International Criminal Law Developments in the Case Law of the ICTY (International Humanitarian Law Series - Volume 6)

INTERNATIONAL CRIMINAL LAW

DEVELOPMENTS IN THE CASE LAW

OF THE ICTY

International Humanitarian Law Series

VOLUME 

Editors-in-Chief

Professor Christopher Greenwood

Professor Timothy L.H. McCormack

Editorial Advisory Board

Professor Georges Abi-Saab

H.E. Judge George H. Aldrich

Madame Justice Louise Arbour

Professor Ove Bring

Professor Antonio Cassese

Professor John Dugard

Professor Dr. Horst Fischer

Dr. Hans-Peter Gasser

Professor Leslie C. Green

H.E. Judge Geza Herczegh

Professor Frits Kalshoven

Professor Ruth Lapidoth

Professor Gabrielle Kirk McDonald

H.E. Judge ɩeodor Meron

Captain J. Ashley Roach

Professor Jiri Toman

ɩe International Humanitarian Law Series is a series of monographs and edited

volumes which aims to promote scholarly analysis and discussion of both the theory

and practice of the international legal regulation of armed conlict.

ɩe series explores substantive issues of International Humanitarian Law including,

• protection for victims of armed conlict and regulation of the means and methods

of warfare

• questions of application of the various legal regimes for the conduct of armed

conlict

• issues relating to the implementation of International Humanitarian Law

obligations

• national and international approaches to the enforcement of the law and

• the interactions between International Humanitarian Law and other related areas

of international law such as Human Rights, Refugee Law, Arms Control and

Disarmament Law, and International Criminal Law.

International Criminal Law

Developments in the Case Law

of the ICTY

Gideon Boas & William A. Schabas, editors

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Table of Contents

Foreword by Judge Richard May vii

Preface ix

Abbreviations xiii

Table of Cases xv

. A Code of Evidence and Procedure for International

Criminal Law? ɩe Rules of the ICTY 

Gideon Boas

. ɩe Defence 

Michael Bohlander

. ɩe Role and Status of the Victim 

Pascale Chiflet

. Accountability for Arrests: ɩe Relationship between

the ICTY and NATO’s NAC and SFOR 

Dzomas Henquet

. An Emerging Gender Perspective on International Crimes 

Michelle Jarvis

. Deining Human Rights in the Arena of International

Humanitarian Law: Human Rights in the Jurisprudence

of the ICTY 

Gabrielle McIntyre

. Crimes of the Commander: Superior Responsibility

under Article () of the ICTY Statute 

Daryl A. Mundis

vi Table of Contents

. Decisions of National Courts as Sources of International

Law: An Analysis of the Practice of the ICTY 

André Nollkaemper

Index 

vi Table of Contents

Foreword

When the history of the ICTY comes to be written, its contribution to the

jurisprudence of international criminal law will be seen as among its signii￾cant achievements. Like the builders of old, the pioneers of the Tribunal found

a quarry and turned it into the makings of a temple. However, at the time of

writing, the foundations are just being built. ɩere has been important work in

many disparate ields. Much has been done to deine the substantive law, for

instance, the elements of the crimes and the types of responsibility. A code of

procedure and evidence has been established and there have been important

decisions on such matters as hearsay and written evidence. ɩe notion of fair

trial rights has been developed with decisions such as those on the right of the

accused to examine witnesses and equality of arms. A system for the protec￾tion of victims and witnesses has been set up, a development which may be

said to be unique and from which it is to be hoped others can learn.

But, there is no point in building a temple if nobody sees it or uses it. While

sterling work has been done in some quarters to collect, publish and publicise

the decisions of the Tribunal, and a certain amount of academic commentary

has been engendered, the fact remains that too many decisions go unheeded. If

they are given by Trial Chambers, and in some cases by the Appeals Chamber,

they may go into the iles and not be properly reported. ɩe fate of oral deci￾sions is even more summary. ɩere is thus, as yet, no comprehensive collection

of these decisions and no easily accessible way to get at them.

