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The Creation of the Tribunals

  • Michael J. Matheson (a1) and David Scheffer (a2)

Extract

This article offers a U.S. perspective on the creation of the Yugoslav and Rwanda criminal tribunals as each nears its conclusion following more than twenty years of judicial proceedings. During the period in which the tribunals were created, one of us (MJM) was the Acting Legal Adviser or Principal Deputy Legal Adviser of the U.S. Department of State, and the other (DS) was Senior Adviser and Counsel to the U.S. Permanent Representative to the United Nations and was subsequently the first U.S. Ambassador-at-Large for War Crimes Issues. Given the leading role played by the United States in the process of creating the tribunals, we hope that our perspective might help to illuminate the critical issues faced at that time.

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1 For background on the onset of the Yugoslav conflict, see, for example, David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 15–19 (2012); 1 Virginia Morris & Michael Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia 17–22 (1995).

2 See 1 Morris & Scharf, supra note 1, at 21.

3 SC Res. 780 (Oct. 6, 1992).

4 For a description of this process, see, for example, 1 Morris & Scharf, supra note 1, at 22–29.

5 See id at 30; Michael Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg 43–44 (1997).

6 See Elaine Sciolino, U.S. Moves Ahead with War-Crimes Tribunal, N.Y. Times, Jan. 27, 1993, at A3.

7 Nomination of Madeleine K. Albright to Be United States Ambassador to the United Nations: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 24–25 (1993).

8 Among the State Department lawyers who worked on this project were Bruce Rashkow, James O’Brien, Michael Scharf, and Robert Kushen.

9 See Scheffer, supra note 1, at 19–21.

10 Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/25274 (Feb. 10, 1993).

11 SC Res. 808 (Feb. 22, 1993).

12 See 2 Morris & Scharf, supra note 1, at 209–480.

13 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (May 3, 1993) [hereinafter Secretary-General’s Report].

14 SC Res. 827 (May 25, 1993). The statute, decisions, and other materials of the Yugoslav Tribunal are available at http://www.icty.org. See also http://www.unmict.org/en/about.

15 For background on the onset of the Rwanda conflict, see, for example, 1 Virginia Morris & Michael Scharf, The International Criminal Tribunal for Rwanda 47–61 (1998). For background on the genocide and governmental and UN responses to it, see Scheffer, supra note 1 at 45–68; Samantha Power, “A Problem from Hell”: America and the Age of Genocide 329–90 (2002); Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocidein Rwanda, in Letter Dated 15 December 1999 from the Secretary-General Addressed to the President of the Security Council, UN Doc. S/1999/1257 (Dec. 16, 1999); International Decision-Making in the Age Of Genocide: Rwanda 1990–1994 (2014), at http://www.ushmm.org/m/pdfs/20150403-rwanda-rapporteur-report.pdf.

16 Among the State Department lawyers who worked on this project were Bruce Rashkow and Crystal Nix.

17 See Scheffer, supra note 1, at 69–70.

18 Id. at 71.

19 Christopher Urges Trial over Genocide in Rwanda, Wash. Post, July 1, 1994, at A29.

20 See Scheffer, supra note 1, at 72–76.

21 SC Res. 935 (July 1, 1994).

22 Preliminary Report of the Independent Commission of Experts Established in Accordance with Security Council Resolution 935, UN Doc. S/1994/879 (July 26, 1994).

23 See, e.g., Scheffer, supra note 1, at 72–78.

24 Letter Dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations Addressed to the President of the Security Council, UN Doc. S/1994/1115 (Sept. 29, 1994).

25 See Scheffer, supra note 1, at 71–72.

26 See id. at 78–80.

27 See id. at 80–84; 1 Morris & Scharf, supra note 15, at 66–72. Rwandan objections included (1) the extent of the Tribunal’s temporal jurisdiction, (2) the failure to provide for a separate prosecutor for Rwanda, (3) the possible imprisonment of convicted persons outside Rwanda, (4) the exclusion of capital punishment, and (5) the failure to establish the Tribunal’s seat in Rwanda (although the deputy prosecutor’s office ultimately was situated in Kigali). UN SCOR, 49th. Sess., 3453d. mtg. at 13–16, UN Doc. S/PV.3453 (Nov. 8, 1994).

