Former Yugoslavia

1 For a history of these efforts, see M. Cherif Bassiouni & Christopher Blakesley, `The Need for an International Criminal Court in the New World Order', Vanderbilt Journal of Transnational Law, vol. 25, 1992, p. 151; M. Cherif Bassiouni, `The Time has Come for an International Criminal Court', Indiana International and Comparative Law Review, vol. 1 1991; M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal, 1-21 (1987). See also Benjamin Ferencz, An International Criminal Court (2 Vols. 1980). See also note 39.

2 Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement), London, 8 August 1945, 82 U.N.T.S. 279, reprinted in Charles I. Bevans, ed., Treaties and Other International Agreements of the United States of America, vol. 3, 1970, p. 1238; Annex to Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement), London, 8 August 1945, 82 U.N.T.S. 279, reprinted in Charles I. Bevans, ed., Treaties and Other International Agreements p. 1239 (hereinafter the London Charter).

3 International Military Tribunal for the Far East, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 19 January 1946; Charter dated 19 January 1946, T.I.A.S. 1589, reprinted in 4 Bevans, supra note 3, at 20 [hereinafter IMTFE Proclamation]; Amended Charter dated 26 April 1946, in Charles I. Bevans, ed., Treaties and Other International Agreements. vol. 4, 1970 p. 27 [hereinafter IMTFE Amended Charter]. For an analysis of the Tokyo proceedings, see Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (1987); Richard H. Minear, Victor's Justice: The Tokyo War Crimes Trials (1971); Bert V.A. Röling, The Tokyo Trials and Beyond: Reflections of a Peacemonger in Antonio Cassese, ed., (1993); C. Hosoya et al., eds, The Tokyo War Crimes Trial: An International Symposium (1986).

4 The Security Council in resolution 808 decided to establish an international criminal tribunal to prosecute those responsible for violations of international humanitarian law in the former Yugoslavia. S/RES/808 (22 February 1993). Pursuant to this resolution, the Secretary-General prepared a report containing comments on the articles of the statute of the tribunal. The tribunal's statute appears in an Annex to the Secretary-General's report. Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), S/25704 (3 May 1993). The Security Council adopted the Secretary-General's draft of the statute without change in resolution 827. S/RES/827 (25 May 1993).

5 See generally Anthony D'Amato, `Peace vs. Accountability in Bosnia', American Journal of International Law, vol. 88, 1994, p. 500; Theodor Meron, `The Case for War Crimes Trials in Yugoslavia', Foreign Affairs, Summer 1993, p. 122; James C. O'Brien, `The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia', American Journal of International Law, vol. 87, 1993, p. 639; Paul Szasz, `Proposed War Crimes Tribunal in Yugoslavia and Developments of International Law', American Journal of International Law, vol. 88, 1994, p. 78.

6 Treaty of Peace with Germany (Treaty of Versailles), 28 June 1919, Martens Nouveau Recueil vol. 11 (3d edition), pp. 323.

7 The government of the Netherlands viewed the charge against the Kaiser as a `political offence,' because a Head of State's decision to go to war is within the prerogative of national sovereignty. See Quincy Wright, `The Legality of the Kaiser', American Political Science Review, vol. 8, 1919, p. 121.

8 See Claude Mullins, The Leipzig Trials: An Account of the War Criminals Trials and a Study of German Mentality (1921); James Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing of War Criminals (1983).

9 This Commission was established by the Preliminary Peace Conference of Paris which produced the Treaty of Versailles (1919).

10 Report Presented to the Preliminary Peace Conference by the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties (Conference of Paris 1919, Carnegie Endowment for International Peace, Division of International Law), Pamphlet no. 32 (1919), reprinted in American Journal of International Law, vol. 14, 1920, p. 95 [hereinafter 1919 Commission Report].

11 The maximum sentence imposed was three years, erasing any hope that this formal exercise could serve as a future deterrent to others. During these proceedings, the accused were cheered by crowds attending the trials and outside the courtrooms. The accused were transformed from war criminals to national heroes and martyrs of foreign oppression. Thus, what was intended to be a punitive action meant to deter such conduct in the future gave rise to nationalistic fervor.

