example, by the President of the ICTY in respect of information in possession of states pertaining to alleged crimes committed in Kosovo note 3, at 312. For instance, such a legal basis may be required to make sensitive military intelligence information relevant to criminal investigations available to the Prosecutor.
17. See Appeals Chamber Subpoena Decision, This was reiterated, for example, by the President of the ICTY in respect of information in possession of states pertaining to alleged crimes committed in Kosovo note 3 note 6, para. 31. See also Prosecutor v. Radislav Krstid, Binding Order to the Republika Srpska for the Production of Docu/nents, Case No. lT-98-33-PT, T.C. I, 12 March 1999.
18. For a comprehensive discussion of the various relevant decisions in the case, see R. Wedgewood, International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic, 11 LJIL 635 (1998).
19. See Prosecutor v. Tihomir Blagkic, Subpoena Duces Tecum, Case No. IT-95-14-T (s/c). Judge Gabrielle Kirk McDonald, 15 January 1997.
20. See Prosecutor v. Tihomir BlaSkic, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, Case No. 1T-95-14-PT, T,C. II, 18 July 1997.
21. The Judgment also deals with mandatory powers Vis-a-vis individuals in respect of the production of evidence.
22. A judicial tribunal may also have inherent powers. See D. Sarooshi, The Powers of the United Nations Internationa! Criminal Tribunals, in J. Frowein & R. Wolfrum (Eds.), Max Planck Yearbook of United Nations Law 141, at 144 (1998).
23. See Trial Chamber Subpoena Decision, A judicial tribunal may also have inherent powers. note 26, para. 25.
24. See Appeals Chamber Subpoena Decision, Trial Chamber Subpoena Decision note 6, paras. 26-31.
25. para. 26.
26. Id.
27. Id., Disposition, para.l.
28. See Trial Chamber Subpoena Decision, Id. note 26, paras. 70-86.
29. The distinction between a ‘horizontal’ co-operation relation, such as the one operating between states, and a ‘vertical’ relation, as between the Tribunal and states, was expressly upheld by the Appeals Chamber. See Appeals Chamber Subpoena Decision, Trial Chamber Subpoena Decision note 6, para, 47.
30. See Trial Chamber Subpoena Decision, The distinction between a ‘horizontal’ co-operation relation, such as the one operating between states, and a ‘vertical’ relation, as between the Tribunal and states, was expressly upheld by the Appeals Chamber. note 26, para. 78.
31. Id., para. 81, referring to the Tadic Jurisdiction Decision, Trial Chamber Subpoena Decision note 12, para. 56.
32. Id., para. 84, footnote 136, referring to Art. 27 of the Vienna Convention. Accordingly, ICTY Rule 58 reiterates that the obligation to surrender an accused and transfer a witness to the Tribunal takes precedence over any legal impediment existing under national law or extradition treaties.
33. The President of the Tribunal has repeatedly so advised the authorities of the Federal Republic of Yugoslavia. See ICTY Report 1998, 27 of the Vienna Convention. note 6, para. 233.
34. See Trial Chamber Subpoena Decision, The President of the Tribunal has repeatedly so advised the authorities of the Federal Republic of Yugoslavia. note 26, para. 30.
35. See Sarooshi, Trial Chamber Subpoena Decision note 28, at 153.
36. See Appeals Chamber Subpoena Decision, Trial Chamber Subpoena Decision note 28 note 6, para. 25. For an opposing view, see Wedgewood, Trial Chamber Subpoena Decision note 28 note 23, para. 4.3. See also Prosecutor v. Tihomir BlaSkic, Amicus Curiae Brief Submitted by the Government of the Kingdom of The Netherlands to the International Criminal Tribunal for the Former Yugoslavia, Case No. 1T-95-14-PT, 12 September 1997, para. 17.
37. See Appeals Chamber Subpoena Decision, Appeals Chamber Subpoena Decision note 6, para. 20, and Trial Chamber Subpoena Decision, Appeals Chamber Subpoena Decision note 26, para. 62.
