On the Current Trends towards

Criminal Prosecution and

Punishment of Breaches of
International Humanitarian
Law
Antonio Cassese*

This article focuses on the problems of, and prospects for, the enforcement of international
humanitarian law through the prosecution and punishment of individuals accused of
violations of international humanitarian law by international or national tribunals. The
author first examines the factors that historically prevented the development of international
tribunals and then looks at recent events, namely the end of the Cold War and the subsequent
unleashing of unparalleled forces of nationalism and fundamentalism in different parts of the
world, which have created an increased willingness on the part of states to institute
mechanisms, both at the international and domestic levels, for international criminal justice.
With the establishment of the ad hoc International Criminal Tribunals for the former
Yugoslavia and for Rwanda, the enforcement of international humanitarian law has moved
into a new and more effective phase. Yet, the clear merits of individual criminal prosecution
by international tribunals cannot simply override the very real problems and obstacles they
face. The author examines these problems, arguing that state sovereignty is a major obstacle
to the effective enforcement of international criminal justice. Nevertheless, the author
concludes that justice can be done at the international level and that international criminal
tribunals are vital in the struggle to uphold the rule of law.

Presiding Judge. Trial Chamber n. International Criminal Tribunal for the Former Yugoslavia. The
Hague. The Netherlands;formerPresident of the Tribunal (199 3-199 7): Assodt of the Insntut de Droll
mteroattonaL ICIX ChurchMplein. 1. P.O. Box 13888.2501 EW, The Hague. The Netherlands. The
opinions expressed In thli paper are personal to the author and m no way engage the Tribunal. The
Invaluable assistance of Knthlfm Lawand and Suxannah Unton is gratefully acknowledged.

European Journal of International law 9 (1998), 2-17

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Abstract

Cumnt Trends towards Criminal Prosecution

1 Introduction: International Criminal Prosecution as a

Means of Enforcing International Humanitarian Law

See, eg.. F. Kalshoven, Belligerent Reprisals (1971).

See Geneva Con ventkmforthe Amelioration of the Conditions of the Wounded and Skk In Aimed Forces
In the Field of August 12. 1949 ("First Geneva Convention'). Article 46: Geneva Convention for the
Amelioration of the Conditions of the Wounded. Sick and Shipwrecked Members of Armed Forces at Sea
of August 12. 1949 ('Second Geneva Convention'). Article 47: Geneva Convention Relative to the
Treatment of Prisoners of War of August 12. 1949 (Third Geneva Convention'). Article 13(3): Geneva
Convention Relative to the Protection of Civilian Persons In Time of War of August 12. 1949 ("Fourth
Geneva Convention'). Article 33(3) and 46: Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflicts ('Protocol I'). Article 5
(thefourGeneva Conventions will hereinafter collectively be referred to as '1949 Geneva Conventions').
These bans on reprisals against protected persons/otyects can be said to have become part of customary
International law.
On the Illegality of reprisals pursuant to a developing 'principle of humanity' and non-derogabk human
right! norms, see Provost. 'Reciprocity in Human Rights and Humanitarian Law'. BYbIL (1994) 383. at
413.
This mechanism is provided for In Article 8 of the First, Second and Third Geneva Conventions, and
Article 9 of the Fourth Geneva Convention, and also In Article 5 of Protocol L

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As Is well known, various means are available for enforcing international humanitarian law. First there is the traditional, but controversial, method of reprisals,
whereby a belligerent employs illegal means of warfare in response to violations of the
laws of war by its adversary. Reprisals are resorted to in order either to induce the
adversary to terminate its unlawful conduct or to 'punish' the adversary for the
purpose of deterring any further breach. This method of enforcement has been
criticized on the ground that it more often than not leads to an escalation of conflict
and, it is argued, it often proves to be ineffective.1 Further, the 1949 Geneva
Conventions and Additional Protocol I2 severely limit the scope of this enforcement
method. In addition, reprisals can under no circumstances take the form of violations
of human rights, genocide or 'crimes against humanity'.3
Second, respect for international humanitarian law can be sought through specific
mechanisms agreed upon by the parties to a conflict such as the designation of a
Protecting Power to secure the supervision and implementation by the belligerents of
their international obligations.4 Granted, the Protecting Power aims to protect the
interests of the parties, but it is a mechanism that may be activated in order to
contribute to the enforcement of international humanitarian law. This method.

E/ZL9(1998). 2-17

Protecting Powers were resorted to In three cases: In 1956 In the Suex conflict (only, however, between
Egypt on the one hand and France and the UK on the other): In the short conflict between India and
Portugal over Goa In 1961: and In the Indo-Pakistani war In 1971. although India soon withheld Its
consent In relation to war crimes prosecution, one author posits that '[l]f the task or the Protecting
Powers, and of the substitute humanitarian organisation such as the 1CRC, Includes that of scrutiny,
might It not also Include that of gathering evidence of violations of the Conventions for use In subsequent
prosecutions? Any such overt action by a Protecting Power might well lead one of the belligerents to
declare It non grata and terminate Its functions. The consequences for the Protecting Power are not
far-reaching. But tor the ICRC the assumption of a scrutiny role Involving the collection of evidence poses
great dangers.' See Shearer. 'Recent Developments In International Criminal Law Affecting Enforcement
of International Humanitarian Law', in Australian Defence Studies Centre. Selection of Papers Delivered to
the Second Regional Conjercnce on International Humanitarian law, 1 2 - 1 4 December 1994, at 7 2 - 7 3 .
Drid, at 75 et sea.
See SC Res. 780 (1992).

