Subject: BELGRADE LAW PROFESSORS' VERDICT
Date: Mon, 10 Sep 2001 18:04:31 +0200
From: "Vladimir Krsljanin"
In their aggression against the law and justice, NATO&Soros
clerks in the so-called "International Criminal Tribunal for
Former Yugoslavia" based in the Hague, decided to ignore, as
essentially unpleasant for their dirty work, the initiative of
leading law experts and law professors of Belgrade University to
appear in the court room as real AMICI CURIAE (in its real
meaning - as FRIENDS OF JUSTICE) and expose monstrous
character of this institution, for long time successfully hidden
from public.
Instead, they have appointed three attorneys (from Holland,
England and Yugoslavia), proven as real FRIENDS OF (WHITE)
HOUSE, to serve as quasidefense for president Milosevic. That
way their attempted trial of president Milosevic would become
the greatest political FARCE ever seen. Belgrade professors
already condemned in press conference such illegal and absurd
decision of both "Tribunal" and those three attorneys. Accepting
such a role they should lose their licenses, Belgrade professors
stated.
For the sake of justice, the full text of the initiative of Belgrade
law professors, is hereby given.
TO THE INTERNATIONAL TRIBUNAL FOR
THE PROSECUTION OF PERSONS
RESPONSIBLE FOR SERIOUS VIOLATIONS
OF INTERNATIONAL HUMANITARIAN LAW
COMMITTED IN THE TERRITORY OF THE
FORMER YUGOSLAVIA SINCE 1991
To the Trial Chambers in all the cases before the
Tribunal
PROPOSAL FOR APPEARANCE BEFORE
TRIAL CHAMBERS BY VIRTUE OF RULE 74
ON PROCEDURE AND EVIDENCE (AMICUS
CURIAE)
The Professors and Assistant Lecturers of the
Faculty of Law of the University of Belgrade have
been following with great attention the work of the
International Tribunal for the prosecution of persons
responsible for serious violations of international
humanitarian law committed in the territory of the
former Yugoslavia since 1991, as the institution that,
by a number of elements, is new and specific and all
the more interesting therefore from the purely
theoretical standpoint and then also as an organ
whose work will strongly affect the current and
future situation in the space of our country and the
situation throughout the region. A large group of
teachers and associates of our institution has
already in the country itself taken initiatives in order
to ensure respect for the constitutionality and
legality in the field of prosecution of persons charged
with violations of international humanitarian law and
especially in the field of respect for the legal norms
concerning fundamental human rights. It is our firm
belief that the prosecution of perpetrators of criminal
offences which have violated international
humanitarian law is one of the imperatives and
prerequisites for the normalisation of relations and
for restoring stability in the space of the former
Yugoslavia just as it is the case in all regions of the
world where such offences were and are still being
committed and are regrettably a regular corollary of
virtually all wars and conflicts. However, we also
firmly believe that one cannot create law out of
non-law and that therefore when prosecuting and
trying in court even such serious offences as those
that the Tribunal has been dealing with, the rules of
international law must be strictly respected and
particularly those among them that protect
fundamental human rights and freedoms that are of a
universal nature and that as jus cogens, within the
framework of international law, have a hierarchically
superior position vis-a-vis the majority of other
rules. This action-taking in accordance with the law
is everywhere a necessity that cannot be called into
question. However, in the case of the conflicts that
took place in the past ten years or so in the former
SFRY, respect for law is all the more essential as
these were conflicts that left tragic consequences on
virtually all peoples in these parts, conflicts that
represent at the same time both the expression and
the integral part of the tragic fate of these peoples,
whose troublesome past left behind a number of
disputes and unresolved situations over which they
quarrelled and waged wars also throughout their
history and over which they continue to quarrel even
today.
Bearing in mind both the mentioned necessity of
strictly respecting law, both generally and
specifically regarding the issues related to the
conflict in the former Yugoslavia, and the huge real
importance that the Tribunal and its works have for
our country and the region, for our fate and the fate of
future generations in these parts, we consider it
important and from the standpoint of our human and
our professional conscience necessary to approach
the Tribunal and request that our representatives be
allowed by the Trial Chambers in the above
mentioned proceedings to appear in accordance with
Rule 74 on procedure and evidence before the Trial
Chambers conducting these proceedings and present
for each of these proceedings their specific
objections based on the general objections that we
shall make in this correspondence, which concern
respect of international law in the Tribunal's work
and in particular the norms protecting human rights
and fundamental freedoms.
We were prompted to take this step also by the
statement by Judge May during the first appearance
of former President Slobodan Milosevic before the
Tribunal, to the effect that the international law
would be applied to the accused in future. This would
have to mean also that in the course of proceedings
the Tribunal would respect all of his human rights,
both those prescribed by the International Covenant
on Civil and Political Rights and others. This
statement, of course, also applies to all other
indicted persons.
We wish to point out that we decided to approach the
Tribunal in this way even though we share the view
of a large number of top-ranking international legal
experts world-wide that the International Tribunal
for prosecution of persons responsible for serious
violations of international humanitarian law
committed in the territory of the former Yugoslavia
since 1991 was established in the manner contrary to
the UN Charter in support of which we shall also
present our arguments but as the Tribunal does exist
in fact as it functions and keeps in custody several
dozens of indicted persons, both Serbs and Croats
and Muslims, which from our viewpoint and from the
viewpoint of law is all the same, our professional and
human responsibility and conscience make it
incumbent upon us in this way, too, to try to
contribute to the respect of international law with
regard to all these indicted persons, no matter which
national grouping they belong to because they are all
equal before the law.