28 SC Res. 808, supra note 11.

29 See 2 Morris & Scharf, supra note 1, at 209–480.

30 The International Military Tribunal at Nuremberg was characterized in the London Agreement of 8 August 1945, http://avalon.law.yale.edu/imt/imtchart.asp, and its charter as “an International Military Tribunal for the trial of war criminals.” Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 82 UNTS 279 [hereinafter Nuremberg Charter]. The International Military Tribunal for the Far East was created by order of the supreme commander for the allied powers for “trial and punishment of the major war criminals in the Far East.” Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, TIAS 1589.

31 See Proposal for an International War Crimes Tribunal for the Former Yugoslavia (Feb. 9, 1993), in Letter Dated 18 February 1993 from the Permanent Representative of Sweden to the United Nations Addressed to the Secretary-General, UN Doc. S/25307, Annex II (Feb. 18, 1993).

32 See Doudou Thiam (Special Rapporteur), Tenth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, UN Doc. A/CN.4/442 (Mar. 20, 1992), reprinted in [1992] 2 Y.B. Int’l L. Comm’n, pt. 1, at 51, 55, UN Doc. A/CN.4/SER.A/1992/Add.1 (Part 1).

33 See, e.g., 2 Morris & Scharf, supra note 1, at 436 (Brazil), 199 –200 (China).

34 See UN Charter, Arts. 7(2), 11–14. The General Assembly did adopt “Uniting for Peace” resolutions early in its history that created peacekeeping operations and provided support for one major conflict (Korea), but these resolutions rested either on the consent of the states involved or (in the case of Korea) on the right of states to act in individual or collective self-defense against armed attack. None involved the creation of criminal tribunals. By the time of the Yugoslav crisis, reliance on Uniting for Peace resolutions had completely lapsed. See, e.g., Michael Matheson, Council Unbound: The Growth of UN Decision Making on Conflict and Post conflict Issues After the Cold War 102–04 (2006).

35 See, e.g., Matheson, supra note 34, at 73–74, 145– 48, 168 –78.

36 SC Res. 713 (Sept. 25, 1991).

37 SC Res. 757 (May 30, 1992).

38 SC Res. 770 (Aug. 13, 1992).

39 SC Res. 808, supra note 11.

40 In particular, see 2 Morris & Scharf, supra note 1, at 327 (France), 375 (Italy).

41 In particular, see id. at 199 –200 (China), 436 (Brazil).

42 See id. at 439.

43 Secretary-General’s Report, supra note 13, paras. 18–30.

44 SC Res. 827, supra note 14.

45 See Scheffer, supra note 1, at 73; 1 Morris & Scharf, supra note 15, at 102–04.

46 Statute of the International Tribunal for Rwanda, SC Res. 955, annex (Nov. 8, 1994). The statute, decisions, and other materials of the Rwanda Tribunal are available at its legacy website, http://unictr.unmict.org. See http://www.unmict.org/en/about/.

47 Prosecutor v. Tadić, Case No. IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, paras. 37–40 (Oct. 2, 1995).

48 SC Res. 1315 (Aug. 14, 2000).

49 SC Res. 1400 (Mar. 28, 2002).

50 SC Res. 1664 (Mar. 29, 2006).

51 SC Res. 1757 (May 30, 2007).

52 See Scheffer, supra note 1, at 341–405.

53 Rome Statute of the International Criminal Court, Art. 13(b), July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute]. The current version of the Rome Statute, with the 2010 Kampala amendments incorporated, see infra notes 79–80 and accompanying text, is at https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.

54 SC Res. 1593 (Mar. 31, 2005).

55 SC Res. 1970 (Feb. 26, 2011).

56 Nuremberg Charter, supra note 30, Art. 6(c); Tokyo Charter for the International Military Tribunal for the Far East, Art. 5(c), as amended by General Orders No. 20, Apr. 26, 1946, TIAS No. 1589 [hereinafter Tokyo Charter].

57 Draft Charter of the International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, Art. 10(b), UN Doc. S/25575, Annex II (1993) [hereinafter U.S. Draft Charter].

58 Secretary-General’s Report, supra note 13, paras. 47– 49. The quoted material appears in Article 5 (“Crimes against humanity”) of the Tribunal’s statute.

59 See Scheffer, supra note 1, at 23–25.

60 The Appeals Chamber of the Yugoslav Tribunal stated that the connection to armed conflict in the Tribunal’s statute was simply circumscribing the Tribunal’s subject-matter jurisdiction, not codifying customary international law, which was not so limited. See Prosecutor v. Tadić, Case No. IT-94-1A, paras. 249–51 (July 15, 1999); see also Prosecutor v. Kordić, Case No. IT-95-14/2-T, para. 33 (Feb. 26, 2001).