38. See Appeals Chamber Subpoena Decision, Appeals Chamber Subpoena Decision note 6, para. 21. Overruling the Trial Chamber, the Appeals Chamber held that according to the ‘act of state doctrine’, the Tribunal cannot subpoena state officials. See Appeals Chamber Subpoena Decision, Appeals Chamber Subpoena Decision note 6, para. 38. Indeed, the Appeals Chamber found that these officials cannot be the addressees of any binding order by the Tribunal. Unlike in the case of Art. 29 with respect to binding orders to states, the Statute does not provide for a derogation of the customary international law protection of the internal organisation of a sovereign state. See Appeals Chamber Subpoena Decision, Appeals Chamber Subpoena Decision note 6, paras. 39-45. For a convincing opposing view, see Wedgewood, Appeals Chamber Subpoena Decision note 23, para. 4.4.
39. Northern Cameroon (Cameroon v. United Kingdom), Judgment of 2 December 1963, 1963 ICJ Rep.
40. Nuclear Tests (Australia v. France), Judgment of 20 December 1974, 1974 ICJ Rep. 253. Nuclear Tests (New Zealand v. France), Judgment of 20 December 1974, 1974 ICJ Rep. 457.
41. See Appeals Chamber Subpoena Decision, Nuclear Tests note 6, para. 33.
42. Id., paras. 33 and 36.
43. However, Gallant suggests that the Prosecutor's powers under ICTY Rule 39 also could be considered binding requests. See K. Gallant, Securing the Presence of Defendants Before the International Tribunal for the Former Yugoslavia: Breaking with Extradition, 5 Criminal Law Forum 557, at 574 (1994)
44. See Secretary-General's Report, That the Tribunal is lo be considered bound by international human rights law can for instance be argued on the basis of Art. note 15, paras. 18-30.
45. Efforts by Uie International Law Commission and the UN General Assembly in respect of the establishment of an international criminal court date back to as early as the beginning of the 1950s. For an overview, see, e.g., B, Ferencz, An International Criminal Code and Court: Where They Stand and Where They're Going, 30 Columbia Journal of Transnational Law 375 (1992).
46. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GA 50'*’ Sess,, Supp, No, 22, UN Doc, A/50/22 (1995)
47. See Report of the Preparatory Committee on the Establishment of an Inteniational Criminal Court, UN Doc. AyConf. 183/2/Add. 1 (1998).
48. The Rome Statute was adopted by an unrecorded vote, requested by the United States, of 120 in favour, 7 against and 21 abstentions. Annexed to the Statute's Final Act is a resolution establishing a Preparatory Commission tasked with ensuring the coming into operation of the Court and making the necessary practical arrangements, including drafting the Court's Rules of Procedure and Evidence.
49. Cf. Arts. 1, 2(1)(a) and 5 of the Vienna Convention. While the Vienna Convention as such is only binding on ratifying or acceding states, it may also provide an important indication of customary international law. See 1. Brownlie, Principles of Public Intemational law 608 (1998).
50. On 12 August 1999, 84 States had signed the treaty, while four had deposited their instruments of ratification. See the UN web-site at http://www.un.org/icc.
51. A high threshold was established for amending the Statute. Pursuant to Art. 121 of the ICC Statute, amendments need to be adopted by two-thirds of the members of the stales parties, while they only enter into force after ratification or accession by seven-eighths of the states parties (except for those dealing with the subject-matter jurisdiction).
52. Cf Art. 26. Art. 31 (1) of the Vienna Convention further provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
53. Cf. Art. 27 of the Vienna Convention. See also note 40, Cf Art.
54. E.g., European Convention on Extradition (ETS No. 24), opened for signature 13 December 1957, entered into force 18 April 1960 (ECEx), on 20 August 1999 ratified or acceded to by 38 states; and the European Convention on Mutual Assistance in Criminal Matters (ETS No. 30), opened for signature 20 April 1959, entered into force 12 June 1962 (ECMA), on 11 August 1999 ratified or acceded to by 35 states. See web-site of the Council of Europe at http://www, coe.fr/index, asp.