It is, therefore, particularly welcome that this analysis of developments in

the case law of the Tribunal is being published now. It is written by authors

with much experience of the work of the Tribunal and can, therefore, be relied

upon to shed light on its practice. Analysis of the decisions will help to publi￾cise them. Discussion and criticism of the case law will contribute to its devel￾opment. In the end, those who worked in the Tribunal will be able to say, as

the great architect said of his masterpiece: ‘si monumentum requiris, circumspice’

– if you want a monument, look around.

Richard May

Judge of the International Criminal Tribunal for the former Yugoslavia

Boas & Schabas, eds, International Criminal Law Developments in the Case Law of the ICTY, vii-viii.

©  Kluwer Law International. Printed in the Netherlands

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Preface

ɩe International Criminal Tribunal for the former Yugoslavia (ICTY) is a

profoundly important institution in the development of international human￾itarian law and criminal law in general. Its arrival heralded a newfound will￾ingness of the international community to bring to book perpetrators of war

crimes and gross or systematic violations of human rights.

ɩere have been precursors – the International Military Tribunal at

Nuremberg is the most celebrated – but the General Assembly’s call for the

creation of a permanent court in article VI of the  Genocide Convention

stalled during the Cold War. ɩe idea of an international criminal court was

only revived in late-. ɩen, as work on the project moved forward, the

world was plunged into a brutal conlict that focussed attention on issues of

impunity and accountability, and on the contribution that justice might be

able to make to peace. In May , the United Nations Security Council

established the ICTY.

During the course of its relatively brief existence, the ICTY has developed

many areas of law, and deined and explained legal norms, sometimes for the

irst time. Even if the legal issues with which it was confronted had already

been addressed judicially, the precedents were nearly half a century old. While

still relevant in many respects, these ancient authorities had to be read in light

of evolving international, human rights and criminal law. By , due proc￾ess standards were more rigorous, and States were inally willing to punish a

broad range of war crimes and crimes against humanity committed in internal

conlicts, and even in peacetime.

After nearly a decade of operation, the Tribunal is a vigorous and dynamic

institution, but nevertheless a temporary one. It is in “middle age”. Measures

are being taken to expedite proceedings, all of this with an eye on retirement.

And in parallel, the International Criminal Court is inally being established.

ɩe new Court will owe a great debt to the ICTY, which has pioneered the

prosecution of international crimes in so many ways.

As the title suggests, the aim of this book is to discuss some of the

international criminal law developments that have taken place in the practice

and procedure of the Tribunal. It makes no claim to an exhaustive treatment of

Boas & Schabas, eds, International Criminal Law Developments in the Case Law of the ICTY, ix-xi.

©  Koninklijke Brill NV. Printed in the Netherlands

x Gideon Boas and William A. Schabas Preface xi

the issues. Rather, it is a contribution to a modest but increasingly substantial

body of literature.

ɩe book contains eight chapters dealing with a range of issues. Chapter ,

by Gideon Boas, discusses whether the Rules of Procedure and Evidence of

the Tribunal represent a credible code of evidence and procedure for inter￾national criminal law. In doing so, the unique rule-making powers of the

Tribunal are analysed, together with the substance of some of its rules of

evidence. It considers the dialectic between the common law and Romano￾Germanic systems of criminal law which is relected in the Tribunal’s Rules of

Procedure and Evidence, and contemplates the draft Rules of Procedure and

Evidence of the International Criminal Court.

In Chapter , Michael Bohlander reviews the law and jurisprudence of the

Tribunal concerning the position of the defence (the accused and counsel). He

considers recent eĊorts to regulate, and to self-regulate, the profession.

Pascale ChiČet, in Chapter , focuses on the status, role and rights of

victims before the Tribunal, and analyses issues relating to victim protection,

participation and reparation. Chapter , by ɩomas Henquet, concerns the

question of illegal arrest raised by some accused before the Tribunal, and

considers the agency principle applied in international and national laws and

the obligations of States under Article  of the Tribunal’s Statute. Chapter

, by Michelle Jarvis, analyses the recent emergence of gender perspectives in

international criminal law and the development and treatment of these issues

in the case law of the Tribunal.

