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1
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84936007574
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S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993), reprinted in appendix A of this issue of Criminal Law Forum and available in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993), reprinted in appendix A of this issue of Criminal Law Forum and in 32 I.L.M. 1203.
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2
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84936010906
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Treaty of Versailles, June 28, 1919, art. 227, 2 Bevans 43. The treaty also contemplated trials by national or international military tribunals of other persons “accused of having committed acts in violation of the laws and customs of war.”Id. S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993), reprinted in appendix A of this issue of Criminal Law Forum and available in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993), reprinted in appendix A of this issue of Criminal Law Forum and in 32 I.L.M. 1203. arts. 228–230.
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3
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84936002725
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Convention for the Prevention and Punishment of Terrorism, opened for signature Nov. 16, 1937, reprinted in 7 International Legislation 862 (Manley O. Hudson ed., 1941) (which received a single ratification from India); Convention for the Creation of an International Criminal Court, opened for signature Nov. 16, 1937, reprinted in 7 International Legislation, supra, at 878 (which received no ratifications).
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4
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84936021255
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Charter of the International Military Tribunal, Aug. 8, 1945, art. 6(a), 82 U.N.T.S. 284. The Nuremberg tribunal was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. To similar effect is Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), art. 5(a), 4 Bevans 21, reprinted in 1 Benjamin Ferencz, Defining International Aggression 523 (1975). The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20, reprinted in 1 Ferencz, supra, Benjamin Ferencz, Defining International Aggression 522 (1975).
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5
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84936016992
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Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, art. VI, 78 U.N.T.S. 277; International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, art. V, 1015 U.N.T.S. 243.
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6
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84936029634
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G.A. Res. 489 (V), U.N. GAOR, 5th Sess., Supp. No. 20, at 77, U.N. Doc. A/1775 (1950), created a seventeen-member Committee on International Criminal Jurisdiction. The Committee met in Geneva during August 1951, “and at the end of its deliberations it issued a very comprehensive report to which was attached a draft Statute for an International Criminal Court.” 2 Benjamin Ferencz, An International Criminal Court: A Step toward World Peace 34–35 (1980); Report of the Committee on International Criminal Jurisdiction on Its Session Held from 1 to 31 August 1951, U.N. GAOR, 7th Sess., Supp. No. 11, at 21, U.N. Doc. A/2136 (1952) (including the draft statute), reprinted in 2 Ferencz, supra, Benjamin Ferencz, An International Criminal Court: A Step toward World Peace 337 (1980); [hereinafter 1951 Committee Report]. This draft remained just a draft, although it continued to be a topic of debate in the General Assembly for the next several years. Report of the 1953 Committee on International Criminal Jurisdiction, 27 July–20 August 1953, U.N. GAOR, 9th Sess., Supp. No. 12, at 23, U.N. Doc. A/2645 (1954) (including a revised draft statute), reprinted in 2 Ferencz, supra. Benjamin Ferencz, An International Criminal Court: A Step toward World Peace 429 (1980)
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7
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84936000361
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-
Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 6–11, U.N. Doc. S/25704 & Add.1 (1993), reprinted in appendix B of this issue of Criminal Law Forum and in 32 I.L.M. 1163 [hereinafter Secretary-General's Report].
-
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8
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84936051314
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At its forty-sixth session, in the summer of 1994, the ILC adopted a Draft Statute for an International Criminal Court, in Report of the International Law Commission on Its Forty-sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, at 43, U.N. Doc. A/49/10 (1994) [hereinafter 1994 ILC Report], which was debated the following fall in the Sixth Committee of the General Assembly, Report of the Sixth Committee, U.N. GAOR, 49th Sess., Agenda Item 137, U.N. Doc. A/49/738, at 17 (1994). Unfortunately, the Sixth Committee, id. at 17–18, and the General Assembly, G.A. Res. 49/53, U.N. GAOR, 49th Sess., 84th plen. mtg., U.N. Doc. A/49/53 (1994), failed to take decisive action toward implementing the ILC's proposals, and it is now unclear where the Draft Statute stands, Thalif Deen, United Nations: U.N. Split over International Criminal Court, Inter Press Serv., Dec. 21, 1994, available in LEXIS, World Library, Allnws File.