55. Notvt'ithstanding that, in contrast to the ICTY, the ICC's jurisdiction is ‘complementary’ to national jurisdictions: the Court may exercise its jurisdiction only if states are unwilling or unable to exercise theirs. See Art. 17 of the ICC Statute.
56. At the Rome Conference, the broader reference to “the Statute” was chosen over “this part” without much discussion. For a full record of observations at the Rome Conference such as those mentioned hereafter, see Coalition for an International Criminal Court, The Construction of Justice (forthcoming)-
57. Art. 51(2) of the ILC Draft Statute generally provided for ICC requests for co-operation and judicial assistance to which states that accepted tlie Court's jurisdiction, pursuant to Art. 51(3), should respond “without undue delay.”
58. See Trial Chamber Subpoena Decision, Art. note 26, para. 68.
59. Cf. Arts. 12 ECEx and 15(1) ECMA. See P. Gully-Hart, Loss of Time Through Formal and Procedural Requirements in International Co-operation, in A, Eser & O. Lagodney (Eds.), Principles and Procedures for a New Transnational Criminal Law 245, at 252 (1992).
60. Cf. Art. 33 of the ICTY Statute. However, there is no provision in the Statute or the Rules that precludes the simultaneous comnnunication of a translation into the language of the requested state.
61. C/Art. 23 ECEx and Art. 16 ECMA.
62. See UN Doc. A/CONF.183/C.1/WGIC/L.9, 29 June 1998.
63. C/Art. 22 ECEx.
64. See Morris & Scharf, C/Art. 22 ECEx. note 3, at 228.
65. The ‘like-minded’ group consisted of an increasing number of states supporting a set of key principles for an effective and independent Court.
66. ICTY Trial Chamber II specifically held that “there are no specified grounds on which a State may refuse to comply with an order or request from the International Tribunal, as there are in treaties or bi-or multilateral agreements.” See Trial Chamber Subpoena Decision, The ‘like-minded’ group consisted of an increasing number of states supporting a set of key principles for an effective and independent Court. note 26, para. 77; confirmed in Appeals Chamber Subpoena Decision, The ‘like-minded’ group consisted of an increasing number of states supporting a set of key principles for an effective and independent Court. note 6, para. 63.
67. In actual fact, according to implementing legislation, most states adhere to extradition procedures for co-operation with the Tribunals. See G. Sluiter, To Cooperate or Not to Cooperate?: The Case of the Failed Transfer of Ntakirutimana to the Rwanda Tribunal II LJIL 383, at 386-387 (1998).
68. See In the Matter of Surrender of Elizaphan Ntakirutimana. Misc. No. L-96-5, United States District Court for the Southern District of Texas, Laredo Division, 1997 US Dist. LEXIS 20714, December 17,1997, Decided, December 17,1997, Entered
69. See, generally, R. Kushen & K.J. Harris, Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda, 90 AJIL 513 (1996). Sluiter notes ICTY Trial Chamber Il's Decision on the Motion for Release by the Accused Slavko Dokmanovic, Case No. IT-95-13a-PT, T.C. II, 22 October 1997, para. 67, in which it is explained that since the Tribunal is not a state, it does not have the power to conclude extradition treaties. As a solution to the frustrated surrender from the US to the ICTR, Sluiter suggests that new legislation be enacted establishing a sui generis regime for surrender to the Tribunal. See Sluiter, the Matter of Surrender of Elizaphan Ntakirutimana. note 81, at 393.
70. However, on 6 August 1998, on a further application by the US Government the same District Court certified the surrender of the accused to the IC TR. See In the Matter of the Surrender of Elizaphan Ntakirutimana, Civil Action No. L-98-43, United States District Court for the Southern District of Texas, Laredo Division, 1998 US Dist. LEXIS 22173, August 6, 1998, Entered. The United States Court of Appeals for the Fifth Circuit subsequently affirmed an order of the District Court denying Ntakirutimana's petition for a writ of habeas corpus and lifting stay of his ‘extradition’. See Elizaphan Ntakirutimana, Petitioner-Appellant, versus Janet Reno, Attorney General of the United States; Madeleine Albright, Secretary of State of the United States; Juan Garza, Sheriff of Webb County, Texas, Respondents-Appellees, No. 98-41597, United States Court of Appeals for the Fifth Circuit, 1999 US App. LEXIS 18253, August 5, 1999, Decided.