We are, likewise, of the opinion that in the interest of
law, justice and peace, it would be useful in our
region for the Tribunal's relevant Trial Chambers to
approach the Faculties of Law in Sarajevo, Zagreb
and other university centre in the space of the former
SFRY, whose scholars, whose competence we had
the opportunity to personally witness during many
years of close co-operation, also could make an
important contribution to ensuring consistent and
impartial law enforcement with respect to all the
indicted for violations of international humanitarian
law. For our part, we have been prompted to
approach the Tribunal in this manner also by the fact
that unlike the state authorities from other states
formed in the space of the former SFRY that care for
the status and rights of their citizens being held on
trial at the Tribunal, as well as for the dignity of their
own state and peoples living in it, our state
authorities do not perform their duty with respect to
their citizens and their country but, as a rule, are
doing precisely the opposite. Nevertheless, we wish
by our remarks and suggestions to promote justice
and respect for law, also relative to the citizens of
other states from the region, believing it to be our
duty to adopt a strictly professional attitude on this
plane as well and treat all equally.
In the text below, we shall present (I) our view of the
legal validity of the acts establishing the Tribunal,
but would not discuss that topic further, since the
Tribunal actually exists and tries people and that in
these proceedings in every case international law
should be observed; as well as (II) our general
observations regarding the set-up and the works of
the Tribunal, which our representatives would
present in more specific terms on each individual
case if the relevant Trial Chambers would grant
permission for appearance in the proceedings in the
amicus curiae capacity.
I.ABSENCE OF LEGAL GROUNDS FOR
ESTABLISHING THE HAGUE
TRIBUNAL IN THE SECURITY
COUNCIL ACTS
The Criminal Tribunal for the Former
Yugoslavia was established by UN Security
Council resolutions 808/93 and 827/93 and, as
explicitly stated in these acts, in accordance
with Chapter VII of the UN Charter.
However, the legal grounds of the acts
establishing the Tribunal, can be challenged,
i.e. it can be noted with full certainty that the
aid Security Council resolutions were
adopted in contravention of the UN Charter.
The Tribunal's establishment is legally
problematic, i.e. contrary to the valid rules of
international law and primarily the UN
Charter, on several grounds.
To start with, the Security Council is the UN
executive organ responsible for taking care
of peace and security world-wide and as
such it may not establish judicial organs. It
has the right to establish its subsidiary
organs (Article 29 of the Charter stipulates:
"The Security Council may establish such
subsidiary organs as it deems necessary for
the performance of its functions"), but as it
itself has no right to perform any judicial
unction, it cannot transfer to its subsidiary
organ any powers that it does not hold (and
within the powers it has, it may not transfer
to its subsidiary organs the decision-making
right, because this is the Security Council's
xclusive right that is exercised according to a
strictly prescribed procedure). This
interpretation is also confirmed by Article 28
of the Rules of Procedure of the Security
Council adopted on 24 June 1946 based on
Article 30 of the Charter (that is still, even
after 55 years, called "Provisional Rules of
Procedure"). This Article of the Rules of
Procedure reads as follows: "The Security
Council may appoint a commission, a
committee or a rapporteur for a specific
question". A year after the adoption of the
Charter, the Security Council, where the
representatives of the key UN founding
members played a dominant role, notably
important figures such as Ernest Bevine,
eorges Bidault, Joseph Paul-Boncour,
Edward R. Stetinius Jr., Andrei Y.
yshinsky, Andrei A. Gromyko, etc. that may
virtually be considered the Charter's
authentic interpreters, thus interpreted in the
mentioned way which subsidiary organs the
Security Council might have.
In addition, the Security Council's
competence under Article 24 of the UN
Charter is the following:
"1. In order to ensure prompt and effective
action by the United Nations, its members
confer on the Security Council primary
esponsibility for the maintenance of
international peace and security and agree
that, in carrying out its duty under this
responsibility, the Security Council acts on
their behalf.
2. In discharging these duties, the Security
Council shall act in accordance with the
purposes and principles of the United
Nations."
As part of the thus defined function, the
Security Council's key task is to take care of
respect for the principle set forth in Article 2,
item 4 of the Charter, according to which:
"All Members shall refrain in their
nternational relations from the threat or use
of force against the territorial integrity or
political independence of any state or in any
other way inconsistent with the purposes of
the United Nations." In case this principle is
violated, i.e. that there is "a threat to peace,
violation of peace or aggression" (Article 39
of the Charter), the Security Council may
ecide on the implementation of measures
(diplomatic, economic-financial and
ilitary), that must be based on Chapter 7 of
the UN Charter and whose aim it is to
maintain or restore peace and security in the
world. In international law, i.e. the part of it
concerning war and peace, there is a
traditional division into the rules concerning
the right to war (jus ad bellum) and the rules
regulating the rules of warfare, therefore,
those that are applied when the war has
already broken out in order for the war as an
otherwise inhumane phenomenon, to be made
as humane as possible, i.e. to alleviate the
orrors (this is about the so-called right in
war - jus in bello). With its above mentioned
role of taking care of peace and security in
the world, i.e. of respecting the ban on the
threat of force and the use of force, the
ecurity Council is an organ that looks after
the implementation of the rule jus ad bellum.
International criminal law, for its part, has as
its aim, primarily to prevent and punish
criminal behaviour during war conflicts, i.e. it
aims at humanising warfare, i.e. primarily
falls under the framework of "the law in
war"- "jus in bello". Of the criminal offences
within the framework of international law, it
is only the so-called "crimes against peace"
fall within the framework of "jus ad bellum",
i.e. it is only by these criminal offences that
the rules within the framework "jus ad
ellum" are violated, while all other criminal
offences fall within the framework of "jus in
bello". The Statute of The Hague Tribunal
tipulates that this Tribunal shall try virtually
all offences within the framework of
international criminal law except crimes
against peace, i.e. all the offences with the
exception of those directed against peace
and security in the world. Therefore, of all
international criminal offences, The Hague
ribunal does not deal only with those
offences that violate the values for whose
preservation the Security Council is
responsible (but, the Security Council does
not ensure the preservation of those values
through any judicial but through its executive
function). Consequently, the Criminal
Tribunal for the former Yugoslavia, through
its judicial function, does not prevent
recisely the offences that violate the values
for whose protection the Security Council is
responsible, meaning that the aims that it has
to attain and the aims of the Security Council
whose subsidiary organ it is, are not the
ame.
It follows that the Security Council was not
authorised to establish the Tribunal neither
from the standpoint of the nature of its
unction nor from the standpoint of the aims
that it aspires to fulfil.
