How will historians and others judge the Balkan war crimes tribunal? In my brief time, I would like to indicate how the prosecution of Tadic, the first case before that tribunal, has raised some doubts about that body\u27s legitimacy and likely legacy

Alvarez, Jose E.

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THE LIKELY LEGACIES OF TADICJose E. Alvarez *How will historians and others judge the Balkan war crimestribunal? In my brief time, I would like to indicate how the prosecution ofTadic, the first case before that tribunal, has raised some doubts about thatbody's legitimacy and likely legacy.It is clear the creators of this tribunal attempted to correct some ofthe obvious problems with Nuremberg and Tokyo. The legitimacy ofthose earlier prosecutions had been attacked on a number of grounds:1) as revenge trials subject to double standards wrought and conductedby the victors against the vanquished;2) for violating the rights of defendants through such questionablepractices as trials in absentia and unfair evidentiary rules thatsubjected defendants to trial by document subject to no appeal orreview with little attempt to equalize the opportunities betweenprosecution and defense;3) for violating the rule against ex post facto imposition of criminalliability, principally through charges invoking crimes againstaggression, crimes against humanity, and for membership in criminalorganizations;4) for dishonoring the memory of Holocaust victims by artificiallylimiting all prosecutions to crimes committed in the course ofaggressive war by one state against another thereby denying victimsof German atrocities, particularly against the Jews and gypsies, frompresenting the world with an accurate picture of the nature of theHolocaust (both during the War and before) and the very realcomplicity of ordinary German citizens.'* Professor, University of Michigan Law School. This talk is based on the author'srecent article, Nuremberg Revisited: The Tadic Case, in 7 EUR. J. INT'I L. 245 (1996). Foradditional references, readers should consult that article.1. For a summary of some of these critiques, see, e.g., DAVID LUBAN, LEGALMODERNISM 335-78 (1994); Kevin R. Chatey, Ptifalls and Imperatives: Applying the Lessons ofNuremberg to the Yugoslav War Crimes Trials, 14 DICK. J. INT'L L. 57 (1995); for partialresponses combined with additional critiques, see, e.g., TELFORD TAYLOR, THE ANATOMY OFTHE NUREMBERG TRIALS: A PERSONAL MEMOIR (1993).ILSA Journal of Int'l & Comparative LawThe creators of the Balkan tribunal sought valiantly to anticipateand correct these possible problems. Thus, they created an institution thatthey believed would not be subject to the charge of victor's justice sincethe tribunal was created by the world community in the form of the UnitedNations Security Council and not merely through the action of incidentalvictors of a war. They sought to ensure that the tribunal's judges wouldreflect the world's diversity and not merely the interests of the fivepermanent members of the Council. They further attempted to defuseaccusations of partiality by giving the tribunal jurisdiction over all crimescommitted in the former Yugoslavia by any side They incorporated theguarantees of modern international human rights to ensure fairness todefendants and gave solace to victims by providing mechanisms in thetribunal's procedures to protect them from harm should they testify. Inresponse to fears of ex post facto law, they restricted the tribunal'sjurisdiction to crimes based on those "rules of beyond any doubt part ofcustomary law. "'2 With an eye on the ultimate legitimacy of the tribunal,they omitted the death penalty, trials in absentia, or liability for meremembership in a criminal organization.,Despite all these ostensible improvements vis-A-vis Nuremberg andTokyo, the legitimacy of the tribunal remains an issue. The most obviousset of constraints for the Tribunal has been ably suggested by others and Ineed not dwell on them in my remarks. There are grave doubts about thelikely efficacy of the tribunal's efforts given the unstable nature of theformer Yugoslavia itself, and most significantly, the fact that many ofthose responsible for heinous crimes remain at large and some in positionsof considerable influence and power. Whatever else might be said aboutNuremberg and Tokyo, those proceedings at least succeeded in convictingsome of high official and not merely small fry like Tadic. Critics chargethat by comparison, the enormity of crimes that are likely to remainunaddressed in the former Yugoslavia mocks justice and that the tribunal'sefforts are likely to be as ludicrous as an effort to conduct Nazi war crimesprosecutions would have been in the absence of D-Day.4Less obvious legitimization issues have become clearer as a resultof the Tribunal's responses' to pre-trial motions filed in the Tadic case. Inan unsuccessful attempt to resist trial, Tadic argued that the tribunal was2. See Secretary-General's Report Pursuant to Paragraph 2 of Security CouncilResolution 808, U.N. Doc. S/25704 (1993).3. For a favorable assessment of the tribunal in light of these changes, see, e.g., Chaney,supra note 1.4. See. e.g., Kenneth Anderson, Nuremberg Sensibility: Telford Taylor's Memoirs of theNuremberg Trials, 35 HARV. INT'L L. J. 281, at 292-93 (1994).