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however, has proved to be a relative failure, as it has only been resorted to in three
cases since the entry into force of the 1949 Geneva Conventions.5
A further means of promoting compliance with International humanitarian law is
the utilization of fact-finding mechanisms, such as the 'Fact Finding Commission'
provided for In Additional Protocol I. One of the advantages of fact-finding is that it
enables the creation of a public 'record' of violations of international humanitarian
law, which can assist in war crimes trials, thereby contributing to enforcement.6 The
Commission of Experts set up by the Secretary-General of the UN at the request of the
Security Council pursuant to Resolution 780 (1992) to Investigate and report on
evidence of grave breaches of the 1949 Geneva Conventions and other violations of
international humanitarian law in the former Yugoslavia falls within this category.
With the establishment of the Commission of Experts, the Security Council was
seeking to deter the parties from violating their obligations under international
humanitarian law.7 It was subsequent to the findings of this Commission of Experts
that the Security Council decided to establish the International Criminal Tribunal for
the Former Yugoslavia (ICTY).
This brings us to the next level of enforcement of international humanitarian law,
through criminal jurisdiction: that is, through the prosecution and punishment by
national or international tribunals of individuals accused of being responsible for
violations of international humanitarian law. This article will focus on the problems
of, and prospects for, this method of enforcement This method distinguishes Itself
from the others described above in that it is concerned with individual criminal
responsibility as opposed to state responsibility. Its aim is to enforce the obligations of
individuals under International humanitarian law, whereas the preceding methods
concentrate on the enforcement of the obligations of states. However, as I shall
demonstrate later in this paper, the principal problem with the enforcement of
International humanitarian law through the prosecution and punishment of
individuals is that the implementation of this method ultimately hinges on, and
depends upon, the goodwill of states.

Current Trends towards Criminal Prosecution

2 The Failure of Prosecution through National Jurisdiction

While It Is doubtful. In the absence of dear state practice and oplnio juris, that states have a duty under
customary international law to enforce International humanitarian law through criminal lurlsdlcnon,
states have Jurisdiction to prosecute In the absence of a treaty pursuant to principles such as the
universality prindpk and the passive personality principle. The principles on suppression of war crimes
in the 1949 Geneva Conventions are said to be 'declaratory of the obligations of belligerents under
customary International law to take measures for the punishment of war crimes committed by all
persons, Including members of a belligerent's own armed forces': United States. The Law of Land Warfare,
Department of the Army FlddManuaL July 1956. at 181. para. 5O6(b). The obligation to prosecute Is also
said to arise by corollary with the right to an effective remedy: the obligation on the state to provide
effective remedies to persons within Its Jurisdiction is complemented by the obligation to prosecute
persons responsible for such violations, whether occurring In conflict or otherwise.
See also the Convention on the Prevention and Punishment of the Crime of Genocide (1948) (Genocide
Convention) at Articles V and VI and the International Convention on the Suppression and Punishment
of the Crime of Apartheid (1973) (Apartheid Convention) at Articles IV and V. Both conventions contain
clear obligations on states parties to introduce and take the necessary measures to prosecute and punish
perpetrators. With respect to 'grave breaches' of their provisions, the 1949 Geneva Conventions and
Protocol I require states:
(I) to enact legislation necessary to provide effective penal sanctions for persons committing or ordering
the commission of grave breaches; and
(U) to search for the persons alleged to have committed or ordered the commission of grave breaches and
to try such persons before their own courts, or alternatively to hand them over to another
contracting state that has made oat a primafade case.

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The obligation of states to prosecute and punish persons accused of serious violations
of International humanitarian law through their respective national jurisdictions
arises out of their treaty obligations,8 most notably those under the 1949 Geneva
Conventions.9
As is commonly known, the jurisdiction provided by the 19 49 Geneva Conventions
is universal in that those suspected of beingresponsiblefor grave breaches come under
the criminal jurisdiction of all states parties, regardless of their nationality or the locus
commissi delicti. In addition. Article 88 of Protocol I requires that states parties provide
mutual assistance with regard to criminal proceedings brought in respect of grave
breaches to the 1949 Geneva Conventions or to Protocol I, including cooperation In
the matter of extradition.
However, these provisions on national jurisdiction over grave breaches have been,
at least until recent years, a dead letter. In situations of armed conflict abroad, a state
Is generally reluctant to prosecute its own personnel, especially when it is on the
'winning side'. In such cases, a state may also be disinclined to prosecute enemy
personnel because such legal actions carry the risk of exposing war crimes committed
by the state's own personnel. As for crimes committed In an armed conflict In which a
state has not participated, both political and diplomatic considerations and the
frequent difficulty of collecting evidence normally induce state authorities to refrain
from prosecuting foreigners.