In addition to the above mentioned, the
International Criminal Tribunal for the former
Yugoslavia, is a Tribunal only for crimes
ommitted in a particular space, i.e. in the
territory of several states formed following
their secession from the former Yugoslavia.
In addition to this Tribunal, such a tribunal
exists only for Rwanda. On the other hand,
the criminal offences of the same nature
were committed and are being committed in
ar-torn areas the world over. It is not only
that selective justice cannot be considered
true justice, but this selectively established
justice also contravenes the principle of
sovereign equality of states proclaimed in
rticle 2, item 1 of the UN Charter.
In support of the above arguments, we shall
recall the indubitable authority of Professor
Mohammed Bedjaoui, President of the
nternational Court of Justice. In his book
"The new world order and the control of the
legality of the Security Council acts"
("Nouvel ordre mondiale et controle de la
legalite des actes du Conseil de Securite",
Bruxelles, 1994), he included in the eight
Security Council resolutions that he
onsidered legally most disputable and that
would, as such, be the first to be subjected to
control, also the two mentioned resolutions
on the establishment of the ad hoc Tribunal
for the former Yugoslavia - resolutions
808/93 and 827/93.
The only legally valid way in which an
international war crimes tribunal may be
established is the one resorted to in Rome in
1998, when the Statute was adopted of the
Permanent International Criminal Court of a
general jurisdiction. Regrettably, this Statute
has not yet come into force due to the
insufficient number of instruments of
ratification.
Since the Security Council is a political organ
and since its decisions are of a political
nature and given that in international law it is
considered legitimate and permissible for the
states to oppose the implementation of
political decisions taken by international
organisations, including the UN, that are
unlawful, it may be possible to conclude that
the mentioned Security Council resolutions
whereby the Tribunal was established do not
create legally valid obligations from the
standpoint of international law and law in
general. With respect to the UN Security
Council, this conclusion stems from Article
25 of the UN Charter, which reads as
follows: "The members of the United Nations
agree to accept and carry out the decisions
of the Security Council in accordance with
the present Charter." In its advisory opinion
of 21 June 1971 (in the case of the legal
consequence of the protracted presence of
South Africa in Namibia despite Security
Council resolution 276/1970), the
International Court of Justice confirmed that
the states are not duty-bound to accept and
implement the Security Council decisions
that are not in accordance with the Charter,
which would, by the way, be clear by itself
even if it were not written anywhere.
Nevertheless, as we have already noted,
despite the mentioned objections related to
the legal grounds of the Tribunal's
establishment, we have decided to request
that our representatives be allowed to appear
before the Trial Chambers in all the
mentioned cases in accordance with Rule 74
on Procedure and Evidence. We proceed
from the fact that the Tribunal exists and
unctions and from our wish for international
law to be respected in all the mentioned
proceedings.
II.THE SET-UP AND WORK OF THE
HAGUE TRIBUNAL IS CONTRARY TO
INTERNATIONAL LAW PRIMARILY
IN THE FIELD OF HUMAN RIGHTS
What poses a particular problem when the Hague
Tribunal is concerned is the fact that both its set-up
and the method of work are, to a considerable extent,
contrary to a number of rules in international law,
particularly those in the field of human rights and
fundamental freedoms. Especially important among
these rights are those stipulated in the International
Covenant on Civil and Political Rights, adopted and
open for signature by UN General Assembly
resolution 2200A (XXI) of 16 December 1966, that
took effect on 23 March 1976, as one of the central
documents adopted internationally. The Tribunal's
rules are often contrary also to the general legal
principles as recognized by the civilized nations and
particularly the general principles of criminal,
substantive and procedural law having universal
value (legality of sanctions, two-instance court
proceedings, division of legislative and judicial
functions, etc.). It is also noteworthy that the Hague
Tribunal works also in contravention of a number of
provisions of the European Convention on Human
Rights and Fundamental Freedoms, as well as the
practice of the European Court of Human Rights.
Finally, a number of Rules of Procedure and Evidence
as well as a number of practical procedures before
the Tribunal run counter to the rules of the indicted
person prescribed in Article 21 of the Tribunal's
Statute that correspond to the rules stipulated in
Article 14 of the International Covenant on Civil and
Political Rights, so that our remarks concerning
respect for Article 14 of the Covenant as a rule also
apply to respect for Article 21 of the Statute.
Mentioned below are just some of the most important
violations of international law that appear in the
Tribunal's set-up plan and in its works.
1.Legislative and judicial functions are mixed
The Tribunal appears both as a legislative
and as a judicial body. The judges write the
Rules of Procedure and Evidence themselves
and are authorised to amend them (Article 15
of the Statute titled "Rules of Procedure and
Evidence" stipulates: "The judges of the
International Tribunal shall adopt the Rules
of Procedure and Evidence for work pending
trial, for the conduct of court proceedings and
appellate proceedings, for the acceptance of
vidence, for the protection of victims and
witnesses, as well as for other relevant
issues". They, therefore, both make law and
apply it.
The Rules of Procedure and Evidence are
frequently amended. In eight years of the
Tribunal's existence, it developed eighteen
amendments to the Rules. Such frequent
amendments of the Rules lead to legal
insecurity.
The legal insecurity and inadequacy of the
Rules of Procedure and Evidence is also
augmented by the fact that right from day one
they represented a mixture of different
systems and that their interpretation often
argely depends on the judge that is applying
them and particularly on the legal system and
tradition in the framework of which he was
trained. Such a nature of the rules and their
too frequent amendments make it impossible
to establish a stable court practice. As a
result, neither the defence nor the
rosecutors nor the judges themselves are
able to fully follow and master this practice.
What additionally undermines legal security
is also the fact that the English and the
French versions of the Rules do not always
coincide as well as the fact that with respect
to some issues, there is a discrepancy
etween the Rules and the Statute (which is
an act superior to the Rules) so that the
judges, at their own discretion, have the
possibility to opt for solutions that are more
convenient to them at the given moment. The
iscrepancies of the mentioned types that will
be presented in this paper are only a part of
these discrepancies.