[Vol. 3:613Alvarezillegal because the United Nations drafters had not envisaged it; becausethe United Nations General Assembly was not involved in the tribunal'screation; because the text of the United Nations Charter did not grant theUnited Nations Security Council authority to create such a judicial organ;because the Council had not consistently created such tribunals in otherinstances; because the Council could not act on individuals; because therehad been no real threat to the peace; and because the Council could notdisplace national courts and therefore had illegally violated nationalsovereignty. It surprised no one that both the trial and appellate chambersof the tribunal dismissed all of Tadic's arguments and upheld the legalityof the tribunal X indeed a cynic would say that judges had little choice butto uphold the legality of the enterprise of which they were such animportant part. Nonetheless, the judges' responses demonstrated howdifficult it is to legitimize this tribunal given through traditionallylegalistic, as opposed to policy-driven, arguments.The trial and appellate chamber's diverse responses to Tadic'scontentions show that novel issues of United Nations Charterinterpretation, including contestable propositions about the reviewability ofSecurity Council decisions, are posed by the tribunal's creation andcontinued operation.From the perspective of an academic, Tadic's arguments put thetribunal's judges between a rock and a hard place. In order to justify thelegality of their tribunal, Tadic's judges found that they either had tomodestly defer from Tadic's questions in deference to an non-reviewableSecurity Council or boldly proclaim review authority over the SecurityCouncil while affirming in substance all that the Council had done. Thetrial chamber in its response of August 10, 1995, took the first tack whilethe appellate chamber took the second in its opinion issued on October 2,1995. Neither response is likely to be entirely acceptable to bothpermanent and non-permanent members of the United Nations and thechambers' opinions are provoke further debate about the viability andwisdom of the ad hoc war crimes tribunals.The weakest set of responses to Tadic's arguments came from thetrial chamber. In an opinion signed by Judge Gabrielle MacDonald of theUnited States, that chamber attempted to put off these issues by relying onthe political question doctrine imported from U.S. constitutional law.,Essentially, the trial judges demurred on Tadic's substantive arguments onthe grounds that the Security Council is all-powerful and non-reviewable.Although the heart of a criminal trial such as Tadic is the need to resolve5. Dusko Tadic, Case No. IT-94-I-T, Balkans war Cr. Trib. (Aug. 10, 1995) (hereinafter"trial chamber"), in particular paras. 6, 23-24.1997] 615ILSA Journal of Int'l & Comparative Lawthe rights of individuals X both Tadic's and the rights of his allegedvictims the trial judges opted to privilege state power embodied in theSecurity Council over the human rights integral to the tribunal's enterprise.In suggesting the Council had done presented a non-reviewable politicalquestion, the trial chamber came very close to suggesting that the judgesneed to follow the Council's dictates, even if this were to violatedefendants (or victim's) human rights or even if the Council were tomandate selective enforcement of international humanitarian law. Indeference to the likely reaction this conclusion was likely to provoke (andnot just among human rights lawyers), the trial chamber straddled anumber of inconsistent propositions to the satisfaction of no one. Thus,for example, while the tribunal affirmed that individuals gain human rightsunder applicable law, including the individual right to be tried by courtsestablished by law, it also simultaneously tried to affirm that individualshave no standing to assert these rights because states generally and theCouncil in particular have said otherwise.The most withering critique of the trial chamber's approach camefrom the tribunal itself, namely the appellate chamber. As the majority ofthe appellate judges pointed out, the trial chamber's answers to Tadic areinconsistent with international law principles granting all internationaladjudicative bodies competence de la competence - that is, the power andthe duty to determine the legality of its own jurisdiction.6 The majority ofthe appellate judges wisely decided that refusing to answer Tadic'squestions by relying a variant of the political questions doctrine would notbe a credit to the tribunal. They wisely decided in a case in which thefreedom of an individual was at stake, the tribunal's own judges needed todefend why this tribunal was as legitimate a body to render such a decisionas any national court. The appellate chamber decided that it could illafford to avoid an opportunity to justify their tribunal's existence.But while the majority of the appellate judges attempted to givemore substantive answers to Tadic's challenges, the implications of theiranswers are likely to be contested by many United Nations members aswell as the human rights community. Among the contestable conclusionsof the majority of the appellate judges were the following:1) That notwithstanding Chapter VII of the United Nations Charter,sitting judges like themselves were empowered to pronounce on thelegality of Security Council action a conclusion that permanent6. Dusko Tadic, Case No. IT-94-I-AR72, Balkens war Cr. Trib. (Oct. 2, 1995)(hereinafter appellate Chamber), in particular paras. 