12 See M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (1992).

13 Convention Respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, 3 Marten (3d edition) 461, 36 Stat. 2277, T.S. no. 539, reprinted in American Journal of International Law (supplement), vol. 2, 1908, pp. 90, 92 at preambular 6.

14 See 1919 Commission Report, as in note 10, pp. 144-50; Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities, Annex II, 4 April 1919, reprinted in American Journal of International Law, vol. 14, 1920, p. 127; Reservations by the Japanese Delegation, Annex III, 4 April 1919, reprinted in American Journal of International Law, vol. 14, 1920, p. 151.

15 See Vahakn N. Dadrian, `Genocide as a Problem of National and International Law: The World War I Armenian Case and its Contemporary Legal Ramifications', Yale Journal of International Law, vol. 14, 1989, p. 221.

16 Treaty between the Allied and Associated Powers and Turkey, signed at Sèvres, 10 August 1920 (Treaty of Sèvres), reprinted in American Journal of International Law (supplement), vol. 15, 1921 (supplement), p. 179.

17 Treaty of Peace with Turkey, signed at Lausanne, 24 July 1923 (Treaty of Lausanne), reprinted in American Journal of International Law (supplement), vol. 18, 1924 (supplement), p. 1.

18 In recent times, Parliamentarians for Global Action have made this initiative a principal goal. See James A. Leach & M. Cherif Bassiouni, `An International Criminal Court', Occasional Paper no. 1 (Parliamentarians for Global Action, October 1992).

19 Annex to Convention for Prevention and Punishment of Terrorism, 16 November 1937, League of Nations O.J. no. 19, at 23 (1938), League of Nations Doc. C.546(1).m.383(1), 1937, V (1938).

20 See London Agreement, London Charter, both as in note 2 above.

21 Allied Control Council Law no. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, Official Gazette of the Control Council for Germany, no. 3, Berlin, 31 January 1946, reprinted in Benjamin Ferencz, An International Criminal Court: A Step Towards World Peace (1980), p. 488.

22 IMTFE Proclamation, IMTFE Amended Charter, see note 3 above.

23 See, e.g., Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (US Government Printing Office 1949).

24 For the IMTFE proceedings, see Bert V.A. Röling & C. Fritz Reüter, eds., The Tokyo Judgment (1977); R. John Pritchard & Sonia M. Zaide, eds., The Tokyo War Crimes Trials: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East (1981).

25 The Inter-Allied Declaration, signed at St. James Palace on 13 January 1942, reprinted in Punishment for War Crimes: Inter-Allied Declaration Signed at St. James Palace, London, on 13 January 1942, and Relative Documents (New York: United Nations Office, undated).

26 See generally United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948).

27 Declaration on Security (The Moscow Declaration), Department of State Bulletin, vol. 9, 1943, p. 308, reprinted in American Journal of International Law, vol. 38, 1944, p. 5.

28 For example, the UNWCC had extensive evidence of crimes committed by the Italian military in Ethiopia, Libya, Yugoslavia and Greece during the war. Overall, the UNWCC determined that 1,286 accused Italians should be prosecuted by the Allies pursuant to Italy's surrender treaty. See Charles I. Bevans, ed., Treaties and Other International Agreements..., vol. 4, p. 311; United Nations War Crimes Commission, History of the United Nations War Crimes Commission... (1948) p. 511. The UNWCC had `dossiers' alleging violations such as the killing of innocent civilians and POWs, torture and mistreatment of prisoners, bombardments of hospitals, destruction of cultural property, and the use of poisonous gas. See M. Cherif Bassiouni, Crimes against Humanity..., p. 85. The governments of Ethiopia, Yugoslavia and Greece requested extradition of the war criminals pursuant to article 35 of the instrument of surrender of Italy. The occupying forces of Italy, the United States and the United Kingdom, denied their requests. Subsequently, in 1946, the Italian government also denied the requests. Ibid., pp. 227-228. At the time, fear of Communism was pervasive and the Major Powers believed that reform fascists of the army were the best opponents of Communism: in short, political views prevailed over justice.

29 Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 A (III) 9 December 1948, entered into force 12 January 1951, reprinted in Human Rights: A Compilation of International Instruments (New York: Centre for Human Rights, 1993), pp. 669-670.