The absence of separation of the legislative
function from the judicial function also gives
the judges the possibility and the
uthorisation to interpret these Rules
depending on circumstances and without any
control. The defence has no means or
possibility to challenge the interpretation of
these rules by the Tribunal even if that
interpretation is evidently incorrect. It does
not have either the possibility to challenge
the legality of these rules even in cases
when they evidently contravene the Statute's
provisions which often happens in practice
as we shall see from some examples in the
text below.
2.The prosecutor's and the judge's functions
are mixed
According to its Statute, the Tribunal was
established as the "International Tribunal for
the prosecution of persons responsible for
serious violations of international
humanitarian law committed in the territory
of the former Yugoslavia since 1991". This is
how it was defined also in the Rules of
rocedure and Evidence.
Consequently, judging by the text of the
Statute, the Tribunal's task is prosecution.
This is clearly not a normal function of a
ourt that should try the accused (the French
version of the Statute, true, is more correct
than the English version because it
stipulates that the Tribunal shall "try in
court" (juger) - "Le Tribunal international
penal pour juger les personnes presumees
responsables de violations graves du droit
international humanitaire commises en
ex-Yougoslavie depuis 1991" - however, in
the text of the Rules of Procedure and
Evidence, the word "juger", meaning `try in
court', has been replaced by the word
"poursuivre", meaning "prosecute").
Both versions (the English and the French)
of the Rules of Procedure and Evidence take
the English version of the definition from the
tatute. Describing the institution under
discussion as the "International Tribunal
(Court) for the prosecution of persons
responsible for serious violations of
international humanitarian law committed in
the territory of the former Yugoslavia since
1991".
The mentioned inappropriate determination of
the Tribunal's function is not solely limited to
linguistic imprecision. It finds its practical
implementation also in the fact that the
Tribunal (i.e. the Trial Chambers and the
Prosecutor's Office) represents a single
organisational unit with a joint Secretariat.
Such institutional unity of the Prosecutor's
Office and the Court is unacceptable and
inconceivable in any modern judicial system.
Further materialisation in the mentioned
definitions of the proclaimed "prosecuting"
role of the Tribunal is also effected through
its actions that are characterised by
violations of a number of rights of the
ndicted persons and prevention of providing
adequate defence which will be discussed
later on.
What is also indicative in the mentioned
definitions is the fact that the Tribunal was
established to prosecute "persons
responsible...". Defining things in this way
runs counter to the modern legal and social
chievements, namely, in contemporary world,
any normal judicial system is characterised
by the fact that courts try "indicted persons"
who are presumed innocent until proven
guilty (Article 14, paragraph 2 of the
International Covenant of Civil and Political
Rights stipulates: "Everyone charged with a
riminal offence shall have the right to be
presumed innocent until proved guilty
according to law."; a similar provision is also
contained in Article 21 paragraph 3 of the
Tribunal's Statute, but this provision runs
counter to the manner in which the Tribunal
has been defined and the way it functions).
The mentioned French versions of the
Statute and the Rules go even a step further
o deny this fundamental premise of modern
justice and they indicate that the Tribunal
shall try in court or prosecute "persons
presumed responsible..." ("les personnes
presumees responsables...").
This establishment of the "presumption of
guilt" does not remain solely verbal but also
has its practical implementation, to be
iscussed later on.
3.Violation of the two-instance proceedings
principle
Article 14, paragraph 5, of the International Covenant
on Civil and political Rights, prescribes the right to
two-instance proceedings in the following way:
"Everyone convicted of a crime shall have the right
to his conviction and sentence being reviewed by a
higher tribunal according to law." The mentioned
provision evidently presumes a distinction between a
lower and higher judicial instance, a thing considered
normal and commonplace in all modern legal
systems.
At the Hague Tribunal, the same judges are members
of both first-instance (the term "first-instance" is
used in the French version of the text, while the
appropriate term from the English version is "Trial")
and Appellate Chambers. Namely, Rule 27 on
Procedure and Evidence reads:
"Rule 27
Rotation
A.Permanent Judges shall rotate on a regular
basis between the Trial Chambers and the
Appeals Chamber. Rotation shall take into
account the efficient disposal of cases.
B.The Judges shall take their places in their
new Chamber as soon as the President
thinks it convenient, having regard to the
disposal of part-heard cases.
C.The President may at any time temporarily
assign a member of a Trial Chamber or of the
Appeals Chamber to another Chamber."
A judge, therefore, may be in a first-instance
Chamber in one case and a member of the Appeals
Chamber in another. Therefore, the decision of every
judge acting as a member of a first-instance
Chamber are subject to control by other judges who
are in that case members of the second-instance
Chamber, whereas in other cases that very same
judge takes part in second- instance proceedings in
the control of the work of these other judges that
now appear as members of second-instance
Chambers. This is how the system of mutual
cross-control functions, impeding clear
two-instance nature in trials and may result in
deviations primarily towards a benevolent attitude
and confirmation of first-instance decisions made by
other judges when acting in second-instance
proceedings, so that they can be expected to
reciprocate this benevolence when their roles are
reversed.
This double position of judges undermines
considerably their independence and impartiality.
This organisation also gives the judge the possibility
to take part in decision-making as a
second-instance judge and at the same time to apply
the stands from such decisions as the court practice
established in second- instance proceedings in
cases that he tries as a judge in first-instance
proceedings.
The paradoxical possibility for the same judge to
decide on the same legal issue in one case within the
framework of a first-instance Chamber and at the
same time in a second case within the framework of
an Appeals Chamber gives this judge a legally
unacceptable benefit of providing to his stand and
first-instance decision simultaneously the legal
force and the confirmation of judicial practice
established at the second-instance level.
The true unacceptability of such a rule that allows
the same judges to participate both in first-instance
and Appeals Chambers is further strongly
accentuated by the fact that the rotation does not
take place under any rules laid down in advance, but
according to the decision of the President, who is
authorised at any moment to temporarily assign a
judge to another Chamber.
