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War Crimes in Yugoslavia and the Development of International Law

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Type
Editorial Comments
Information
American Journal of International Law , Volume 88 , Issue 1 , January 1994 , pp. 78 - 87
Copyright
Copyright © American Society of International Law 1994

References

1 The post-World War II Nuremberg and Tokyo tribunals are regarded by some commentators as victors’ courts.

2 See generally James C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993); Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 123. For criticism of the tribunal, see Alfred P. Rubin, International Crime and Punishment, Nat’l Interest, Fall 1993, at 73. No attempt has been made to prosecute those responsible for egregious violations of humanitarian law and human rights in Uganda, Iraq, Cambodia and occupied Kuwait. The credibility of the international system of justice requires prosecutions for atrocities everywhere, not only those committed in the former Yugoslavia. See also infra note 4.

3 For the statute of the tribunal, see Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704 [hereinafter Commentary] and Annex (May 3, 1993), reprinted in 32 ILM 1159, 1192 (1993).

4 On a permanent international criminal court, see Report of the Working Group on the draft statute for an international criminal court, Annex to Report of the International Law Commission on the work of its forty-fifth session, UN GAOR, 48th Sess., Supp. No. 10, at 255, UN Doc. A/48/10 (1993); James Crawford, The ILC’s Draft Statute for an International Criminal Tribunal, infra p. 140.

5 See generally Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989).

6 Commentary, supra note 3, para. 34, 32 ILM at 1170.

7 Id., para. 35, 32 ILM at 1170 (footnotes omitted).

8 Id., para. 37, 32 ILM at 1170.

9 See, e.g., Task Force of the ABA Section of International Law and Practice, Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia 12–13 (1993) [hereinafter ABA Report].

10 Meron, supra note 5, at 62–70, 74–78.

11 UN Doc. S/PV.3217, at 15 (May 25, 1993).

12 The International Law Commission has made Article 22 of its Draft Code of Crimes against the Peace and Security of Mankind, entitled “Exceptionally serious war crimes,” applicable to both international and internal armed conflicts; but Article 22 has yet to take root as a norm of international law. Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 270, UN Doc. A/46/10 (1991).

13 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 114 (Judgment of June 27). The Court considered common Article 3 as reflecting a custom ary norm (“laws of humanity”), id. at 113–14, and as a minimum yardstick applicable not only to noninternational armed conflicts but also to international armed conflicts, id. at 114. Invoking this ICJ pronouncement, the ABA Task Force recommended that certain provisions of common Article 3 be incorporated into Article 5 of the statute, which enumerates crimes against humanity. The Task Force noted that

such modifications would also confirm that these crimes will be within the Tribunal’s subject-matter jurisdiction even if it should determine that they were committed in a non-international armed conflict, and thus were not covered by parallel provisions in Article 2 of the Statute, which address only grave breaches of the Conventions committed in international armed conflict.

ABA Report, supra note 9, at 15 (footnotes omitted).

14 The Commission stated that

the character and complexity of the armed conflicts concerned, combined with the web of agreements on humanitarian issues the parties have concluded among themselves, justify an approach whereby it applies the law applicable in international armed conflicts to the entirety of the armed conflicts in the territory of the former Yugoslavia.

Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/25274, Ann. I, para. 45 (1993) [hereinafter UN War Crimes Commission].

15 Commentary, supra note 3, para. 35, 32 ILM at 1170.

16 Id., paras. 33–37, 32 ILM at 1170, and text at notes 5–8 supra.

17 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, Aug. 8, 1945, Art. 3, 59 Stat. 1544, 82 UNTS 279, reprinted in 39 AJIL 257 (1945) [hereinafter Nuremberg Charter or London Agreement].

18 UN Doc. S/PV.3217, at 15 (May 25, 1993).

19 Id. at 19.

20 Id. at 11.

21 O’Brien, supra note 2, at 647.

22 Commentary, supra note 3, para. 36, 32 ILM at 1170.

23 Article 146(3) of the fourth Geneva Convention obligates all state parties to “take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.” Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, 75 UNTS 287. Suppression involves punishment. Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 594 (Oscar M. Uhler & Henri Coursier eds., 1958).

24 As pointed out above, common Article 3 was incorporated in the law of former Yugoslavia. The United States Army appears to regard violations of that article as encompassed by the notion of war crimes and would prosecute for war crimes captured military personnel accused of breaches of Article 3. U.S. Dep’t of the Army, The Law of Land Warfare, para. 499 (Field Manual No. 27–10, 1956); Uniform Code of Military Justice, 10 U.S.C. §§802, 818 (1988). These texts mention neither common Article 3 nor other provisions of the Geneva Conventions. U.S. military personnel accused of violating common Article 3 would be prosecuted for the substantive offenses listed in the UCMJ. I am grateful to Mr. George Peirce and to Major William Hudson for the information on which this note is based.

25 The Secretary-General emphasizes this point in his report. See Commentary, supra note 3, paras. 101, 106, 32 ILM at 1184, 1185.

26 Id., para. 101, 32 ILM at 1184 (footnote omitted). Article 44(l)(h) adopted by the working group of the ILC, supra note 4, at 305–06, allows in absentia trials when the tribunal “concludes that the absence of the accused is deliberate.” This provision was adopted after considerable controversy. For views rejecting in absentia trials, see Meron, supra note 2, at 125.