EJIL9 (1998), 2-17

are generally Incompatible with the duty of States to Investigate such acts; to
guarantee freedom from such acts within their Jurisdiction; and to ensure that they do not
occur In the future. States may not deprive individuals of the right to an effective remedy
Including compensation and such full rehabilitation as may be possible.11

Until very recently, the few trials that had been held within national criminal
jurisdictions in respect of violations of norms of international humanitarian law
related to crimes committed during the Second World War. The trials in France of
Barbie, Touvier and Papon for crimes against humanity are prominent examples.
However, following the establishment of the International Criminal Tribunal for the
Former Yugoslavia, and plausibly as a result of the incentive created by that Initiative,
national courts in Denmark, Germany, Austria and Switzerland, among others, have
begun to try and prosecute persons accused of committing atrocities in the former
Yugoslavia. In 1994, for example, Danish courts exercised universal Jurisdiction to

As occurred In several South American countries for gross violations of human rights. For discussion on
the validity of amnesty/Impunity lor gross violations of human rights In International law. see N.
Roht-Aniaxa (ed). Impunity and Human Rights In Intemationd Law and Practice (1995) and Orcntllcher,
"Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime', 100 Yak LJ
(1991)2537.
See WooUacott, 'Reconciliation, or Justice and Ashes?'. The Guardian, 1-2 February 1997, quoting
Bishop Desmond Tutu In relation to the choice faced by law-makers in South Africa after Apartheid. In
this regard, lor many countries facing such a 'choice', an International criminal court may be the only
feasible mwinB of ensuring that Justice is done, to the extent that amnesty ^nnW national criminal
Jurisdiction has no rfffc* on Individual criminal responsibility In the eyes of international humanitarian
law.
R. H. Jackson. The N&mberg Case, as Presented by Robert H. Jackson (1947). at 8.
United Nations Human Rights Committee General Comment No. 20 In relation to Article 7 of the
International Covenant on Gvll and Political Rights.

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Both in the context of International conflicts and-civil wars, political motivations

may often lead states to prefer amnesty to prosecution.10 As Bishop Desmond Tutu,
Head of the Truth and Reconciliation Commission of South Africa, put it, referring to
gross violations of human rights, political leaders choose 'reconciliation' over 'Justice
and ashes'.11 Leaving aside the question of the political advisability of this choice,
granting amnesty to persons responsible for grave breaches of international
humanitarian law and mass violations of human rights raises serious moral and legal
objections. Moral because, as Justice Robert Jackson commented in relation to the trial
at Nuremberg, letting major war criminals live undisturbed to write their 'memoirs' in
peace 'would mock the dead and make cynics of the living'.12 And legal because the
validity of such amnesty is doubtful. Arguably, the prohibition of such crimes and the
consequent obligation of states to prosecute and punish their authors should be
considered a peremptory norm of international law {jus cogtns): hence, states should
not be allowed to enter Into international agreements or pass national legislation
foregoing punishment of those crimes. Furthermore, the Human Rights Committee
has held that

Current Trends towards Criminal Prosecution

try and convict Refik Saric, a Bosnian refugee in Denmark, for atrocities committed in
Dretelj camp, Bosnia-Herzegovina.14

3 The Failure of Prosecution through International

Jurisdiction Prior to 1993

4 The Turning Point: The New World Order

With the end of the Cold War, the animosity that had dominated international
relations for almost half a century dissipated. In its wake, a new spirit of relative
optimism emerged, stimulated by the following factors:
(i) there has been a clear reduction in the distrust and mutual suspicion that
frustrated friendly relations and cooperation between the Western and Eastern
blocs;
(U) the successor states to the USSR Russia and the other states participating in
Confederation of Independent States are coming to accept and respect some
basic principles of international law;
(ill) there is unprecedented agreement in the Security Council and increasing
convergence in the views of its five permanent members, with the consequence
that this institution is able to fulfil its functions more effectively.
14

"

"

Tribunal. January/February 1996, DO. 2. at 7.

J. Pfctet, The Geneva Conventions of 12 August 1949: Commentary on Artlde 129, voL m . at 624. This
Interpretation Is supported by Rfiling, 'Aspects of the Criminal Responsibility for Violations of the Laws of
War'. In A. Cassese (ed.). The New Humanitarian Law oj Armed Conflict, voL 1 (1979). at 2 0 0 - 2 0 1 : Draper
disagrees: The modem system of penal repression of "grave breaches" has reduced the competent
Jurisdiction exclusively to the Courts of the Detaining Power'. See Draper, T h e Implementation and
Enforcement of the Geneva Conventions of 1949 and of the Two Additional Protocols of 19 78 [sic] 1 ,164
RdC (1979-flI) 38. at 4 1 - 4 2 .
Article VI of the Genocide Convention, which provides that 'Persons charged with genoctrir shall be
tried . . . by such International penal tribunal as may have Jurisdiction with respect to those Contracting
Parties which shall have accepted its Jurisdiction'.

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While the 1949 Geneva Conventions do not expressly provide for the prosecution of
offenders before an international tribunal, neither do they exclude 'handing over the
accused to an international criminal court whose competence has been recognised by
the Contracting Parties'.15 This mechanism is expressly provided for In Article VI of
the Genocide Convention and Article V of the Apartheid Convention.16
Nevertheless, the Cold War in international relations from the 1960s until the
beginning of the 1990s made it impossible for international humanitarian law to be
enforced through such international Judicial institutions. This paralysis, characterized by the mutual suspicion and distrust of the Western and Eastern blocs, also
triggered an obsession with non-interference in domestic affairs. In this climate, the
likelihood of establishing an international criminal court was very remote.