61 Statute of the International Tribunal for Rwanda, supra note 46, Art. 3.

62 See Scheffer, supra note 1, at 81– 82.

63 Rome Statute, supra note 53, Art. 7(1).

64 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.

65 Id., Art. II.

66 Rome Statute, supra note 53, Art. 6.

67 See, for example, the decision of the International Court of Justice in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 ICJ REP. 43 (Feb. 26), and the decisions of the Yugoslav Tribunal cited therein.

68 Nuremberg Charter, supra note 30, Art. 6(b).

69 Tokyo Charter, supra note 56, Art. 5(b).

70 U.S. Draft Charter, supra note 57, Art. 10(a).

71 Secretary-General’s Report, supra note 13, paras. 37–44.

72 The listing of specific war crimes in Article 8 of the Rome Statute of the International Criminal Court, supra note 53, took years to negotiate as governments sought to identify those particular crimes that were indisputably part of customary international law. See Scheffer, supra note 1, at 435–36; von Hebel, Herman & Robinson, Daryll, Crimes Within the Jurisdiction of the Court, in The International Criminal Court: The Making of the Rome Statute 103–26 (Lee, Roy S. ed., 1999).

73 See UN Doc. S/PV.3453, supra note 27.

74 See, e.g., 1 International Committee of the Red Cross, Customary International Humanitarian Law 37–50 (2005).

75 See id. at 46–50, 186–89; Rome Statute, supra note 53, Art. 8.

76 Nuremberg Charter, supra note 30, Art. 6(a).

77 Tokyo Charter, supra note 56, Art. 5(a).

78 Resolution on the Definition of Aggression, GA Res. 3314 (XXIX), annex (Dec. 14, 1974).

79 Rome Statute, supra note 53, Arts. 8 bis, 15 bis. The ICC formulation is limited in some important respects. For example, (1)it includes only an act of aggression “which, byits character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”; (2) a state party can declare that it does not accept jurisdiction over acts of aggression, and the Court cannot exercise jurisdiction over acts of aggression committed by the nationals or on the territory of a state that is not party to the statute; and (3) the prosecutor must ascertain whether the Security Council has made a finding of aggression and must defer to any Council decision not to prosecute.

80 For background and views on the Kampala amendments on the crime of aggression, see David Scheffer, State Parties Approve New Crimes for International Court, ASIL Insights (June 22, 2010), at https://www.asil.org/insights/volume/14/issue/16/states-parties-approve-new-crimes-international-criminal-court; Scheffer, David, The Complex Crime of Aggression Under the Rome Statute, 23 Leiden J. Int’l L. 897 (2010); Scheffer, David, Amending the Crime of Aggression Under the Rome Statute, in The Crime of Aggression: A Commentary (Kre², Claus & Barriga, Stefan eds., forthcoming); Koh, Harold & Buchwald, Todd, The Crime of Aggression: The United States Perspective, 109 AJIL 257 (2015).

81 See Secretary-General’s Report, supra note 13, paras. 60–63.

82 Statute of the International Tribunal for Rwanda, supra note 46, Art. 7.

83 Secretary-General’s Report, supra note 13, para. 62.

84 Morris & Scharf, supra note 15, at 48–53.

85 See Scheffer, supra note 1, at 78–82.

86 U.S. Draft Charter, supra note 57, Art. 11(c); Secretary-General’s Report, supra note 13, paras. 55–59.

87 U.S. Draft Charter, supra note 57, Art. 11(b); Secretary-General’s Report, supra note 13, paras. 56–59.

88 UN Doc. S/PV.3217, at 16 (May 25, 1993).

89 Prosecutor v. Delalić, Case No. IT-96-21-T, para. 356 (Nov. 16, 1998).

90 U.S. Draft Charter, supra note 57, Art. 12; Secretary-General’s Report, supra note 13, paras. 64–68.

91 Rwanda Statute, supra note 46, Art. 8; Statute of the Special Court for Sierra Leone, Art. 9.

92 Rome Statute, supra note 53, Art. 17.

93 U.S. Draft Charter, supra note 57, Arts. 2–3, 8.

94 Secretary-General’s Report, supra note 13, paras. 69–89.

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