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10
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84936042317
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-
The International Military Tribunal for the Far East might be viewed to a certain extent as an exception to this rule, but the proclamation by General Douglas MacArthur was based on previous agreements among the Allies, most notably at the Potsdam and Moscow conferences. See sources cited supra note 4, Charter of the International Military Tribunal, Aug. 8, 1945, art. 6(a), 82 U.N.T.S. 284. The Nuremberg tribunal was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. To similar effect is Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), art. 5(a), 4 Bevans 21, reprinted in 1 Benjamin Ferencz, Defining International Aggression 523 (1975). The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20, reprinted in 1 Ferencz, supra, at 522, and in particular Editor's Note to Special Proclamation, 4 Bevans at 20–21.
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-
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-
11
-
-
84936024081
-
-
The Mexican commentary on the creation of a tribunal, for instance, noted that the establishment of an international criminal court is closely tied to the exercise of sovereignty on the part of states with territorial and personal jurisdiction. Note verbale from the Permanent Representative of Mexico to the Secretary-General, Mar. 12, 1993, U.N. Doc. S/25417 (1993), transmitting the views of the Mexican government on the establishment of an international tribunal for the former Yugoslavia under S.C. Res. 808 [hereinafter Mexican Proposal]. See id. Charter of the International Military Tribunal, Aug. 8, 1945, art. 6(a), 82 U.N.T.S. 284. The Nuremberg tribunal was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. To similar effect is Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), art. 5(a), 4 Bevans 21, reprinted in 1 Benjamin Ferencz, Defining International Aggression 523 (1975). The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20, reprinted in 1 Ferencz, supra, at 522, and in particular Editor's Note to Special Proclamation, 4 Bevans at 20–21. ¶ 3. The French Committee of Jurists similarly stressed that the institution of an international jurisdiction directly affects the sovereignty of states. Letter from the Permanent Representative of France to the Secretary-General, Feb. 10, 1993, U.N. Doc. S/25266 (1993), transmitting a report on the establishment of an international criminal tribunal for the former Yugoslavia prepared by a national Committee of Jurists [hereinafter French Proposal]. In particular, see id. Charter of the International Military Tribunal, Aug. 8, 1945, art. 6(a), 82 U.N.T.S. 284. The Nuremberg tribunal was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279. To similar effect is Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), art. 5(a), 4 Bevans 21, reprinted in 1 Benjamin Ferencz, Defining International Aggression 523 (1975). The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, 4 Bevans 20, reprinted in 1 Ferencz, supra, Benjamin Ferencz, Defining International Aggression 522 (1975). ¶ 27.
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12
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84936012933
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CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia, Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993) [hereinafter CSCE Proposal]; see also Letter from the Permanent Representative of Sweden to the Secretary-General, Feb. 18, 1993, U.N. Doc. S/25307 (1993), annexing a summary of CSCE Proposal, supra, CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia, Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993) [hereinafter CSCE Proposal] and the text of a decision by CSCE participating states on this proposal.
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13
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84936049512
-
-
It should be noted that the draft reflects the option that the CSCE participating States or some of these States take the initiative to establish the Tribunal. But the text could be used also in a United Nations context, although some modifications would be necessary. The possibility of the Security Council deciding under Chapter VII of the Charter of the United Nations to establish an international jurisdiction has been mentioned in the discussion. Even if such a decision should prove possible, legally and politically, the issues dealt with in the present report still have to be resolved. CSCE Proposal, supra note 12, CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia, Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993) [hereinafter CSCE Proposal]; at 142.
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14
-
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84935998469
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Secretary-General's Report, supra note 7, Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 6–11, U.N. Doc. S/25704 & Add.1 (1993), reprinted in appendix B of this issue of Criminal Law Forum and in 32 I.L.M. 1163 [hereinafter Secretary-General's Report], ¶ 19.
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15
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84936031435
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It is truly incomprehensible that the convention prepared by the CSCE rapporteurs did not base its entry into force on ratification by the concerned states (art. 61), even though the convention depends on the principle of “ceded jurisdiction.” CSCE Proposal, supra note 12, CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia, Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993) [hereinafter CSCE Proposal], at 41–49, 219. It is unclear what “ceded jurisdiction” might mean in the case of nonparticipation in the convention by the states with primary territorial and personal jurisdiction!