EJR 9 (1998). 2-17

5 The Post-Cold-War Twin-Track: The Establishment of Ad

Hoc International Tribunals and Work on the Establishment
of a Permanent International Criminal Court
In response to major violations of international humanitarian law since the end of the
Cold War, the Security Council has set up ad hoc Tribunals pursuant to Its power to
decide on measures necessary to maintain or restore international peace and security:
in 1993 the International Criminal Tribunal for the Former Yugoslavia, and In 1994
the International Criminal Tribunal for Rwanda (ICTR). Moves towards the
establishment of an international tribunal to prosecute and punish war crimes

For example, the Vietnam War. Cambodia under Pol Pot civil wars In Guatemala. H Salvador,
Afghanistan, Angola and Monmbique.
UN Doc S/1994/674.

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It is common knowledge that, despite the obvious problems of the Cold War era, the
two power blocs did guarantee a modicum of international order to the extent that
each of the superpowers acted as policeman and guarantor of order in its respective
bloc. The collapse of this structure of international relations ushered in a wave of
negative consequences. It has entailed a fragmentation of international society and
intense disorder which, coupled with rising nationalism and fundamentalism, has
resulted in a spiralling of (mostly) internal armed conflict with much bloodshed and
cruelty. The ensuing implosion of previously multi-ethnic societies, such as the former
Yugoslavia and Rwanda, has led to gross violations of international humanitarian
law on a scale comparable to those committed during the Second World War, which
have shocked the conscience of the world. To be sure, the Cold War era witnessed
many such excesses,17 but it is only now with the new 'harmony' among the Big Five,
together with intense media coverage of such events, that unprecedented opportunities have been created for the prosecution and punishment of those responsible for
serious violations of international humanitarian law.
In this context, it should not come as a surprise that the end of the Cold War
brought with it a revival of proposals for the establishment of a permanent
international criminal court, an idea first mooted in the aftermath of the First World
War and, as discussed above, envisaged in the Genocide and Apartheid Conventions.
To quote the Final Report of the Commission of Experts set up under the terms of
Resolution 780 (1992) of the Security Council, 'since the nations are expecting a new
world order based on International public order, there is a need to establish permanent
and effective bodies to dispense International justice'.18 In other words, a new world
order based on the rule of International law.

Current Trends towards Criminal Prosecution

committed by Iraqi forces in Kuwait, an idea first mooted in the autumn of 1990,19
seem once more to be gaining momentum.20
The major merits of criminal prosecution and punishment by an international
criminal court can be stated as follows.
(i) The purpose of an impartial tribunal is to determine the individual criminal
responsibility of individual offenders. Instead of focusing on collective guilt, it aims
to identify individual responsibility. Thus, it rejects the tendency in times of
conflict to blame an entire people for the crimes committed by certain individuals
fighting in its name. This individual focus may also have a cathartic or healing
effect and may contribute to the creation of peace.
(ii) One of the most important merits of an international tribunal lies in its ability to
hold accountable those who violate international humanitarian law and, in so
doing, to uphold the rule of international law. As stated by the eminent Dutch
international jurist B.V.A. Roling,
the foremost essential function of criminal prosecutions [Is] to restore confidence In the rule
the community, which relation is disturbed by the commission of crimes. If crimes are not
punished, the confidence in the validity of the values of the community is undermined and
shaken.21

In calling the offenders to account an international criminal tribunal may serve

to fill the vacuum left by national legislation on amnesty, to the extent that a
grant of amnesty by a national authority may turn out to have no effect on
individual criminal responsibility in international law. An international criminal
tribunal may thus do justice where national jurisdictions are unable to do so and
where victims would otherwise have no remedy.
(ill) The 'judicial reckoning' of perpetrators of serious violations of international
humanitarian law before an Independent tribunal, composed of judges of various
nations not parties to the conflict and applying 'impartial justice', can serve to
blunt the hatred of the victims and their desire for revenge.
(iv) This easing of tensions through the meting out of impartial justice can, in turn,
create the conditions for a return to peaceful relations on the ground.
(v) The proceedings of an international criminal tribunal build an Impartial and
objective record of events. This record differs fundamentally from that established
by a fact-finding commission (see section 1 above), in that it has passed the
rigorous test of judicial scrutiny, that is, the application of a tribunal's strict rules
of admisslbillty of evidence. In this regard, investigations conducted with a view
For a review of efforts made with regard to the creation of an International court to try Iraqi leaders for
crimes committed during the Iraqi invasion of Kuwait and the ensuing Gulf War, see The Path to The
Hague Selected Documents on the Origins of the 1CTY (1996).
Recent efforts Include the International 'Campaign to Indict Iraqi War Criminals', see 'All-party Call to
Try Saddam'. The Guardian, 16 January 1997.
RSlng. 'Criminal Responsibility for Violations of the Laws of War'. 12 Revue Beige (k Drolt International
(1976) 8. at 2 2 .

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of law. The legal order Is the positive Inner relation of the people to the recognised values of

10

E/H-9 (1998), 2-17

to prosecution before an International criminal tribunal are much more

far-reaching and thorough than those undertaken by a fact-finding commission.
Thus, the record of an international tribunal is also of crucial value as a historical
account of events.
(vi) The holding of trials is a clear statement of the will of the international
community to break with the past (rompre avec le passi) by punishing those who
have deviated from acceptable standards of human behaviour. In delivering
punishment the international community's purpose is not so much retribution
as stigmatization of the deviant behaviour.