(1. continua/follows)
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Date: Mon, 10 Sep 2001 18:04:31 +0200
From: "Vladimir Krsljanin"
In their aggression against the law and justice, NATO&Soros
clerks in the so-called "International Criminal Tribunal for
Former Yugoslavia" based in the Hague, decided to ignore, as
essentially unpleasant for their dirty work, the initiative of
leading law experts and law professors of Belgrade University to
appear in the court room as real AMICI CURIAE (in its real
meaning - as FRIENDS OF JUSTICE) and expose monstrous
character of this institution, for long time successfully hidden
from public.
Instead, they have appointed three attorneys (from Holland,
England and Yugoslavia), proven as real FRIENDS OF (WHITE)
HOUSE, to serve as quasidefense for president Milosevic. That
way their attempted trial of president Milosevic would become
the greatest political FARCE ever seen. Belgrade professors
already condemned in press conference such illegal and absurd
decision of both "Tribunal" and those three attorneys. Accepting
such a role they should lose their licenses, Belgrade professors
stated.
For the sake of justice, the full text of the initiative of Belgrade
law professors, is hereby given.
TO THE INTERNATIONAL TRIBUNAL FOR
THE PROSECUTION OF PERSONS
RESPONSIBLE FOR SERIOUS VIOLATIONS
OF INTERNATIONAL HUMANITARIAN LAW
COMMITTED IN THE TERRITORY OF THE
FORMER YUGOSLAVIA SINCE 1991
To the Trial Chambers in all the cases before the
Tribunal
PROPOSAL FOR APPEARANCE BEFORE
TRIAL CHAMBERS BY VIRTUE OF RULE 74
ON PROCEDURE AND EVIDENCE (AMICUS
CURIAE)
The Professors and Assistant Lecturers of the
Faculty of Law of the University of Belgrade have
been following with great attention the work of the
International Tribunal for the prosecution of persons
responsible for serious violations of international
humanitarian law committed in the territory of the
former Yugoslavia since 1991, as the institution that,
by a number of elements, is new and specific and all
the more interesting therefore from the purely
theoretical standpoint and then also as an organ
whose work will strongly affect the current and
future situation in the space of our country and the
situation throughout the region. A large group of
teachers and associates of our institution has
already in the country itself taken initiatives in order
to ensure respect for the constitutionality and
legality in the field of prosecution of persons charged
with violations of international humanitarian law and
especially in the field of respect for the legal norms
concerning fundamental human rights. It is our firm
belief that the prosecution of perpetrators of criminal
offences which have violated international
humanitarian law is one of the imperatives and
prerequisites for the normalisation of relations and
for restoring stability in the space of the former
Yugoslavia just as it is the case in all regions of the
world where such offences were and are still being
committed and are regrettably a regular corollary of
virtually all wars and conflicts. However, we also
firmly believe that one cannot create law out of
non-law and that therefore when prosecuting and
trying in court even such serious offences as those
that the Tribunal has been dealing with, the rules of
international law must be strictly respected and
particularly those among them that protect
fundamental human rights and freedoms that are of a
universal nature and that as jus cogens, within the
framework of international law, have a hierarchically
superior position vis-a-vis the majority of other
rules. This action-taking in accordance with the law
is everywhere a necessity that cannot be called into
question. However, in the case of the conflicts that
took place in the past ten years or so in the former
SFRY, respect for law is all the more essential as
these were conflicts that left tragic consequences on
virtually all peoples in these parts, conflicts that
represent at the same time both the expression and
the integral part of the tragic fate of these peoples,
whose troublesome past left behind a number of
disputes and unresolved situations over which they
quarrelled and waged wars also throughout their
history and over which they continue to quarrel even
today.
Bearing in mind both the mentioned necessity of
strictly respecting law, both generally and
specifically regarding the issues related to the
conflict in the former Yugoslavia, and the huge real
importance that the Tribunal and its works have for
our country and the region, for our fate and the fate of
future generations in these parts, we consider it
important and from the standpoint of our human and
our professional conscience necessary to approach
the Tribunal and request that our representatives be
allowed by the Trial Chambers in the above
mentioned proceedings to appear in accordance with
Rule 74 on procedure and evidence before the Trial
Chambers conducting these proceedings and present
for each of these proceedings their specific
objections based on the general objections that we
shall make in this correspondence, which concern
respect of international law in the Tribunal's work
and in particular the norms protecting human rights
and fundamental freedoms.
We were prompted to take this step also by the
statement by Judge May during the first appearance
of former President Slobodan Milosevic before the
Tribunal, to the effect that the international law
would be applied to the accused in future. This would
have to mean also that in the course of proceedings
the Tribunal would respect all of his human rights,
both those prescribed by the International Covenant
on Civil and Political Rights and others. This
statement, of course, also applies to all other
indicted persons.
We wish to point out that we decided to approach the
Tribunal in this way even though we share the view
of a large number of top-ranking international legal
experts world-wide that the International Tribunal
for prosecution of persons responsible for serious
violations of international humanitarian law
committed in the territory of the former Yugoslavia
since 1991 was established in the manner contrary to
the UN Charter in support of which we shall also
present our arguments but as the Tribunal does exist
in fact as it functions and keeps in custody several
dozens of indicted persons, both Serbs and Croats
and Muslims, which from our viewpoint and from the
viewpoint of law is all the same, our professional and
human responsibility and conscience make it
incumbent upon us in this way, too, to try to
contribute to the respect of international law with
regard to all these indicted persons, no matter which
national grouping they belong to because they are all
equal before the law.
We are, likewise, of the opinion that in the interest of
law, justice and peace, it would be useful in our
region for the Tribunal's relevant Trial Chambers to
approach the Faculties of Law in Sarajevo, Zagreb
and other university centre in the space of the former
SFRY, whose scholars, whose competence we had
the opportunity to personally witness during many
years of close co-operation, also could make an
important contribution to ensuring consistent and
impartial law enforcement with respect to all the
indicted for violations of international humanitarian
law. For our part, we have been prompted to
approach the Tribunal in this manner also by the fact
that unlike the state authorities from other states
formed in the space of the former SFRY that care for
the status and rights of their citizens being held on
trial at the Tribunal, as well as for the dignity of their
own state and peoples living in it, our state
authorities do not perform their duty with respect to
their citizens and their country but, as a rule, are
doing precisely the opposite. Nevertheless, we wish
by our remarks and suggestions to promote justice
and respect for law, also relative to the citizens of
other states from the region, believing it to be our
duty to adopt a strictly professional attitude on this
plane as well and treat all equally.