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-
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17
-
-
84936031145
-
-
French Proposal, supra note 11, French Committee of Jurists similarly stressed that the institution of an international jurisdiction directly affects the sovereignty of states. Letter from the Permanent Representative of France to the Secretary-General, Feb. 10, 1993, U.N. Doc. S/25266 (1993), transmitting a report on the establishment of an international criminal tribunal for the former Yugoslavia prepared by a national Committee of Jurists [hereinafter French Proposal], at 12.
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18
-
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84936044399
-
-
The late Professor G. Tunkin (whose student I had the honor to be) firmly objected, during the discussions on the Russian draft statute, see infra note 32, Letter from the Permanent Representative of the Russian Federation to the Secretary-General, Apr. 5, 1993, U.N. Doc. S/25537 (1993), transmitting a draft statute for an international criminal tribunal for the former Yugoslavia [hereinafter Russian Proposal], to the treaty approach, stressing, in particular, the fact that it could become a precedent for the future creation of local tribunals by treaty.
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19
-
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84936004852
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-
“As has been pointed out in many of the comments received, the treaty approach incurs the disadvantage of requiring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force.”Secretary-General's Report, supra note 7, Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 6–11, U.N. Doc. S/25704 & Add.1 (1993), reprinted in appendix B of this issue of Criminal Law Forum and in 32 I.L.M. 1163 [hereinafter Secretary-General's Report], ¶ 20.
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20
-
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84936004834
-
-
See supra note 6, G.A. Res. 489 (V), U.N. GAOR, 5th Sess., Supp. No. 20, at 77, U.N. Doc. A/1775 (1950), created a seventeen-member Committee on International Criminal Jurisdiction. The Committee met in Geneva during August 1951, “and at the end of its deliberations it issued a very comprehensive report to which was attached a draft Statute for an International Criminal Court.” 2 Benjamin Ferencz, An International Criminal Court: A Step toward World Peace 34–35 (1980); Report of the Committee on International Criminal Jurisdiction on Its Session Held from 1 to 31 August 1951, U.N. GAOR, 7th Sess., Supp. No. 11, at 21, U.N. Doc. A/2136 (1952) (including the draft statute), reprinted in 2 Ferencz, supra, at 337 [hereinafter 1951 Committee Report]. This draft remained just a draft, although it continued to be a topic of debate in the General Assembly for the next several years. Report of the 1953 Committee on International Criminal Jurisdiction, 27 July–20 August 1953, U.N. GAOR, 9th Sess., Supp. No. 12, at 23, U.N. Doc. A/2645 (1954) (including a revised draft statute), reprinted in 2 Ferencz, supra, at 429.
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21
-
-
84936016787
-
-
1951 Committee Report, supra note 6, G.A. Res. 489 (V), U.N. GAOR, 5th Sess., Supp. No. 20, at 77, U.N. Doc. A/1775 (1950), created a seventeen-member Committee on International Criminal Jurisdiction. The Committee met in Geneva during August 1951, “and at the end of its deliberations it issued a very comprehensive report to which was attached a draft Statute for an International Criminal Court.” 2 Benjamin Ferencz, An International Criminal Court: A Step toward World Peace 34–35 (1980); Report of the Committee on International Criminal Jurisdiction on Its Session Held from 1 to 31 August 1951, U.N. GAOR, 7th Sess., Supp. No. 11, at 21, U.N. Doc. A/2136 (1952) (including the draft statute), reprinted in 2 Ferencz, supra, at 337 [hereinafter 1951 Committee Report], ¶ 21.
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-
22
-
-
84936038559
-
-
Letter from the Permanent Representative of Egypt, Iran, Malaysia, Pakistan, Saudi Arabia, Senegal, and Turkey, on behalf of the Organization of the Islamic Conference, to the Secretary-General, Mar. 31, 1993, U.N. Doc. S/25512, transmitting the recommendations of the OIC on the establishment of an ad hoc tribunal for the former Yugoslavia. See id. 1951 Committee Report, supra note 6, G.A. Res. 489 (V), U.N. GAOR, 5th Sess., Supp. No. 20, at 77, U.N. Doc. A/1775 (1950), created a seventeen-member Committee on International Criminal Jurisdiction. The Committee met in Geneva during August 1951, “and at the end of its deliberations it issued a very comprehensive report to which was attached a draft Statute for an International Criminal Court.” 2 Benjamin Ferencz, An International Criminal Court: A Step toward World Peace 34–35 (1980); Report of the Committee on International Criminal Jurisdiction on Its Session Held from 1 to 31 August 1951, U.N. GAOR, 7th Sess., Supp. No. 11, at 21, U.N. Doc. A/2136 (1952) (including the draft statute), reprinted in 2 Ferencz, supra, at 337 [hereinafter 1951 Committee Report], ¶ 2.