6 The Problems of International Criminal Courts as a

Means of Enforcing International Humanitarian Law

22

See te example tteAddrca by the Pratfort erf the ICTYtotittG

and the Fourth Animal Report of the ICTY, 7 August 1997. UN Doc. A/52/375. S/1997/729.

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The problems faced by the ICTY demonstrate the difficulties in enforcing international
humanitarian law through an International mechanism. Among the complaints
regularly aired before the General Assembly of the United Nations in the annual
speech of the President of the ICTY and in the Annual Report22 are that
(i) The ICTY Statute places excessive reliance on state cooperation as the primary
means of achieving the mandated objectives of prosecuting persons for violations
of international humanitarian law. ICTY, having no police force of its own, must
rely on international cooperation in order to effect arrests. It has proved
extremely difficult to achieve significant state cooperation in complying with the
Tribunal's orders to arrest and deliver indicted persons to The Hague and to
provide assistance in evidentiary matters. Impunity is a genuine risk when states
and international authorities refuse to arrest Indicted individuals.
(il) There is a crucial need for more arrests of military or political leaders. States, if
arresting at all, demonstrate greater willingness to arrest lesser figures, whilst
allowing the leaders to remain at large. The process of restoring peace and
security to the affected region is thus made all the more difficult
(ill) There are tremendous financial and logistical obstacles In the way of an effective
international criminal tribunal. To establish an effective and fully functioning
Institution from scratch requires enormous funding. ICTY has had to build a
courtroom and offices and supply them with all the necessary equipment hire
staff from all around the world, build a detention unit fund programmes for the
protection of victims and witnesses, send teams of Investigators into thefield,and
so on. Yet there remains much to be done. For example, ICTY's Prosecutor, like
the rest of the Tribunal's organs, has been severely hampered by lack of funds,
and there Is a genuine need for more investigators to undertake the many
complex and time-consuming inquiries necessary to fulfil the Institution's

Current Trends towards Criminal Prosecution

11

mandate. Witnesses have to be found amongst the Balkan diaspora. They must be
interviewed and brought to The Hague to testify and, if necessary, be placed in a
witness protection programme. This applies not only to prosecution witnesses,
but to defence witnesses as well.
(iv) Finally, the legal regime is not straightforward. Unlike national jurisdictions,
which may rely on dozens of codes and hundreds of precedents for guidance, the
ICTY has to apply, in addition to its Statute, customary international law, which
can only be ascertained by consulting widely-dispersed international law
sources. This became particularly clear in the case of Erdemoviii,2* when the
judges of the Appeals Chamber had to determine whether international law
recognized the defence of duress, a question on which the Statute remains silent
Furthermore, the work of international tribunals is made all the more problematic by the absence of an international code of criminal procedure, although the
Rules of Procedure and Evidence which have been laboriously drafted by the
ICTY would provide a blueprint for a future permanent institution.

Whilst states continue to shy away from resorting to national penal enforcement (see
section 2 above), they are also very reluctant to 'internationalize' the repression of
serious violations of international humanitarian law. This proposition remains true,
despite the recent moves towards the establishment of a permanent international
criminal court, moves which seem to be very close to reaching their goal. The
reluctance of states regarding International penal enforcement is hardly surprising,
given that International criminal tribunals intrude on one of the most sacred areas of
state sovereignty: criminal Jurisdiction.
One of the essential features of an international criminal tribunal whether
established ad hoc by the Security Council pursuant to Chapter VII of the UN Charter
or whether made permanent through a multilateral treaty is that it purports to
exercise international criminal jurisdiction directly over individuals living in states
and subject to the exclusive authority of such states. It thus casts aside the 'shield' of
state sovereignty. There is no doubt that the establishment of such tribunals
constitutes a major inroad into the traditional omnipotence of sovereign states.
However, as I shall now demonstrate by drawing from the experience of the ICTY and
from the current proposals for an international criminal court, state sovereignty
resurfaces when it comes to the day-to-day operations of the Tribunal and its ability to
fulfil its mandate. This proves once again the validity of a remark made by a renowned
German lawyer, Nlemeyer, earlier this century: he pointed out that international law
is an edifice built on a volcano state sovereignty.24 By this he meant that whenever
"
*

Prosecutor . Dnnoi Enfcmovid IT-96-23A. AC lodgment 7 October 1997.

H.G. Nlemeyer, Elratwdllgt Vcrfugungen des Wehgtrkhlshofc. Ihr Wesen und Out Grantn (1932). at 3.

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7 International Criminal Justice v. State Sovereignty

12

EpL 9 (1998), 2-17

"

Artkdel2oftheI>raftStatule6>flnestheProcuracyasan'liidependentorganoftheto^
the Investigation of complaints'.
" Transmission of Arrest Warrants
(A) Notwithstanding Rules 55 to 59, on the order of a Judge, the Registrar shall transmit to an
appropriate authority or international body or the Prosecutor a copy of a warrant for the arrest of an
accused on such terms as the Judge may Hrimninf, together wtth an order that he be taken tnto custody
by that authority or international body or the Prosecutor...'.
17
Projecutarv. SJavto Etotm(movfc,rr-95-13a-PT.TCn.Declskm on the Motion for Release by the Accused
Savko Dokmanovlc. 22 October 1997.