11-12,14, and 18.616 [Vol. 3:613Alvarezmembers of the Council are not likely to find altogether comfortingand one that the World Court itself has to date resisted;2) That (at odds with one above) the validity of Council action can bepresumed, even when not supported by either the text of the Charteror its negotiating history, particularly if supported by the Council'sprior practice a conclusion that neither nonpermanent members norsome segments of the human rights community concerned by recentCouncil actions (as with respect to the conduct of the Gulf War) arelikely to altogether favor;3) That the Security Council can delegate its functions to another body(even one that is not subject to the veto), can act prosecutionsconclusions that are as likely to prompt discomfort in permanent aswell as non-permanent United Nations members and even more so inthe human rights community;4) That "it is only for want of resources that the United Nations has toact through its Members" 7 a recipe for institutional override over anyand all sovereign rights that would have surprised the original draftersof the limited security regime which is the United Nations Charter;5) That internal armed conflicts may constitute threats to theinternational peace notwithstanding the language of article 2(4)banning only inter-state force another conclusion that is not likely towin the hearts and minds of any state with unruly internal disputeswho naively believes that such matters are within their protecteddomestic jurisdiction and is not subject to forceful Councilintervention;6) That criminal defendant's rights to be tried before courts establishedby law merely means a right to be tried by any court that respects adefendant's other procedural rights - a result at odds with theposition of human rights advocates before other tribunals. As a resultof the Tadic case, defenders of the tribunal may now find it necessaryto defend contestable readings of the United Nations Charter and thepowers of the Security Council which go to the heart of post-ColdWar debates about that body's newly flexed muscles. Today, theUnited Nations finds itself in a quandary with respect to legitimacyand future direction of the Security Council.7. Id. at 36.1997]618 ILSA Journal of Int'l & Comparative LawIncreasingly, non-permanent members question the representativenature of that body as well as the scope of many of its post-Cold Warprecedents. As is clear from recent opinions of the World Court as well asscholarly debates, many United Nations members resist giving that bodyunchecked authority as much as permanent veto-wielding states such as theUnited States resist any suggestion that what the Security Council does isultimately reviewable by any court even one that the Council itself hascreated.8  The appellate body's response to Tadic's pre-trial motionsmanages to offend all sides in this debate without settling the underlyingissues.Of more immediate concern to litigants in the Balkan tribunal isthat the appellate body's response to Tadic does not answer importantquestions concerning the future relationship between that tribunal and theSecurity Council. While the tribunal is, of course, financially dependenton the Council, as well as on the generosity of particular United Nationsmembers, it remains unclear the extent to which the rights of defendantsand victims remain legally subservient to the demands of the Council oreven to the General Assembly. Could those political bodies interfere withon-going trials or investigations? Does the Security Council retain theauthority to, for example, instruct the tribunal not to try prominent Serbsbecause of the supposed threat to the peace process or to the reconciliationof the country? Could the Council direct a United States national court notto pursue the on-going civil case against Karadzic?9 If Security Council orGeneral Assembly override remains a possibility, what does that possibilitynever mind its exercise mean for the fulfillment of the tribunal's grandgoals, especially its claim to be non-partial and devoted to the equalapplication of established law?These are not the only difficult issues that have been presented bythis initial prosecution. In response to Tadic, the tribunal has alsodetermined that charges can be brought against Tadic even for actscommitted in the course of an internal conflict. The judges specificallyfound that the nexus required at Nuremberg between crimes against peaceand crimes against humanity is no longer required by modem internationallaw.'0 Because of the nature of the Balkan conflict, the tribunal has seen fit8. For a review of these debates both on the World Court and off, see, e.g., Jose E.Alvarez, Judging the Security Council, 90 AM. J. INT'L. L. (1996).9. Kadic v. Kadic, 70 F.3d 232 (2d Cir. 1995).10. Appellate Chamber, Case No. IT-94-I-AR2, paras. 