30 Convention on the Suppression and Punishment of the Crime of Apartheid, G.A. Res. 3068 (XXVIII) 30 November 1973, entered into force 18 July 1976, reprinted in Human Rights: A Compilation of International Instruments, p.80 (United Nations, 1993). See also M. Cherif Bassiouni and Daniel Derby, `Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant Instruments,' Hofstra Law Review, vol. 9, 1981, p. 523.

31 For a history of the International Law Commission's efforts, see Leo Gross, `Some Observations on the Draft Code of Offenses against the Peace and Security of Mankind', Israel Yearbook on Human Rights vol. 15, 1985, p. 224; D.H.N. Johnson, `The Draft Code of Offenses Against the Peace and Security of Mankind', International and Comparative Law Quarterly, vol. 4, 1955, p. 445; Sharon Williams, `The Draft Code of Offenses Against the Peace and Security of Mankind', in M. Cherif Bassiouni, ed., International Criminal Law, 1985, p. 109. For a Commentary on the 1991 Final Draft Code of Offences Against the Peace and Security of Mankind adopted by the ILC, see `Commentaries on the International Law Commission's 1991 Draft Code of Crimes Against the Peace and Security of Mankind', Nouvelle Etudes Pénales, vol. 11, 1993.

32 See Draft Statute for an International Criminal Court (Annex to the Report of the Committee on International Criminal Court Jurisdiction, 31 August 1951), 7 U.N. GAOR Supp. (no. 11), U.N. Doc. A/2136 (1952) p. 23. Subsequent reports of the Committee on International Criminal Jurisdiction consisted of U.N. Doc. A/2186 and U.N. Doc. A/2186/Add. 1. The discussions of the Sixth Committee and of the General Assembly until the end of 1952 encompassed all three reports (U.N. Doc. A/2136, U.N. Doc. A/2186, U.N. Doc. A/2186/Add. 1). See also Historical Survey of the Question of International Criminal Jurisdiction, Memorandum by the Secretary-General, A/CN.4/7/Rev. 1 (1949), reprinted in Benjamin Ferencz, An International Criminal Court: A Step Towards World Peace (1980), p. 399.

33 In November 1992, the Sixth Committee of the General Assembly asked the ILC to prepare a draft statute for an international criminal court, but failed to give the ILC any direction as to the questions the Assembly wanted answered. See G.A. Res. 47/33 (25 Nov. 1992); Revised Report of the Working Group on the Draft Statute for an International Criminal Court, International Law Commission, 45th Sess., 3 May-23 July 1993, A/CN.4/L.490 (19 July 1993); Revised Report of the Working Group on the Draft Statute for an International Criminal Court: Addendum, International Law Commission, 45th Sess., 3 May-23 July 1993, A/CN.4/L.490/Add. 1 (19 July 1993). The 1994 ILC report on an international criminal court should be published in September 1994. Report of the International Law Commission, 46th Sess., 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. no. 10, U.N. Doc. A/49/10 (1994).

34 The IMT was presumed to be an international military tribunal but was similar to ordinary national criminal proceedings in Europe and the USA.

35 Yet, even though MacArthur, a US General, established the tribunal, the United States Supreme Court held that the tribunal was not a United States' court. Rather, the Supreme Court maintained that the tribunal was merely created by an `agent of the Allied Powers'. Hirota v. MacArthur, 338 U.S. 197, 198 (1948).

36 S/RES/771 at 2, para 5 (13 Aug. 1992).

37 S/RES/780 at 2, para 2 (6 Oct. 1992).

38 S/RES/808 (22 Feb. 1993).

39 Report of the Committee of French Jurists Established to Study the Establishment of an International Criminal Tribunal, U.N. Doc. S/25266 (10 Feb. 1993).

40 It was my privilege to have been consulted by this Commission.

41 Statute of the Tribunal for War Crimes and Crimes Against Humanity Committed in the Territory of the Former Yugoslavia, U.N. Doc. S/25300 (17 Feb. 1993).