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state sovereignty explodes onto the international scene, it may demolish the very
bricks and mortar from which the Law of Nations is built It is for this reason that
international law aims to build devices to withstand the seismic activity of states: to
prevent or diminish their pernicious effect This metaphor is particularly apt in
relation to an international tribunal. The tribunal must always contend with the
violent eruptions of state sovereignty: the effect of states' lack of cooperation is like
lava burning away the foundations of the institution.
In order to better understand the effect of state sovereignty on the operation of
international criminal tribunals, one must first grasp their constitution and functions.
Unlike national courts, which are concerned exclusively with judicial functions and
leave investigation and prosecution up to other bodies, the current model for an
International criminal court, in fact, provides for two organs: (1) a body entrusted with
the administration of justice (the Chambers); and (li) a body responsible for the
investigation and prosecution of crimes falling under the Tribunal's jurisdiction. In
the ICTY and ICTR, the latter organ is called the 'Office of the Prosecutor'. Under the
Draft Statute for a permanent international criminal court, it is designated as 'the
Procuracy'.25 As I shall illustrate, the effectiveness of both the judicial arm and the
investigation arm of an international criminal tribunal depends heavily on state
cooperation and is ultimately impeded by lack of state cooperation under the guise of
state sovereignty.
Unlike national courts, an international criminal tribunal has no law enforcement
agency akin to a police judiciaire. It thus relies primarily on the cooperation of national
authorities for the effective investigation and prosecution of persons accused of
violations of international humanitarian law. Accordingly, all requests for assistance
or orders of the ICTY, for instance, are addressed to and processed by the national
system of the relevant state as the first resort Cooperation is necessary in relation to
requests for assistance or orders of the ICTY for the identification and location of
persons, the taking of testimony and the production of evidence, the service of
documents, the arrest or detention of persons, and the surrender or transfer of the
accused to the ICTY. States are obliged to cooperate with the ICTY for these purposes
pursuant to Article 29 of the ICTY Statute.
However, Rule 59 bis?6 of the Rules of Procedure and Evidence of the ICTY provides
an alternative procedure to that contemplated by Article 29 (and also Rule 55)
concerning arrests by states. A Trial Chamber of the ICTY27 has held that 'once an
arrest warrant has been transmitted to an international authority, an international

Current Trends towards Criminal Prosecution

13

Ibid, at 18.
Arrests of Milan Kovacevlc Anto Funindfija and Goran Jdlsli by SFOR and Slavko Dokmanovtc by
UNTAES respectively. Shno Drljaca was killed In the course of an attempt to arrest him by SFOR.
As at 10 November 1997. the following 2 0 states have enacted legislation regarding the International
Criminal Tribunal for the Former Yugoslavia: Italy, Finland, Netherlands, Germany, Iceland. Spain,
Norway, Sweden, Denmark. France. Republic of Bosnia and Herxegovina, Australia, Switzerland, New
Zealand. United States, United Kingdom. Belgium. Republic of Croatia, Austria and Hungary. Four
countries have Indicated that they do not need Implementing legislation (Korea. Russia. Singapore and
Venexuela).
See, e g . , 'extradition': Article 2 of Denmark's Act on Criminal Proceedings before the International
Tribunal for the Prosecution of Persons Responsible for War Crimes Committed in the Territory of Former
Yugoslavia: Article 2 of Norway's Act Relating to the Incorporation Into Norwegian Law of the United
Nations Security Council Resolution on the Establishment of an International Tribunal for Crimes
Committed In the Former Yugoslavia: the implicit procedure in Bosnia and Henegovma't Decree with
Force of Law on Deferral upon Request by the International Tribunal; and Article 11 of Italy's Decree Law
No. 544 of 28 December 1993.

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body, or the Office of the Prosecutor, the accused person named therein may be taken
into custody without the involvement of the State in which he or she was located'.28
Four successful arrests have been made by international authorities in the former
Yugoslavia since the adoption of Rule 59 bis.29
Notwithstanding this development, the ICTY remains very much like a giant
without arms and legs it needs artificial limbs to walk and work. And these artificial
limbs are state authorities. If the cooperation of states is not forthcoming, the ICTY
cannot fulfil its functions. It has no means at its disposal to force states to cooperate
with It This is to be contrasted with the International Military Tribunals at
Nuremberg and Tokyo, which investigated and prosecuted war crimes committed in
states held under military occupation by the Allied forces.
The obligation of states to cooperate with an international tribunal, whether
pursuant to a binding Security Council resolution in the case of ad hoc tribunals or
pursuant to their treaty obligations in the case of a permanent international criminal
court requires each state to enact implementing legislation or to amend its existing
legislation for this purpose. A particular problem which arises with respect to most
implementing legislation enacted by states to date with regard to the ICTY30 Is the
tendency to subsume cooperation with the ICTY under the traditional model of
inter-state Judicial cooperation. For example, many states, in their implementing
legislation, apply extradition procedures to requests by the ICTY for the surrender of
accused persons, some even referring expressly to 'extradition' of accused persons.31
The application of the law of extradition to cooperation with the ICTY is inappropriate.
Extradition to a state and surrender to an international jurisdiction are two totally
different and separate mechanisms. The former concerns relations between two
sovereign states and is therefore a reflection of the principle of equality of states: it
gives rise to a horizontal relationship. The latter, instead, concerns the relation
between a state and an international judicial body endowed with binding authority; it
is therefore the expression of a verticalrelationship.The Appeals Chamber of the ICTY

