In May 1993, in response to the  ethnic cleansing  of some 250,000 Muslims in the former Yugoslavia, the Security Council adopted a resolution establishing the Yugoslavia Tribunal; in September 1993, the General Assembly elected the Tribunal\u27s judges; and in July 1994, the Security Council appointed its Prosecutor

Scharf, Michael P.

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An Assessment of the Yugoslavia War Crimes Tribunal

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AN ASSESSMENT OF THE YUGOSLAVIA WARCRIMES TRIBUNALMichael P. Scharf*I. INTRODUCTIONIn May 1993, in response to the "ethnic cleansing" of some 250,000Muslims in the former Yugoslavia, the Security Council adopted a resolutionestablishing the Yugoslavia Tribunal; in September 1993, the GeneralAssembly elected the Tribunal's judges; and in July 1994, the SecurityCouncil appointed its Prosecutor. As of the time of this writing, theYugoslavia Tribunal has indicted over fifty suspects, including Bosnian Serbleader Radovan Karadzic and his military chief, General Ratko Mladic, yetonly a few trials have commenced.The establishment of the Yugoslavia Tribunal marked the first timesince the Allies created the Nuremberg and Tokyo Military tribunalsfollowing World War II that an international court was set up to prosecutepersons responsible for such international crimes. Justice Robert Jackson,the Chief Prosecutor at Nuremberg, concluded his report to the President onthe Nuremberg Trials by acknowledging that "many mistakes have beenmade and many inadequacies must be confessed." But he went on to saythat he was "consoled by the fact that in proceedings of this novelty, errorsand missteps may also be instructive to the future." As the first internationalcriminal court, the Nuremberg Tribunal provides a benchmark for assessingthe Yugoslavia Tribunal. The question, then, is have we learned from themistakes of Nuremberg?II. A COMPARISON WITH NUREMBERGThere were four main criticisms levied on Nuremberg. First, that itwas a victor's tribunal before which only the vanquished were called toaccount for violations of international humanitarian law. Second, that thedefendants were prosecuted and punished for crimes expressly defined forthe first time in an instrument adopted by the victors at the conclusion of thewar. Third, that the Nuremberg Tribunal functioned on the basis of limited* Associate Professor of Law, New England School of Law; formerly Attorney-Adviser,Office of the Legal Adviser, U.S. Departmentof State, 1989-1993; J.D. Duke University School ofLaw. This is an expanded version of a speech delivered at International Law Weekend/95.ILSA Journal of Int'l & Comparative Lawprocedural rules that inadequately protected the rights of the accused. Andfinally, that it was a tribunal of first and last resort, since it had no appellatechamber.A. Victor's JusticeElsewhere, I have written that in contrast to Nuremberg, theYugoslavia Tribunal was created neither by the victors nor by the partiesinvolved in the conflict, but rather by the United Nations, representing theinternational community of States. Yet, this is perhaps somewhat of anoversimplification. The decision to establish the Yugoslavia Tribunal wasmade by the U.N. Security Council, which has not remained merely aneutral third party; rather, it has itself become deeply involved in theconflict.The Security Council has imposed sanctions on the side perceived tobe responsible for the conflict, authorized the use of force, and sent in tensof thousands of peacekeeping personnel. Its numerous resolutions have beenignored and many of its peacekeeping troops have been injured or killed;some have even been held hostage. Moreover, a compelling argument canbe made that the Security Council has (justifiably) favored the Bosnian-Muslims over the Serbs throughout the conflict. Although it imposedsweeping economic sanctions on the Serbs; such action was never evenconsidered when Croatian forces committed similar acts of ethnic cleansing.During the conflict, the Council has been quite vocal in its condemnation ofSerb atrocities, but its criticisms of those committed by Muslims and Croatshas been muted.Although the Yugoslavia Tribunal is supposed to be independentfrom the Security Council, one cannot ignore that the Tribunal's Prosecutorwas selected by the Security Council and its Judges were selected by theGeneral Assembly from a short list proposed by the Security Council. Whilethe Tribunal has jurisdiction to prosecute any one responsible for violationsof international humanitarian law in the Former Yugoslavia, it is perhaps nosurprise that the indictments so far have been