In the text below, we shall present (I) our view of the
legal validity of the acts establishing the Tribunal,
but would not discuss that topic further, since the
Tribunal actually exists and tries people and that in
these proceedings in every case international law
should be observed; as well as (II) our general
observations regarding the set-up and the works of
the Tribunal, which our representatives would
present in more specific terms on each individual
case if the relevant Trial Chambers would grant
permission for appearance in the proceedings in the
amicus curiae capacity.
I.ABSENCE OF LEGAL GROUNDS FOR
ESTABLISHING THE HAGUE
TRIBUNAL IN THE SECURITY
COUNCIL ACTS
The Criminal Tribunal for the Former
Yugoslavia was established by UN Security
Council resolutions 808/93 and 827/93 and, as
explicitly stated in these acts, in accordance
with Chapter VII of the UN Charter.
However, the legal grounds of the acts
establishing the Tribunal, can be challenged,
i.e. it can be noted with full certainty that the
aid Security Council resolutions were
adopted in contravention of the UN Charter.
The Tribunal's establishment is legally
problematic, i.e. contrary to the valid rules of
international law and primarily the UN
Charter, on several grounds.
To start with, the Security Council is the UN
executive organ responsible for taking care
of peace and security world-wide and as
such it may not establish judicial organs. It
has the right to establish its subsidiary
organs (Article 29 of the Charter stipulates:
"The Security Council may establish such
subsidiary organs as it deems necessary for
the performance of its functions"), but as it
itself has no right to perform any judicial
unction, it cannot transfer to its subsidiary
organ any powers that it does not hold (and
within the powers it has, it may not transfer
to its subsidiary organs the decision-making
right, because this is the Security Council's
xclusive right that is exercised according to a
strictly prescribed procedure). This
interpretation is also confirmed by Article 28
of the Rules of Procedure of the Security
Council adopted on 24 June 1946 based on
Article 30 of the Charter (that is still, even
after 55 years, called "Provisional Rules of
Procedure"). This Article of the Rules of
Procedure reads as follows: "The Security
Council may appoint a commission, a
committee or a rapporteur for a specific
question". A year after the adoption of the
Charter, the Security Council, where the
representatives of the key UN founding
members played a dominant role, notably
important figures such as Ernest Bevine,
eorges Bidault, Joseph Paul-Boncour,
Edward R. Stetinius Jr., Andrei Y.
yshinsky, Andrei A. Gromyko, etc. that may
virtually be considered the Charter's
authentic interpreters, thus interpreted in the
mentioned way which subsidiary organs the
Security Council might have.
In addition, the Security Council's
competence under Article 24 of the UN
Charter is the following:
"1. In order to ensure prompt and effective
action by the United Nations, its members
confer on the Security Council primary
esponsibility for the maintenance of
international peace and security and agree
that, in carrying out its duty under this
responsibility, the Security Council acts on
their behalf.
2. In discharging these duties, the Security
Council shall act in accordance with the
purposes and principles of the United
Nations."
As part of the thus defined function, the
Security Council's key task is to take care of
respect for the principle set forth in Article 2,
item 4 of the Charter, according to which:
"All Members shall refrain in their
nternational relations from the threat or use
of force against the territorial integrity or
political independence of any state or in any
other way inconsistent with the purposes of
the United Nations." In case this principle is
violated, i.e. that there is "a threat to peace,
violation of peace or aggression" (Article 39
of the Charter), the Security Council may
ecide on the implementation of measures
(diplomatic, economic-financial and
ilitary), that must be based on Chapter 7 of
the UN Charter and whose aim it is to
maintain or restore peace and security in the
world. In international law, i.e. the part of it
concerning war and peace, there is a
traditional division into the rules concerning
the right to war (jus ad bellum) and the rules
regulating the rules of warfare, therefore,
those that are applied when the war has
already broken out in order for the war as an
otherwise inhumane phenomenon, to be made
as humane as possible, i.e. to alleviate the
orrors (this is about the so-called right in
war - jus in bello). With its above mentioned
role of taking care of peace and security in
the world, i.e. of respecting the ban on the
threat of force and the use of force, the
ecurity Council is an organ that looks after
the implementation of the rule jus ad bellum.
International criminal law, for its part, has as
its aim, primarily to prevent and punish
criminal behaviour during war conflicts, i.e. it
aims at humanising warfare, i.e. primarily
falls under the framework of "the law in
war"- "jus in bello". Of the criminal offences
within the framework of international law, it
is only the so-called "crimes against peace"
fall within the framework of "jus ad bellum",
i.e. it is only by these criminal offences that
the rules within the framework "jus ad
ellum" are violated, while all other criminal
offences fall within the framework of "jus in
bello". The Statute of The Hague Tribunal
tipulates that this Tribunal shall try virtually
all offences within the framework of
international criminal law except crimes
against peace, i.e. all the offences with the
exception of those directed against peace
and security in the world. Therefore, of all
international criminal offences, The Hague
ribunal does not deal only with those
offences that violate the values for whose
preservation the Security Council is
responsible (but, the Security Council does
not ensure the preservation of those values
through any judicial but through its executive
function). Consequently, the Criminal
Tribunal for the former Yugoslavia, through
its judicial function, does not prevent
recisely the offences that violate the values
for whose protection the Security Council is
responsible, meaning that the aims that it has
to attain and the aims of the Security Council
whose subsidiary organ it is, are not the
ame.
It follows that the Security Council was not
authorised to establish the Tribunal neither
from the standpoint of the nature of its
unction nor from the standpoint of the aims
that it aspires to fulfil.