14

EJH, 9 (1998), 2-17

The importance of state sovereignty as a factor influencing the work of an

international tribunal is made glaringly apparent by a recent problem faced by the
ICTY with respect to the Office of the Prosecutor's efforts to obtain documents relevant
to the case of Prosecutor v. Tihomir BlaMc. The problem in that particular Instance
arose out of two subpoenae ducts tecum (orders to appear in court for the purpose of
handing over documents) issued on 15 January 19 9 7 by a Judge of the Trial Chamber,
at the request of the Office of the Prosecutor. These subpoenae enjoined (1) Bosnia and
Herzegovina and 'the Custodian of the Records of the Central Archive of what was
formerly the Ministry of Defence of the Croatian Community of Herzeg-Bosna' and
(ii) the Republic of Croatia and the Minister of Defence of the Republic of Croatia, to
provide the documents listed therein. These subpoenae were not complied with within
the allotted time by the Republic of Croatia and were only partially complied with by
Bosnia and Herzegovina, hi response to the subpoena, the Republic of Croatia argued
that the ICTY does not have the competence to issue subpoenae to a sovereign state or
u

Pmtcutor v. Tihomir Bbftfc. IT-95-13-AR1O8 to, AC. Judgment on the Requot of the Republic of
CroatiaforReview of the Dedston of Trial Chamber n of 18 July 1997, 29 October 1997.
" Set Restatement of the LavThtri, The Foreign Relations law of the United Stata, voL I (1987), para.
115b, at 64: and PoBxh Nationals in Deraig, 1931 PCXJ, Series A/B. No. 44, at 24.

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has recently noted that the relation between national courts of different states is
'horizontal' in nature.32
The ICTY is endowed with jurisdiction over individuals living within sovereign
states, be they states of the former Yugoslavia or third states, and, in addition, has
been conferred with primacy over national courts in its Statute. By the same token,
the Statute granted ICTY the power to address to states binding orders concerning a
broad variety of Judicial matters (including the Identification and location of persons,
the taking of testimony and the production of evidence, the service of documents, the
arrest or detention of persons, and the surrender or transfer of indictees to ICTY).
Clearly, a 'vertical' relationship has been established, at least as far as the judicial and
injunctory powers of the ICTY are concerned (whereas in the area of enforcement, the
ICTY is still dependent upon states and the Security Council). This is borne out by the
fact that requests for extradition under the inter-state scheme are subject to the
discretionary consent of the statefromwhich extradition is sought or are envisaged in
bilateral treaties on extradition; by contrast the ICTY's requests for surrender are
always binding upon states pursuant to ICTY's Statute, to UN Resolution 827 (1993)
establishing the ICTY, and to Chapter VTI of the UN Charter. Such requests override
national legislation. It is worth noting here that Rule 58 of the ICTY's Rules of
Procedure and Evidence provides that the duty of cooperation and judicial assistance
laid down in Article 29 of the Statute 'shall prevail over any legal impediment to the
surrender or transfer of the accused or of a witness to the ICTY which may exist under
the national law or extradition treaties of the State concerned'. This Rule effectively
codifies the principle of customary international law pursuant to which a state cannot
adduce its constitution or its laws as a defence for failure to carry out its international
obligations."

Current Trends towards Criminal Prosecution

15

The Constitutional Act on the Co-operation between the Republic of Croatia and the International
Criminal Tribunal. 19 April 1996.
Reply of the Government of the Republic of Croatia to Subpoena Duces Tecum, Prosecutor v. Wtomir
Biafltic IT-95-13-T. 10 February 1997. para. 12.
Supra note 32.

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to Its officials; it added that if the Security Council had intended to depart so drastically
from international law (probably intending to refer to those international rules which
provide for state Immunity as well as the immunity of state agents), it would have
stated so plainly in the Statute of the ICTY. It agreed to give its "full co-operation' to the
Office of the Prosecutor with respect to the requested documents, not on the basis of
the subpoena which it considered unfounded, but rather on the basis of its legislation
on cooperation with the ICTY34 and 'under the terms applicable to all States'. It added,
however, that '[l]ike any sovereign State, the Republic of Croatia reserves the right to
observe the Interests of its national security when assisting the ICTY\35 In contrast,
Bosnia and Herzegovina stated that it recognized the competence of the ICTY to issue
orders against states, such as the subpoena in question, and that the Statute allows for
the issuance of such orders. It proceeded to argue before the ICTY that it had taken all
necessary steps to ensure compliance with the ICTY's order.
The Appeals Chamber36 ruled that while subpoenae duces team could not be
addressed to states, binding orders could be so addressed; states cannot by claiming
national security interests, withhold documents and other evidentiary material
requested by the ICTY. However, it recommended that practical arrangements be
adopted by the relevant Trial Chamber to make allowance for legitimate and bona fide
concerns of states. The Appeals Chamber also noted that ICTY does not possess any
power to take enforcement measures against sovereign states; such powers cannot be
regarded as inherent to the functions of an international judicial body. Following the
reporting of a judicial finding concerning a state's failure to observe the provisions of
the Statute or the Rules, it is for ICTY's parent body, the Security Council, to impose
sanctions, if any, against a recalcitrant state, under the conditions provided for in
Chapter VII of the United Nations Charter. In addition, subject to certain conditions,
each Member State of the United Nations may act upon the communal legal Interest in
the observance of this international obligation laid down in Article 29. A collective
response through other intergovernmental organisations may also be envisaged,
again 'subject to certain conditions'.
The reluctance of states to give way to international criminal jurisdiction with
respect to matters which would otherwise be subject to their exclusive sovereignty
becomes even more apparent in light of the way in which the Internationa] Law
Commission's draft statute on a permanent international criminal court deals with
the allocation of jurisdiction between the court and national authorities. In this
regard, it is significant that the Preparatory Committee set up by the General
Assembly to review the draft found that 'the jurisdictional aspects of the Statute were