The addition to Article 14(3)(d) of the Political Covenant of the reference to the right of the accused to be tried in his presence was proposed by Israel, which did not mention any qualifications whatsoever to the exercise and scope of that right. Marc J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights 298–300 (1987); UN GAOR 3d Comm., 14th Sess., 961st mtg., ¶13, UN Doc. A/C.3/SR.961 (1959). In its General Comment No. 13 (1984), the Human Rights Committee did not entirely exclude the possibility of in absentia trials (“When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary.”). UN Doc. HRI/GEN/1, at 15 (1992).

The controversy concerning the exclusion of in absentia trials has continued even since the adoption of the tribunal’s statute. France, reflecting perhaps the broader permissibility of in absentia judgments in civil law countries, has thus argued that “[t]he Statute of the Tribunal does not explicitly exclude the possibility of judgment in the defendant’s absence, but does not actually provide for it.” Note No. 803 from the Permanent Mission of France to the United Nations, paras. 4, 6 (Oct. 28, 1993). Of course, as in the criminal procedure of the United States and many other countries, there are rules against abuse by the accused of the right to be tried in his presence. Rule 21 of the U.S. draft Rules of Procedure and Evidence for the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia describes the circumstances in which the accused shall be considered to have waived the right to be present. See Letter from the United States Embassy at The Hague to the Secretary-General of the United Nations (Nov. 18, 1993).

27 Commentary, supra note 3, para. 116 and Art. 25, 32 ILM at 1187.

28 Meron, supra note 2, at 125; O’Brien, supra note 2, at 655.

29 Control Council Law No. 10 expanded the formulation of crimes against humanity by including rape among the prohibitions listed in Article II(1)(c). Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50, reprinted in Naval War College, Documents on Prisoners of War 304 (International Law Studies vol. 60, Howard S. Levie ed., 1979).

30 Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424, 428 (1993).

31 Nuremberg Charter, supra note 17, Art. 6(c).

32 Control Council Law No. 10, supra note 29.

33 2 Lassa Oppenheim, International Law 579 n.5 (Hersch Lauterpacht ed., 7th ed. 1952).

34 1 Oppenheim’s International Law 996 (Robert Y. Jennings & Arthur Watts eds., 9th ed. 1992).

35 [1950] 2 Y.B. Int’l L. Comm’n 377, para. 120, UN Doc. A/CN.4/SER.A/1950/Add.l.

36 Fédération Nationale des Déponés et Internes Résistants et Patriotes v. Barbie, 78 ILR 125, 136 (Fr. Cass. crim. 1985).

37 In the definition of crimes against humanity (Principle VI(c)) in its 1950 report on the formulation of the Nuremberg principles, the ILC retained the nexus with crimes against peace and war crimes. [1950] 2 Y.B. Int’l L. Comm’n, supra note 35, at 377. The nexus with other crimes was eliminated from the definition of crimes against humanity (Art. 2(11)) in the 1954 Draft Code of Offences against the Peace and Security of Mankind, [1954] 2 Y.B. Int’l L. Comm’n 150, UN Doc. A/CN.4/SER.A/1954/Add.1, and today the ILC considers the autonomy of crimes against humanity to be absolute. [1986] 2 Y.B. Int’l L. Comm’n 56, UN Doc. A/CN.4/SER.A/1986/Add.1. See also Doudou Thiam, Seventh Report on the Draft Code of Crimes against the Peace and Security of Mankind, [1989] 2 Y.B. Int’l L. Comm’n 86, UN Doc. A/CN.4/SER.A/1989/Add.1 (pt. 1) (“First linked to a state of belligerency … the concept of crimes against humanity gradually came to be viewed as autonomous and is today quite separate from that of war crimes.” And “[c]rimes against humanity may be committed in time of war or in time of peace; war crimes can be committed only in time of war.” Id. at 87). The draft articles of the Draft Code of Crimes against the Peace and Security of Mankind provisionally adopted by the ILC on first reading abandon the “distinction between crimes against peace, war crimes, and crimes against humanity.” Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 259, UN Doc. A/46/10 (1991). By combining in a single article (draft Article 21, entitled “Systematic or mass violations of human rights”) some violations of human rights with elements previously considered crimes against humanity, the ILC appears to support the latter’s autonomy from war. Id. at 265.

Orentlicher sums up the evolution of the nexus requirement by observing that “while post-Nuremberg developments have tended to free crimes against humanity from a wartime context, the trend has been inconclusive.” Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2539 (1991). See also M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 257 (1992); Yoram Dinstein, International Criminal Law, 20 Isr. L. Rev. 206, 211 (1985); Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178, 193–97, 205–06 (1946).

38 In any event, the ad hoc tribunal’s task will be largely to interpret its statute, rather than to resort to the customary law of crimes against humanity. O’Brien, supra note 2, at 649 n.44.

39 UN War Crimes Commission, supra note 14, para. 49.

40 UN Doc. S/25300, at 11 (Feb. 17, 1993).

41 ABA Report, supra note 9, at 16 n.53.

42 Some Preliminary Remarks by the International Committee of the Red Cross on the Setting-up of an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed on the Territory of the Former Yugoslavia 8 (Mar. 25, 1993).

43 O’Brien, supra note 2, at 649 & n.45.

44 The U.S. representative stated:

[I]t is understood that Article 5 applies to all acts listed in that article, when committed contrary to law during a period of armed conflict in the territory of the former Yugoslavia, as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, gender, or religious grounds.

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

45 “Article 5 covers acts committed in time of armed conflict.” Id. at 19.

46 O’Brien, supra note 2, at 650.

47 Commentary, supra note 3, para. 47, 32 ILM at 1173.