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25
-
-
84936058476
-
-
French Proposal, supra note 11, The French Committee of Jurists similarly stressed that the institution of an international jurisdiction directly affects the sovereignty of states. Letter from the Permanent Representative of France to the Secretary-General, Feb. 10, 1993, U.N. Doc. S/25266 (1993), transmitting a report on the establishment of an international criminal tribunal for the former Yugoslavia prepared by a national Committee of Jurists [hereinafter French Proposal], ¶ 33, 43.
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26
-
-
84936015852
-
-
The ILC Working Group on a Draft Statute for an International Criminal Court also “concluded that it would be extremely difficult to establish the Court by resolution of a United Nations body, without the support of a treaty. General Assembly resolutions do not impose binding, legal obligations on States in relation to conduct external to the functioning of the United Nations itself.”1994 ILC Report, supra note 8, At its forty-sixth session, in the summer of 1994, the ILC adopted a Draft Statute for an International Criminal Court, in Report of the International Law Commission on Its Forty-sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, at 43, U.N. Doc. A/49/10 (1994) [hereinafter 1994 ILC Report], which was debated the following fall in the Sixth Committee of the General Assembly, Report of the Sixth Committee, U.N. GAOR, 49th Sess., Agenda Item 137, U.N. Doc. A/49/738, at 17 (1994). Unfortunately, the Sixth Committee, id. at 17–18, and the General Assembly, G.A. Res. 49/53, U.N. GAOR, 49th Sess., 84th plen. mtg., U.N. Doc. A/49/53 (1994), failed to take decisive action toward implementing the ILC's proposals, and it is now unclear where the Draft Statute stands, Thalif Deen, United Nations: U.N. Split over International Criminal Court, Inter Press Serv., Dec. 21, 1994, available in LEXIS, World Library, Allnws File, at 46.
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-
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-
27
-
-
84936055036
-
-
Letter from the Permanent Mission of Yugoslavia to the Secretary-General, May 19, 1993, U.N. Doc. S/25801 (1993), transmitting Letter of May 17 from the Deputy Prime Minister and Minister for Foreign Affairs of the Federal Republic of Yugoslavia on the establishment of an international tribunal for the former Yugoslavia under S.C. Res. 808. See Letter of May 17, supra, Letter from the Permanent Mission of Yugoslavia to the Secretary-General, May 19, 1993, U.N. Doc. S/25801 (1993), transmitting Letter of May 17 from the Deputy Prime Minister and Minister for Foreign Affairs of the Federal Republic of Yugoslavia on the establishment of an international tribunal for the former Yugoslavia under S.C. Res. at 3. According to Mexican Proposal, supra note 11, The Mexican commentary on the creation of a tribunal, for instance, noted that the establishment of an international criminal court is closely tied to the exercise of sovereignty on the part of states with territorial and personal jurisdiction. Note verbale from the Permanent Representative of Mexico to the Secretary-General, Mar. 12, 1993, U.N. Doc. S/25417 (1993), transmitting the views of the Mexican government on the establishment of an international tribunal for the former Yugoslavia under S.C. Res. 808 [hereinafter Mexican Proposal]. ¶ 4, the Charter “does not contain any concrete provision that could be used as a basis for the competence of the Security Council or the General Assembly to make an obligatory decision on the establishment of an ad hoc criminal court.”
-
-
-
-
28
-
-
84936024032
-
-
In this connection, see French Proposal, supra note 11, The French Committee of Jurists similarly stressed that the institution of an international jurisdiction directly affects the sovereignty of states. Letter from the Permanent Representative of France to the Secretary-General, Feb. 10, 1993, U.N. Doc. S/25266 (1993), transmitting a report on the establishment of an international criminal tribunal for the former Yugoslavia prepared by a national Committee of Jurists [hereinafter French Proposal], ¶ 34–40; Pellet, supra note 9, Alain Pellet, Le Tribunal criminel international pour l'ex-Yugoslavie: poudre aux yeux ou avancée décisive?, 98 Revue Générale de Droit International Public 7, 25 (1994), at 28.