71. See Sluiter, However note 81, at 384.
72. See ICTY Report 1997, However note 81 note 5, para. 189.
73. C/Arts. 6,2,3, 8and9ECEx.
74. See UN Doc. A/CONF/183/C.1/WGIC/L.18, 13 July 1998.
75. Cf. Art. 9(2) ICTY Statute and ICTY Rules 9 and 10.
76. C/Art. 17ECEX.
77. See A, Zimmermann, The Creation of a Permanent International Criminal Court, in J. Frowein & R. Wolfrum (Eds.), Max Planck Yearbook of United Nations Law 169, at 227 (1998).
78. See UN Doc. AyCONF.183/C.i/WGIC/L.17, 12 July 1998.
79. Cf. Art. 30(4) of the ICTY Statute.
80. See UN Doc. A/CONF.183/C.1/WG1C/L.8/Rev,l/Corr.2, 2 July 1998.
81. See Kushen & Harris, UN Doc. A/CONF.183/C.1/WG1C/L.8/Rev note 83, at 517.
82. However, both the District Court and the Court of Appeals later held to the contrary. See note 84, UN Doc. A/CONF.183/C.1/WG1C/L.8/Rev note 83.
83. Cf. Art. 14 ECEx.
84. Pursuant to ICTY Rute 50, the Prosecutor may add new charges to an indictment, subject to confirmation by a Judge. Such new charges may be based on expanded factual allegations. See, e.g., Prosecutor v. Milan KovaCevic, Decision Stating Reasons for Appeals Chamber's Order of 29 May 1998, Case. No. IT-97-24-AR73, A.Ch., 2 July 1998 (although it is noted that the accused KovaCevic was arrested by SFOR, and not surrendered to the Tribunal by a state).
85. C/Art. l(2)(b)ofthe ECMA.
86. See Appeals Chamber Subpoena Decision, note 6, paras. 61-66.
87. Corfti Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, 1949 ICJ Rep, 4.
88. The Max Planck Institute for Foreign and Intemational Criminal Law argued that in the context of international criminal justice national security concems should not be given the same weight before an intemational criminal court as before a national court. See Eser & Ambos, Corfti Channel Case (United Kingdom v. Albania) note 41, at 19.
89. However, one member of the Appeals Chamber, Judge Karibi-Whyte, could not accept a review by a single Judge. See Prosecutor v, Tihomir BlaSkic, Separate Opinion of Judge Adolphus G. Karibi-Whyte, Case No. 1T-95-14-AR 108 bis, A.Ch., 29 October 1997.
90. See Appeals Chamber Subpoena Decision, However note 6, paras. 67-69. See also Prosecutor v. Tihomir BlaSkic, Third Additional Order for a Witness to Appear, Case No, IT-95-I4-T, T.Ch. 1, 12 April 1999.
91. See UN Doc. A/CONF.183/C.1/WGPM/L.32, 29 June 1998.
92. See UNDoc. A/C0NF.183/C.1AVGPM/L.12,25 June 1998.
93. See UNDoc. A/CONF.183/C.1/WGPM/L.39, 1 July 1998.
94. See UNDoc. A/CONF.183/C.1/WGPM/L.70, 10 July 1998
95. See UN Doc. A/CONF.183/C.1/WGIC/L.8, 27 June 1998.
96. 113, Likewise, see Zimmermann, UN Doc. A/CONF.183/C.1/WGIC/L.8 note 91, at 216.
97. 114, However, it is noted that, pursuant to Art, 25 of the UN Charter, a Security Council decision only binds UN member states and not the Court, which is not subjected to the Council's authority.
98. 115, At the time of writing, no such proposals had been officially introduced.