42 I had the honor of serving as a member of this Commission.

43 Proposal for an International War Crimes Tribunal for the Former Yugoslavia, U.N. Doc. S/25307 (18 Feb. 1993). The CSCE text was modeled after the text of the draft statute which I had prepared and the International Association of Penal Law had published. M. Cherif Bassiouni, `Draft Statute for the Establishment of an International Criminal Tribunal', Nouvelle Etudes Pénales vol. 9, 1992. This draft statute was a revision of a text submitted by the International Institute of Higher Studies in Criminal Sciences (ISISC) to the Eighth United Nations Congress on Crime Prevention and the Treatment of Offenders, Havana, Cuba, 27 August-7 September 1990, U.N. Doc. A/Conf.144/NGO 7 (1990). It was based on an earlier draft prepared by this writer for the U.N. Commission on Human Rights, Ad Hoc Committee on Southern Africa to enforce the Apartheid Convention, 19 January 1980, U.N. Doc. no. E/CN.4/1426, reprinted in Hofstra Law Review, vol. 9, 1981, p. 553. See also M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987).

44 There is no official document number for this circulated, but unofficial document.

45 Views of the Government of Mexico Supplied Pursuant to Paragraph 2 of Security Council resolution 808 (1993), U.N. Doc. S/25417 (16 March 1993).

46 Paragraph 13 of the Secretary-General's Report lists the following countries as submitting suggestions regarding the tribunal's statute: Australia, Austria, Belgium, Brazil, Canada, Chile, China, Denmark, Egypt, Germany, Iran (Islamic Republic of), Ireland, Italy, Malaysia, Mexico, Netherlands, New Zealand, Pakistan, Portugal, Russian Federation, Saudi Arabia, Senegal, Slovenia, Spain, Sweden, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America and Yugoslavia. Report of the Secretary-General..., (as in note 4), p. 5. Switzerland submitted suggestions to the Secretary-General as well. For a list of organizations that commented on the statute of the tribunal, see paragraph 14 of the report. In paragraph 17, the Secretary-General stated that he relied upon the work of the International Law Commission as well as the aforementioned states and organizations, p.

47 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (ICRC 1977); 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (ICRC 1977).

48 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 Aug. 1949), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (12 Aug. 1949), 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War (12 Aug. 1949), 75 U.N.T.S. 155; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 Aug. 1949), 75 U.N.T.S. 287.

49 See Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), U.N. Doc. S/1994/674 (27 May 1994), wherein the Commission concluded that the 1977 Protocols Additional to the Geneva Conventions applied to the conflict as part of international humanitarian law, even though not specifically mentioned in article 2 of the statute. For a detailed history, see. M. Cherif Bassiouni, `The United Nations, Commision of Experts Established Pursuant to the Security Council Resolution 780 (1992)', American Journal of International Law, vol. 88, 1994, p. 784.

50 For an insight into the establishment of IMT, see Telford Taylor, The Anatomy of the Nuremberg Trials (1992).

51 The requirements of an independent and capable Prosecutor have been satisfied with the appointment of Justice Richard Goldstone of the Supreme Court of South Africa as Prosecutor. Because the Tribunal was established in May 1993, pressures are already evident on the Prosecutor to produce indictments, even though he only took office 15 August 1994.

52 By separating the investigative from the judicial bodies, the work of the former may be disregarded by the latter, thereby fostering duplicating efforts. And when limited results are obtained by reason of non-reliance by prosecutorial or judicial bodies on the prior work of investigative bodies, the funding sources may tire and reduce their future support.

53 This is what leads some thinkers to believe that a more realistic goal than that of international criminal justice is the establishment of `truth commissions'. Herman Schwartz, `What Can We Do About Balkan Atrocities?', New York Times, 9 April 1993, A p. 27. But `truth commissions' serve a useful purpose where one or a few facts need to be ascertained, like in the El-Mozote mass killing in El Salvador and the murder of the Jesuit priests in that country. See Annex, Report of the Commission on Truth for El Salvador, U.N. Doc. S/25500 (1 April 1993). When it comes to large-scale victimization, however, there is no substitute for careful and impartial criminal investigations.

54 After the Gulf Conflict militarily ended in 1991, there were demands for an ad hoc war crimes tribunal to try Saddam Hussein and some Iraqi military personnel, but nothing came of this. However, this was not the case for Cambodia's Pol Pot and Khmer Rouge who are responsible for an estimated 2 million deaths. Since July 1994, there has been a U.N. Commission to investigate violations in Rwanda, and proposals to establish another ad hoc tribunal, or to vest expanded jurisdiction in the ICTFY to try Rwandan offenders.