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-
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-
29
-
-
84936041286
-
-
S.C. Res. 808, supra note 1, S.C. Res. 808, U.N. SCOR, 48th Year, 3175th mtg. at 1, U.N. Doc. S/RES/808 (1993), reprinted in appendix A of this issue of Criminal Law Forum and available in U.N. Gopher/Documents/Security Council Resolutions; S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993), reprinted in appendix A of this issue of Criminal Law Forum and in 32 I.L.M. 1203. It is important to note that this resolution was adopted unanimously.
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-
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30
-
-
84935997384
-
-
S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993), reprinted in appendix A of this issue of Criminal Law Forum and in 32 I.L.M. 1203. The Statute of the International Tribunal is set out as an annex to Secretary-General's Report, supra note 7, Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 6–11, U.N. Doc. S/25704 & Add.1 (1993), reprinted in appendix B of this issue of Criminal Law Forum and in 32 I.L.M. 1163 [hereinafter Secretary-General's Report], and is reprinted in appendix B of this issue of Criminal Law Forum and in 32 I.L.M. 1192.
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-
-
-
31
-
-
84936016868
-
-
Letter from the Permanent Representative of Italy to the Secretary-General, Feb. 16, 1993, U.N. Doc. S/25300 (1993), transmitting a draft statute for an international criminal tribunal for the former Yugoslavia prepared by a national Commission of Jurists [hereinafter Italian Proposal].
-
-
-
-
32
-
-
84936016174
-
-
Letter from the Permanent Representative of the Russian Federation to the Secretary-General, Apr. 5, 1993, U.N. Doc. S/25537 (1993), transmitting a draft statute for an international criminal tribunal for the former Yugoslavia [hereinafter Russian Proposal].
-
-
-
-
33
-
-
84936052472
-
-
Letter from the Permanent Representative of the United States of America to the Secretary-General, Apr. 5, 1993, U.N. Doc. S/25575 (1993), transmitting views and proposals on establishing an international criminal tribunal for the former Yugoslavia.
-
-
-
-
34
-
-
84936050933
-
-
French Proposal, supra note 11, The French Committee of Jurists similarly stressed that the institution of an international jurisdiction directly affects the sovereignty of states. Letter from the Permanent Representative of France to the Secretary-General, Feb. 10, 1993, U.N. Doc. S/25266 (1993), transmitting a report on the establishment of an international criminal tribunal for the former Yugoslavia prepared by a national Committee of Jurists [hereinafter French Proposal].
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-
-
-
35
-
-
84936045820
-
-
In this particular case, the Security Council would be establishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the Charter, but one of a judicial nature. This organ would, of course, have to perform its functions independently of political considerations; it would not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions. As an enforcement measure under Chapter VII, however, the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto. Secretary-General's Report, supra note 7, Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 6–11, U.N. Doc. S/25704 & Add. 1 (1993), reprinted in appendix B of this issue of Criminal Law Forum and in 32 I.L.M. 1163 [hereinafter Secretary-General's Report]. ¶ 28.
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-
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-
36
-
-
84935996009
-
-
Id. ¶ 23, 28. In this particular case, the Security Council would be establishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the Charter, but one of a judicial nature. This organ would, of course, have to perform its functions independently of political considerations; it would not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions. As an enforcement measure under Chapter VII, however, the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto. Secretary-General's Report, supra note 7, Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 6–11, U.N. Doc. S/25704 & Add. 1 (1993), reprinted in appendix B of this issue of Criminal Law Forum and in 32 I.L.M. 1163 [hereinafter Secretary-General's Report]. ¶ 23, 28.
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-
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-
37
-
-
84936056562
-
-
The Russian draft statute recommended the participation of the former Yugoslavian states in the process of elaborating a statute for an ad hoc tribunal and of deciding upon its organization. This proposal also contemplated giving these states the opportunity to express their approval or disapproval of such a statute before the Security Council voted to approve it, although their disapproval would not have blocked the statute's adoption. Russian Proposal, supra note 32, Letter from the Permanent Representative of the Russian Federation to the Secretary-General, Apr. 5, 1993, U.N. Doc. S/25537 (1993), transmitting a draft statute for an international criminal tribunal for the former Yugoslavia [hereinafter Russian Proposal], at 15. On the position of the Federal Republic of Yugoslavia toward the Tribunal, see Mark Fuller, Yugoslavia: Croatia, Bosnia Set to Surrender War Crimes Suspects, Inter Press Serv., Oct. 11, 1994, available in LEXIS, World Library, Allnws File; Federal Affairs: War Crimes Prosecutor Holds Talks with Federal Officials, BBC Summary of World Broadcasts (Yugo. Telegraph Serv.), Oct. 10, 1994, available in LEXIS, World Library, Allnws File.