In addition to the above mentioned, the
International Criminal Tribunal for the former
Yugoslavia, is a Tribunal only for crimes
ommitted in a particular space, i.e. in the
territory of several states formed following
their secession from the former Yugoslavia.
In addition to this Tribunal, such a tribunal
exists only for Rwanda. On the other hand,
the criminal offences of the same nature
were committed and are being committed in
ar-torn areas the world over. It is not only
that selective justice cannot be considered
true justice, but this selectively established
justice also contravenes the principle of
sovereign equality of states proclaimed in
rticle 2, item 1 of the UN Charter.
In support of the above arguments, we shall
recall the indubitable authority of Professor
Mohammed Bedjaoui, President of the
nternational Court of Justice. In his book
"The new world order and the control of the
legality of the Security Council acts"
("Nouvel ordre mondiale et controle de la
legalite des actes du Conseil de Securite",
Bruxelles, 1994), he included in the eight
Security Council resolutions that he
onsidered legally most disputable and that
would, as such, be the first to be subjected to
control, also the two mentioned resolutions
on the establishment of the ad hoc Tribunal
for the former Yugoslavia - resolutions
808/93 and 827/93.
The only legally valid way in which an
international war crimes tribunal may be
established is the one resorted to in Rome in
1998, when the Statute was adopted of the
Permanent International Criminal Court of a
general jurisdiction. Regrettably, this Statute
has not yet come into force due to the
insufficient number of instruments of
ratification.
Since the Security Council is a political organ
and since its decisions are of a political
nature and given that in international law it is
considered legitimate and permissible for the
states to oppose the implementation of
political decisions taken by international
organisations, including the UN, that are
unlawful, it may be possible to conclude that
the mentioned Security Council resolutions
whereby the Tribunal was established do not
create legally valid obligations from the
standpoint of international law and law in
general. With respect to the UN Security
Council, this conclusion stems from Article
25 of the UN Charter, which reads as
follows: "The members of the United Nations
agree to accept and carry out the decisions
of the Security Council in accordance with
the present Charter." In its advisory opinion
of 21 June 1971 (in the case of the legal
consequence of the protracted presence of
South Africa in Namibia despite Security
Council resolution 276/1970), the
International Court of Justice confirmed that
the states are not duty-bound to accept and
implement the Security Council decisions
that are not in accordance with the Charter,
which would, by the way, be clear by itself
even if it were not written anywhere.
Nevertheless, as we have already noted,
despite the mentioned objections related to
the legal grounds of the Tribunal's
establishment, we have decided to request
that our representatives be allowed to appear
before the Trial Chambers in all the
mentioned cases in accordance with Rule 74
on Procedure and Evidence. We proceed
from the fact that the Tribunal exists and
unctions and from our wish for international
law to be respected in all the mentioned
proceedings.
II.THE SET-UP AND WORK OF THE
HAGUE TRIBUNAL IS CONTRARY TO
INTERNATIONAL LAW PRIMARILY
IN THE FIELD OF HUMAN RIGHTS
What poses a particular problem when the Hague
Tribunal is concerned is the fact that both its set-up
and the method of work are, to a considerable extent,
contrary to a number of rules in international law,
particularly those in the field of human rights and
fundamental freedoms. Especially important among
these rights are those stipulated in the International
Covenant on Civil and Political Rights, adopted and
open for signature by UN General Assembly
resolution 2200A (XXI) of 16 December 1966, that
took effect on 23 March 1976, as one of the central
documents adopted internationally. The Tribunal's
rules are often contrary also to the general legal
principles as recognized by the civilized nations and
particularly the general principles of criminal,
substantive and procedural law having universal
value (legality of sanctions, two-instance court
proceedings, division of legislative and judicial
functions, etc.). It is also noteworthy that the Hague
Tribunal works also in contravention of a number of
provisions of the European Convention on Human
Rights and Fundamental Freedoms, as well as the
practice of the European Court of Human Rights.
Finally, a number of Rules of Procedure and Evidence
as well as a number of practical procedures before
the Tribunal run counter to the rules of the indicted
person prescribed in Article 21 of the Tribunal's
Statute that correspond to the rules stipulated in
Article 14 of the International Covenant on Civil and
Political Rights, so that our remarks concerning
respect for Article 14 of the Covenant as a rule also
apply to respect for Article 21 of the Statute.
Mentioned below are just some of the most important
violations of international law that appear in the
Tribunal's set-up plan and in its works.
1.Legislative and judicial functions are mixed
The Tribunal appears both as a legislative
and as a judicial body. The judges write the
Rules of Procedure and Evidence themselves
and are authorised to amend them (Article 15
of the Statute titled "Rules of Procedure and
Evidence" stipulates: "The judges of the
International Tribunal shall adopt the Rules
of Procedure and Evidence for work pending
trial, for the conduct of court proceedings and
appellate proceedings, for the acceptance of
vidence, for the protection of victims and
witnesses, as well as for other relevant
issues". They, therefore, both make law and
apply it.
The Rules of Procedure and Evidence are
frequently amended. In eight years of the
Tribunal's existence, it developed eighteen
amendments to the Rules. Such frequent
amendments of the Rules lead to legal
insecurity.
The legal insecurity and inadequacy of the
Rules of Procedure and Evidence is also
augmented by the fact that right from day one
they represented a mixture of different
systems and that their interpretation often
argely depends on the judge that is applying
them and particularly on the legal system and
tradition in the framework of which he was
trained. Such a nature of the rules and their
too frequent amendments make it impossible
to establish a stable court practice. As a
result, neither the defence nor the
rosecutors nor the judges themselves are
able to fully follow and master this practice.
What additionally undermines legal security
is also the fact that the English and the
French versions of the Rules do not always
coincide as well as the fact that with respect
to some issues, there is a discrepancy
etween the Rules and the Statute (which is
an act superior to the Rules) so that the
judges, at their own discretion, have the
possibility to opt for solutions that are more
convenient to them at the given moment. The
iscrepancies of the mentioned types that will
be presented in this paper are only a part of
these discrepancies.