138-42.[Vol. 3:613Alvarezto go beyond the Nuremberg precedents, thereby raising some doubtsabout the application of ex post facto law."Finally, the trial court's answer to at least one pre-trial motion bythe prosecutor in the Tadic reveals one likely point of contention withrespect to the perceived fairness of the tribunal's procedures. The trialchamber ruled that the prosecutor is free to present defense witnesseswithout identifying these to either Tadic or his defense counsel.'2 Whilethe prosecutor has decided not to take advantage of this ruling duringTadic's trial, the possibility that she may resort to unidentified witnesses inother cases involving, for example, charges of mass rape is likely toprompt a barrage of criticism by many common law lawyers to whomcross-examination is sacred. Indeed, one prominent U.S. lawyer, a formerlegal adviser to the State Department, has argued that if this were to occur,he would support amendment of the United Nations Charter to add a bill ofrights." On the other hand, should the prosecutor respond to such fears bydropping charges of mass rape against other defendants, she is apt to becriticized for ignoring one crucial aspect of ethnic cleansing as practiced inthe former Yugoslavia: its brutally gendered nature. Indeed, if futuretrials fail to deal with the rape charges because of the difficult evidentiaryissues, historians are likely to say that this tribunal sanitized ethniccleansing as much as Nuremberg did the Holocaust. Those who have beenraped in order to cleanse parts of the former Yugoslavia will not forgivethis tribunal if it ignores their stories or if it fails to condemn the guilty forthis particular crime. For many, a failure to acknowledge this aspect ofethnic cleansing would betray one of the tribunal's principal goals: anaccurate rendering.Some of the doubts about the legitimacy of this tribunal emergebecause its composition is as cosmopolitan as it is. Some of the doubtsarise because of the judges' differing answers to the pre-trial motions madein the Tadic case. Even those most concerned with the tribunal'slegitimacy its judges individually differ on such basic questions as thereviewability of Security Council decisions, the nature of the underlying11. For more thorough discussion of some of the tribunal's innovative findings with respectto international humanitarian law, see, e.g., Theodore Meron, The Continuing Role of Custom inthe Formation of International Humanitarian Law, 90 AM. J. INT'L L. 238 (1996); ChristopherGreenwood, International Humanitarian Law and the Tadic Case, 7 EUR. J. INT'L L. 265 (1996).Cf. DAVID LUBAN, LEGAL MODERNISM 349-357 (1994) (discussing the ex post facto problem asapplied to Nuremberg).12. Dusko Tadic, Case No. IT-94-I-T (Decision on Prosecutors motion Aug. 10, 1995)(Stephens, J. dissenting in part).13. Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against, 90 AM. J.INT'L L.1997] 619620 ILSA Journal of Int'l & Comparative Lawconflict in the Balkans, the extent to which internal conflicts can be said totrigger threat to the peace, and the need to resort to unidentified witnesses.Yet, as the dissent of Judge Pal in the Tokyo trials" should remind us,some degree of judicial unanimity between east and west, north and southmay be necessary if this international tribunal is to retain (or acquire) trueinternational legitimacy. The Tadic case shows that we have not yetreached closure with respect to fundamental jurisprudential issues aboutthis tribunal. Instead, one gets the strong sense that, at least with respectto some basic issues, Tadic's judges simply turned to circular argumentssuch as their all-purpose answer that the legality of the tribunal needs to beaffirmed because "the very purpose of the creation of an internationalcriminal jurisdiction" would otherwise be defeated."5Such arguments, though grounded in political necessity, encouragea search for alternatives to ad hoc war crimes tribunals created on themere whim of the Security Council. The proceedings in Tadic have notstemmed a growing skepticism that, despite the stenuous efforts of itsdrafters, the Balkan tribunal has not (yet) overcome the flawed legacy ofNuremberg.14. Justice Pal, Dissenting Opinion, in 21 Tokyo War Crimes Trial (R. Pritchard & S.Zaide, eds. 1981).15. Dusko Tadic, Case No. IT-94-I-AR72, Balkans war Cr. Trib. (Oct. 2, 1995).[Vol. 3:613

The Likely Legacies Of Tadic

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The Likely Legacies Of Tadic

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