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-
-
-
38
-
-
84936034320
-
-
CSCE Proposal, supra note 12, CSCE Rapporreurs (corell-Turk-thune), Moscow Human Dimension Mechanism to Bosnia, Herzegonia, and criatia, Proposal for an international War Crimes Tribunal for the Former Yugoslavia (1993) [hereinafter CSCE Proposal]; at 50–57, 177–79.
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-
-
-
39
-
-
84936014120
-
-
For example, Penal Code art. 125 (Yugo.) went beyond the Fourth Geneva Convention, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted Aug. 12, 1949, arts. 146–147, 75 U.N.T.S. 287, in criminalizing offenses in fulfillment of the obligation to enact domestic legislation to punish grave breaches, 4 The Geneva Conventions of 12 August 1949: Commentary 590 n.1, 594 (Jean S. Pictet gen. ed., 1958).
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-
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-
40
-
-
84936022563
-
-
French Proposal, Supra note 11, The French Committee of Furists similarly stressed that the institution of an international jurisdiction directly affects the sovereignty of states. Letter from the Permanent Representative of France to teh Secretary-General, Feb. 10, 1993, U.N. Doc. S/25266 (1993), transmitting a report on the establishment of an international criminal tribunal for the former Yugoslavia prepared by a national Committee of Jurists [hereinafter French Proposal] ¶ 52 (citation omitted), 57.
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-
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-
42
-
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84936005891
-
-
French Proposal, supra note 11. The French Committee of Jurists similarly stressed that the institution of an international jurisdiction directly affects the sovereignty of states. Letter from the Permanent Representative of France to the Secretary-General, Feb. 10, 1993, U.N. Doc. S/25266 (1993), transmitting a report on the establishment of an international criminal tribunal for the former Yugoslavia prepared by a national Committee of Jurists [hereinafter French Proposal].
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-
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43
-
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84936025377
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International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, art. 15, 999 U.N.T.S. 171.
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44
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84936011409
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European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, art. 7, Europ. T.S. 5. Similarly, the Draft Code of Crimes against the Peace and Security of Mankind provides that the “characterization of an act or omission as a crime against the peace and security of mankind is independent of internal law. The fact that an act or omission is or is not punishable under internal law does not affect this characterization.” Draft Code of Crimes against the Peace and Security of Mankind art. 2, in Report of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 238, U.N. Doc. A/46/10 (1991). It is important to note further that the 1994 Draft Statute for an International Criminal Court relies on international law alone to satisfy the principle of legality: Article 39: Principle of Legaliry (Nullum Crimen Sine Lege) An accused shall not be held guilty: (a) [with respect to the crime of genocide, the crime of aggression, serious violations of the laws and customs applicable in armed conflict, or crimes against humanity] unless the act or omission in question constituted a crime under international law. 1194 ILC Reprot, supra note 8, At its forty-sixth session, in the summer of 1994, the ILC adopted a Draft Statute for an International Criminal Court, in Reprot of the International Law Commission on Its Forty-sixth Session, U.N. GAOR, 49TH Sess., Supp. No. 10, at 43, U.N. Doc. A/49/10 (1994)_[jereinafter 1994 ILC Report], at 112.
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45
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84936032243
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I.C.J.Statute art. 38(1)(c).
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46
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84935999857
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The Soviet doctrine of international law, which was based upon the class nature of law and upon the idea that national legal systems embody different class structures and interests, did not recognize the possibility of the existence of general principles of substantive law spanning different national legal systems. Rather, such technical and procedural concepts as lex posterior derogat priori and res judicata were recognized as the general principles of law. See 1 International Law Course 208-10 (R. Mullerson & G. Tunkin eds., 1989).
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47
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84936006267
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I.C.J. Statute art. 38(1)(d).
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