The absence of separation of the legislative
function from the judicial function also gives
the judges the possibility and the
uthorisation to interpret these Rules
depending on circumstances and without any
control. The defence has no means or
possibility to challenge the interpretation of
these rules by the Tribunal even if that
interpretation is evidently incorrect. It does
not have either the possibility to challenge
the legality of these rules even in cases
when they evidently contravene the Statute's
provisions which often happens in practice
as we shall see from some examples in the
text below.
2.The prosecutor's and the judge's functions
are mixed
According to its Statute, the Tribunal was
established as the "International Tribunal for
the prosecution of persons responsible for
serious violations of international
humanitarian law committed in the territory
of the former Yugoslavia since 1991". This is
how it was defined also in the Rules of
rocedure and Evidence.
Consequently, judging by the text of the
Statute, the Tribunal's task is prosecution.
This is clearly not a normal function of a
ourt that should try the accused (the French
version of the Statute, true, is more correct
than the English version because it
stipulates that the Tribunal shall "try in
court" (juger) - "Le Tribunal international
penal pour juger les personnes presumees
responsables de violations graves du droit
international humanitaire commises en
ex-Yougoslavie depuis 1991" - however, in
the text of the Rules of Procedure and
Evidence, the word "juger", meaning `try in
court', has been replaced by the word
"poursuivre", meaning "prosecute").
Both versions (the English and the French)
of the Rules of Procedure and Evidence take
the English version of the definition from the
tatute. Describing the institution under
discussion as the "International Tribunal
(Court) for the prosecution of persons
responsible for serious violations of
international humanitarian law committed in
the territory of the former Yugoslavia since
1991".
The mentioned inappropriate determination of
the Tribunal's function is not solely limited to
linguistic imprecision. It finds its practical
implementation also in the fact that the
Tribunal (i.e. the Trial Chambers and the
Prosecutor's Office) represents a single
organisational unit with a joint Secretariat.
Such institutional unity of the Prosecutor's
Office and the Court is unacceptable and
inconceivable in any modern judicial system.
Further materialisation in the mentioned
definitions of the proclaimed "prosecuting"
role of the Tribunal is also effected through
its actions that are characterised by
violations of a number of rights of the
ndicted persons and prevention of providing
adequate defence which will be discussed
later on.
What is also indicative in the mentioned
definitions is the fact that the Tribunal was
established to prosecute "persons
responsible...". Defining things in this way
runs counter to the modern legal and social
chievements, namely, in contemporary world,
any normal judicial system is characterised
by the fact that courts try "indicted persons"
who are presumed innocent until proven
guilty (Article 14, paragraph 2 of the
International Covenant of Civil and Political
Rights stipulates: "Everyone charged with a
riminal offence shall have the right to be
presumed innocent until proved guilty
according to law."; a similar provision is also
contained in Article 21 paragraph 3 of the
Tribunal's Statute, but this provision runs
counter to the manner in which the Tribunal
has been defined and the way it functions).
The mentioned French versions of the
Statute and the Rules go even a step further
o deny this fundamental premise of modern
justice and they indicate that the Tribunal
shall try in court or prosecute "persons
presumed responsible..." ("les personnes
presumees responsables...").
This establishment of the "presumption of
guilt" does not remain solely verbal but also
has its practical implementation, to be
iscussed later on.
3.Violation of the two-instance proceedings
principle
Article 14, paragraph 5, of the International Covenant
on Civil and political Rights, prescribes the right to
two-instance proceedings in the following way:
"Everyone convicted of a crime shall have the right
to his conviction and sentence being reviewed by a
higher tribunal according to law." The mentioned
provision evidently presumes a distinction between a
lower and higher judicial instance, a thing considered
normal and commonplace in all modern legal
systems.
At the Hague Tribunal, the same judges are members
of both first-instance (the term "first-instance" is
used in the French version of the text, while the
appropriate term from the English version is "Trial")
and Appellate Chambers. Namely, Rule 27 on
Procedure and Evidence reads:
"Rule 27
Rotation
A.Permanent Judges shall rotate on a regular
basis between the Trial Chambers and the
Appeals Chamber. Rotation shall take into
account the efficient disposal of cases.
B.The Judges shall take their places in their
new Chamber as soon as the President
thinks it convenient, having regard to the
disposal of part-heard cases.
C.The President may at any time temporarily
assign a member of a Trial Chamber or of the
Appeals Chamber to another Chamber."
A judge, therefore, may be in a first-instance
Chamber in one case and a member of the Appeals
Chamber in another. Therefore, the decision of every
judge acting as a member of a first-instance
Chamber are subject to control by other judges who
are in that case members of the second-instance
Chamber, whereas in other cases that very same
judge takes part in second- instance proceedings in
the control of the work of these other judges that
now appear as members of second-instance
Chambers. This is how the system of mutual
cross-control functions, impeding clear
two-instance nature in trials and may result in
deviations primarily towards a benevolent attitude
and confirmation of first-instance decisions made by
other judges when acting in second-instance
proceedings, so that they can be expected to
reciprocate this benevolence when their roles are
reversed.
This double position of judges undermines
considerably their independence and impartiality.
This organisation also gives the judge the possibility
to take part in decision-making as a
second-instance judge and at the same time to apply
the stands from such decisions as the court practice
established in second- instance proceedings in
cases that he tries as a judge in first-instance
proceedings.
The paradoxical possibility for the same judge to
decide on the same legal issue in one case within the
framework of a first-instance Chamber and at the
same time in a second case within the framework of
an Appeals Chamber gives this judge a legally
unacceptable benefit of providing to his stand and
first-instance decision simultaneously the legal
force and the confirmation of judicial practice
established at the second-instance level.
The true unacceptability of such a rule that allows
the same judges to participate both in first-instance
and Appeals Chambers is further strongly
accentuated by the fact that the rotation does not
take place under any rules laid down in advance, but
according to the decision of the President, who is
authorised at any moment to temporarily assign a
judge to another Chamber.
(1. continua/follows)
---
Questa lista e' curata da componenti del
Coordinamento N
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