overwhelmingly against Serbs.As long as the jurisdiction of ad hoc tribunals is triggered by a decision ofthe Security Council, and the prosecutors and judges are selected by theCouncil, such tribunals will be susceptible to the criticism that they are notcompletely neutral. This is one of the reasons the international community isso interested in establishing a permanent international criminal court.B. Application of Ex Post Facto LawsPerhaps the greatest criticism of Nuremberg was its perceivedapplication of ex post facto laws, by holding individuals responsible for656 [Vol. 2:655Scharfwaging a war of aggression. The first to voice this criticism was SenatorRobert Taft of Ohio in 1946, but it wasn't until John F. Kennedy reproducedTaft's speech in his Pulitzer Prize winning 1956 book, Profiles of Courage,that this criticism became part of the public legacy of Nuremberg.The creators of the Yugoslavia Tribunal went to great lengths toensure that the Tribunal would not be subject to a similar criticism. Thus, indrafting the Tribunal's Statute, the Secretary-General required that theTribunal's jurisdiction be defined on the basis of "rules of law which arebeyond any doubt part of customary international law." In its proposal forthe Tribunal's Statute, the International Committee of the Red Cross, theworld's leading authority on international humanitarian law, "underlined thefact that according to International Humanitarian Law as it stands today, thenotion of war crimes is limited to situations of international armed conflict."In the first case to be heard before the Yugoslavia Tribunal, thedefendant, Dusko Tadic, challenged the lawfulness of his indictment underArticle 2 (grave breaches of the Geneva Conventions) and Article 3(violations of the customs of war) of the Tribunal's Statute on the ground thatthere was no international armed conflict in the region of Prijedor, where thecrimes he was charged with are said to have been committed. In a novelinterpretation, the Yugoslavia Tribunal's Appeals Chamber decided by avote of four to five that, although Article 2 of the Tribunal's Statute appliedonly in international armed conflicts, Article 3 applied to war crimes"regardless of whether they are committed in internal or international armedconflicts."The Tribunal based its decision on its perception of the trend ininternational law in which "the distinction between interstate wars and civilwars is losing its value as far as human beings are concerned." WhileProfessor Meron has argued convincingly for acceptance of individualresponsibility for violations of the Geneva Conventions and the Protocolsadditional thereto in the context of internal armed conflict, such recognitionwould constitute progressive development of international law, rather thanacknowledgment of a rule that is beyond doubt found in existing law. Inaddition to raising the ex post facto criticism, there is a second importantreason for the Tribunal to exercise greater caution in construing itsjurisdiction: States will not have faith in the integrity of the Tribunal as aprecedent for other ad hoc tribunals and for a permanent internationalcriminal court if the Tribunal is perceived as prone to expansiveinterpretations of its jurisdiction.1996] 657658 ILSA Journal of Int'l & Comparative LawC. Violations of Defendant's Due ProcessThe Nuremberg Tribunal has been severely criticized for allowingthe prosecutors to introduce ex parte affidavits against the accused over theobjections of their attorneys. As Telford Taylor, one of the Prosecutors atNuremberg, wrote in his book Anatomy of the Nuremberg Tribunal, "[tiotalreliance on ... untested depositions by unseen witnesses is certainly not themost reliable road to factual accuracy. ... Considering the number ofdeponents and the play of emotional factors, not only faulty observation butdeliberate exaggeration must have warped many of the reports."' Suchaffidavits seriously undermined the defendant's right to confront witnessesagainst him. In the case of Maryland v. Craig, the U.S. Supreme Courtexpressed the importance of this right as follows: "Face-to-face confrontationgenerally serves to enhance the accuracy of fact finding by reducing the riskthat a witness will wrongfully implicate an innocent person."On August 10, 1995, the Trial Chamber of the Yugoslavia Tribunalissued a two to one decision, holding that the identity of several witnessescould be withheld indefinitely from the defendant, Dusko Tadic, and hiscounsel, even throughout the trial, in order to protect the witnesses and theirfamilies from retribution. This decision is troubling in that it elevates theprotection of victims above