16

EJJL 9 (1998). 2-17

8 Concluding Remarks
The trend towards 'criminalization of International law', through criminal prosecution and punishment of breaches of international humanitarian law by International criminal tribunals, should not blind us to the basic dilemma facing
International tribunals: prosecution and punishment or continued respect for state
sovereignty? The supremacy of state sovereignty In the form of excessive restrictions
on the jurisdiction of International criminal courts can only result in the creation of
Ineffective institutions.40
In addition, the trend towards the institutionallzation of International criminal law
must not detract from the underlying political realities. Judicial reckoning, while
PoUtL The Establishment of an International Criminal Court at a Crossroads: Issues and Prospects after
the First Session of the Preparatory Committee'. 13 NouvtJks Eluda Ptnala (1997) 115. at 118.
See ILC Draft Statute. Articles 25 and 2 6 .
An exception Is made for th< crime of genocide, over which the court has 'Inherent Jurisdiction' to the
f i i l ^ i that ratification of the statute automatically hnplhn acceptance of the court's Jurisdiction. See
generally Articles 2 0 through 2 5 of the FLC Draft Statute for an international criminal court.
Report of the International Law Commission, 46th Session. 1994. at 36.

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the object of the most intense and arduous discussions'.37 The statute of the
international criminal court as currently drafted is more restrictive with respect to
jurisdiction than that of the existing ad hoc Tribunals. For example:
(I) Like the ICTY and the ICTR. the proposed international criminal court is to have
'complementary' jurisdiction with that of national jurisdiction but, unlike these
two ad hoc Tribunals, the proposed court gives primaqj to national jurisdictions.
(ii) The jurisdiction of the proposed international criminal court is triggered by
states, and not on the Initiative of the Procuracy. The latter does not have the
power to Investigate ex officio, but only on the basis of the complaint made by a
state (although it has sole authority to decide on the issuance of Indictments
following state complaints).'8
(ill) In addition, under a proposal currently being discussed, in order for the
jurisdiction of the court to 'kick in' In a given case, the complaining state, the
state which has custody of the suspect and the state on whose territory the crime
is alleged to have taken place, must not only have ratified the statute, but must
also have 'opted in' with regard to the specific crimes complained of.39
It is hoped that these restrictions on the permanent international criminal court's
jurisdiction will be tempered so that the court may function effectively.
To sum up, the truth of the matter is that the major concessions that have been
made by states over their sovereignty with respect to the establishment of fully
functioning international criminal tribunals are nevertheless being negated by an
excessive clinging to state sovereignty in the face of requests for cooperation. Having
opened the door of state sovereignty, it is all too quickly shut again.

Current Trends towards Criminal Prosecution

17

'International Law is still limited by International politics, and we must not pretend that either can live
and grow without the other.' Stbnsoa The Nuremberg Trial: Landmark In Law', 25 Foreign Affairs
(1947) 189.
Beccaria, "Dd dditti e defle pene1. translated m J. Farrar. Crimes & Punishment (1880). at 193-194.

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necessary in order to uphold and enforce the international rule of law, should run
parallel to steps taken on the political level. The prosecution and punishment of war
criminals by an international criminal tribunal (whether ad hoc or permanent)
cannot be a substitute for robust action by the United Nations where required to
restore international peace and security. As long as the ideological, political and
military leaders behind the serious violations of international humanitarian law still
remain firmly in power, flaunting with impunity their rendezvous with Justice, this
can only result in a discrediting of the work of international criminal tribunals. So
long as states retain some essential aspects of their sovereignty and fail to set up an
effective mechanism to enforce arrest warrants and to execute judgments, international criminal tribunals may have little more than normative impact Thus, we are
once again reminded of the limits posed by international politics on international
law.41
In spite of these problems, the most effective means of enforcing international
humanitarian law remains the prosecution and punishment of offenders within
national or international criminal jurisdictions. I will go further and say that the rule
of international humanitarian law depends on its enforcement through the prosecution and punishment of its offenders. As Cesare Beccaria stated as long ago as
1764, 'the conviction of finding nowhere a span of earth where real crimes were
pardoned might be the most efficacious way of preventing their occurrence',42 and
thus of ensuring respect for the rule of law.