Gabrielle McIntyre, in Chapter , examines the role of human rights

case law, beginning with the much-celebrated dismissal of precedents of

the European Court of Human Rights in one of the earliest decisions of the

ICTY. Daryl Mundis, in Chapter , examines issues of criminal responsibil￾ity under the Tribunal’s Statute. He analyses the jurisprudence of the Tribunal

relating to the responsibility of superiors as well as the development and

expansive use of the criminal law doctrine of joint criminal enterprise in the

Tribunal’s jurisprudence.

In Chapter , Professor André Nollkaemper looks at the development of

general principles of law by the Tribunal and, more particularly, the question

of whether the Tribunal can or should borrow such principles from national

legal systems and how it has done so.

ɩroughout the book are threads concerning the development and

application of international criminal law not only by the ICTY, but also by the

ad hoc International Criminal Tribunal for Rwanda and the new International

Criminal Court. Liberal reference is made to the Statute and Rules of

Procedure and Evidence of the International Criminal Court. Prospective

issues and diċculties likely to confront that Court when it commences

operation in  are also considered.

ɩe book is written by academics and practitioners. With one exception, all

of the contributors are current or former employees of the ICTY. Each arti￾cle begins with the customary disclaimer, of course, although it goes without

x Gideon Boas and William A. Schabas Preface xi

saying that these are personal views and they do not necessarily relect those

of the Tribunal or the United Nations. But clearly, the authors bring a unique

expertise and a certain amount of information and perspective that few who

have not had this experience will share. ɩose familiar with the literature will

know that a considerable amount of commentary on the Tribunal has indeed

been penned by insiders. ɩis is both a strength and a weakness. Sometimes

the insiders are a bit too defensive, and have diċculty standing back and test￾ing the material with a suċciently critical and independent eye. Sometimes,

though, we are also left with the distinct impression that the Tribunal is a

hotbed of legal debate. By and large, the public is usually exposed to this in the

judgments and decisions of Trial Chambers and the Appeals Chamber. It is

only when lawyers who work or have worked within the Tribunal change hats,

so to speak, and write as academics, that we can glimpse the unpublished dis￾sents and, perhaps, the precedents of tomorrow. But we will leave this assess￾ment to the readers.

Gideon Boas, ɩe Hague

William A. Schabas, Oughterard

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Abbreviations

CSCE Conference on Security and Cooperation in Europe

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECMM European Community Monitoring Mission

FRY Federal Republic of Yugoslavia

HRC Human Rights Committee

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

ICRC International Committee of the Red Cross

ICTY International Criminal Tribunal for the Former Yugoslavia

ICTR International Criminal Tribunal for Rwanda

IFOR Implementation Force

IHL international humanitarian law

ILC International Law Commission

IMT International Military Tribunal

IMTFE International Military Tribunal for the Far East

LRTWC Law Reports of the Trials of the War Criminals

xiv Abbreviations

NAC North Atlantic Council

NATO North Atlantic Treaty Organisation

NGO non-governmental organisation

OLAD Oċce of Legal Aid and Defence Matters

OSCE Organisation for Co-operation and Security in Europe

OTP Oċce of the Prosecutor

PCIJ Permanent Court of International Justice

POW prisoner of war

SACEUR Supreme Allied Commander Europe

SFOR Stabilisation Force

SHAPE Supreme Headquarters Allied Powers Europe

TWC Trials of War Criminals Before the Nuremberg Military

Tribunals Under Control Council Law No. 

UK United Kingdom

UN United Nations

UNCC United Nations Compensation Commission

UNHCR United Nations High Commissioner for Refugees

UNTAES United Nations Transitional Administration for Eastern

Slavonia, Baranja and Western Sirmium

US United States

USA United States of America