the accused's right of confrontation,notwithstanding the fact that the Article 20 of the Tribunal's Statute requiresthat proceedings be conducted "with full respect for the rights of theaccused," and with merely "due regard for the protection of victims andwitnesses." In addition, the Yugoslavia Tribunal rationalized its decision onthe ground that the Tribunal is "comparable to a military Tribunal" whichhas more "limited rights of due process and more lenient rules of evidence."It then cited favorably the practice of the Nuremberg Tribunal to admithearsay evidence and ex parte affidavits with greater frequency than wouldbe appropriate in domestic trials. Although the rationale for this decisionwas that the United Nations had not established or funded a sufficient witnessprotection program, it would have been better for the Tribunal to refuse toproceed with the trial until such a program was set up than to go forward onthe basis of unidentified and anonymous witnesses.D. Right of AppealA final criticism of Nuremberg was that it did not provide for theright of appeal. The Statute of the Yugoslavia Tribunal has been recognizedas constituting a major advancement over Nuremberg by guaranteeing the1. TELFORDTAYLOR, ANATOMY OF THE NUREMBERGTRIALS, at 174, 241, and 315[Vol. 2:655Scharfright of appeal and providing for a separate court of appeal. However, theprocedure for the selection of judges did not differentiate between trial andappellate judges, leaving the decision to be worked out by the judgesthemselves. When they arrived at the Hague, this became the subject of anacrimonious debate, since nearly all the judges wished to be appointed to theappeals chamber, which was viewed to be the more prestigious assignment.As a compromise, the judges agreed that assignments would be for an initialperiod of one year and subject to "rotat[ion] on a regular basis" thereafter.The rotation principle adopted by the judges is at odds with theprovisions of the Tribunal's Statute intended to maintain a clear distinctionbetween the two levels of jurisdiction. Article 12 provides that there shall bethree judges in each Trial Chamber and five judges in the Appeals Chamber,and Article 14(3) expressly states that a judge shall serve only in thechamber to which he or she is assigned. These provisions were intended toensure the right of an accused to have an adverse judgment and sentence in acriminal case reviewed by "a higher tribunal according to law," as requiredby Article 14 of the International Covenant on Civil and Political Rights.The purpose of the principle of the double degree of jurisdiction under whichjudges of the same rank do not review each other's decision is to avoidundermining the integrity of the appeals process as a result of the judges'hesitancy to reverse decisions to avoid the future reversal of their owndecisions. The rotation principle, therefore, undermines the YugoslaviaTribunal's appellate process.III. CONCLUSIONIn the conclusion of Virginia Morris and my recent book on theYugoslavia Tribunal, we stated:The Statute of the [Yugoslavia] Tribunal clearly meets theinternational standards of due process established atNuremberg and reflects the significant developments ininternational human rights standards in the last halfcentury. The detailed Rules of Procedure and Evidenceadopted by the judges pursuant to the Statute represents amarked improvement over the scant set of rules that werefashioned for the Nuremberg Tribunal. The Statute andthe Rules provide the necessary framework for ensuringthat the [Yugoslavia] Tribunal will comply with1996] 659660 ILSA Journal of Int'l & Comparative Lawinternational standards of fair trial and due process andavoid the criticisms of its predecessor.2In light of the subsequent developments described above, we may have beentoo optimistic in our initial assessment. The Yugoslavia Tribunal's record sofar can only be described as a mixed one. It can, and must, do better. Toparaphrase Robert Jackson again, if we pass the defendants in aninternational trial a poisoned chalice, it is we, the international community,who is ultimately injured. For, the record upon which we judge Mr. Tadictoday, will be the record upon which history judges the effort to prosecutecrimes before an international Tribunal.2. VIRGINIA MORRIS AND MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THEINTERNATIONALCRIMINALTRIBUNAL FOR THE FORMER YUGOSLAVIA 333-334 (1995).[Vol. 2:655

An Assessment Of The Yugoslavia War Crimes Tribunal

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An Assessment Of The Yugoslavia War Crimes Tribunal

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