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The Legal Basis for the Establishment of the International Tribunal at The Hague 

By Dr. Kosta Cavoski

Professor Kosta Cavoski, an eminent Yugoslav law scholar, holds Ph.D. from Harvard University. He has taught at Theory of Law at University of Belgrade. 

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If the start or the case of the Prosecutor vs. Djordje Djukic disgraced the International Criminal Tribunal at The Hague, a more serious examination of the manner in which the Tribunal was founded and its working Rules of Procedure and Evidence would also convince us that the failure was not in the least accidental. Moreover, it could have been expected when the Security Council Resolution 808 of 22 February 1993 was issued. In spite of the fact that the Resolution expressed the intention to found an international tribunal for the prosecution of persons responsible for committing serious violations of international humanitarian law on the territory of the former Yugoslavia since 1991, the Security Council did not feel the need to provide a legal basis for its establishment.(10) The reason for this omission is simple: the existing legal system of the UN does not provide a legal basis for it, nor can there ever be one. Half a century has passed since the founding of the UN, and its main political and executive body, the Security Council, has never assumed the right to found a tribunal since court jurisdiction rests on international treaties as a result of the absence of a universal legislative organ. This was clearly stated by the UN Secretary General in his report no. S/25704 (section 18) of 3 May 1993 when he said: "The approach which in the normal course of events would be followed in establishing an international tribunal would be the conclusion of a treaty by which the member states would establish a tribunal and approve its statute. This treaty would be drawn up and adopted by an appropriate international body (e.g. the General Assembly or a specially convened conference), following which it would be opened for signing and ratification. Such an approach would have the advantage of allowing for a detailed examination and elaboration of all issues pertaining to the establishment of the international tribunal. It would also allow the states participating in the negotiation and conclusion of the treaty to fully exercise their sovereign will in particular whether they wish to become parties to the treaty or not".

The rule whereby court jurisdiction is based on international treaties has, until now, been strictly adhered to without exception. Then in Resolution 827 of 25 May 1993, the Security Council gave itself the right to establish ad hoc a tribunal whose competence was limited in time (beginning on 1 January 1991) as well as capacity (confined to the territory of the former Socialist Federal Republic of Yugoslavia). Since no such tribunal had ever been established before by the Security Council (11), it would have been appropriate to find some sort of legal basis in order to avoid the inference that "might is right". A legal basis was "found" in a very loose interpretation of a clause in Chapter VII of the UN Charter whereby the Security Council can take measures to maintain or restore international peace and security following the requisite establishment of the existence of a threat to the peace, breach of the peace or acts of aggression. In other words, the term "tribunal", as the requisite institution, is taken to be a "measure". No doubt the members of the Security Council, particularly the permanent members, assumed that "might was right", but also that certain terms can be instilled with certain meanings that they never had before. Thus "measures" became synonymous with "tribunal".

The Secretary General was given the thankless task of justifying the international criminal tribunal as an enforcement measure of the Security Council which Chapter VII of the UN Charter grants it. As he was unable to refer to any valid legal basis for this authority, he reverted to the principle of expediency. "This approach," said the Secretary General "would have the advantage of being expeditious and immediately effective as all states would be under a binding obligation to take whatever action is required to carry out a decision taken as an enforcement measure under Chapter VII" (12). Thus the principle of political expediency took precedence over that of legality and legal validity.

The Secretary General knew of course, that the Security Council could not simply "create" a tribunal nor did it have the legislative authority to allow it to "create" international criminal law. He let this slip when he said that "in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to 'legislate' that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law." (13) Unfortunately this is not true. With Resolution 827 of 25 May, the Security Council implemented its nonexistent legislative powers. It suspended the application of the Geneva Convention of 12 August 1949 with additional Protocols, as well as the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, whereby prosecution is entrusted to national courts. Thus, by awarding the International Tribunal primacy over the prosecution of crimes committed on the territory of the former SFR Yugoslavia, it annulled the competence of all national courts worldwide. One has to ask in the name of what principle could the Security Council suspend and then amend international treaties of a legislative nature.

Having assumed the right to legislate, the Security Council ventured to take another step: it delegated its nonexistent legislative competency to its creature - the International Criminal Tribunal at The Hague. Under Article 15 of the Statute of the International Tribunal it authorized its judges to adopt rules of procedure and evidence for the conduct of the pre-trial phase of proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters. In this way the Security Council not only legislated, but also authorized the Tribunal to be its own legislator with regard to criminal procedural law.

With no hesitation, the International Tribunal accepted the authority to write its own laws, i.e. to issue Rules of Procedure and Evidence that were to be applied to the prosecution of subsequent cases. The Rules were adopted by February 1994, only to be amended six more times - in May and October of 1994, January and June 1995, January and April 1996. In January 1995 alone, 41 of the total 125 rules were amended, and almost half of the original rules were further changed by other amendments. To make matters worse, the Tribunal adjusted the Rules according to which it would pass judgment, having in mind the practical problems that arose in the course of the implementation of the Rules on pending cases.

Unfortunately, this was in breach of its own Rule No. 6, paragraph (C) whereby amendments shall not operate to prejudice the rights of the accused in any pending case. In this way certain amendments took on the character of ex post facto law. Of special interest is the manner in which the Tribunal amended its rules. Legislative bodies usually do this at public sessions, following long and exhaustive debates over every proposed article or subsequent amendment. The International Tribunal simplified this procedure. Its Rules are adopted at plenary sessions after the decision of seven judges, and according to Rule 6, paragraph (B) this can also be done otherwise, on condition the judges accept the amendment unanimously. One asks oneself what "other way" is there for an amendment to be adopted if not by debate at a plenary session. The answer is simple: the president or some Tribunal official posed amendment to all the judges world-wide; on the same day they fax back their approval. This is the new way of creating laws by fax that could easily revolutionize the old-fashioned procedure that is exercised by the British Parliament.

This was how the Tribunal at The Hague used the legislative competence that was first usurped by the Security Council and subsequently generously delegated to it. To make for even greater paradox, the Tribunal took another step: having become its own legislator it then passed part of its legislative power over to the Prosecutor in order to allow him to draw up the rules he would work by. Hence Rule 37, paragraph (A) stipulates that "the Prosecutor shall perform all the functions provided by the Statute in accordance with the Rules and such Regulations, consistent with the Statute and the Rules, as may be framed by him".

Antonio Cassese, President of the International Tribunal was well aware that never in the history of a civilized country had individual court drawn up the rules by which it would pass judgment. This would be a dangerous breach of the principle of separation of powers between the legislature and judiciary which, according to Montesquieu, is an essential guarantee of freedom. Thus it could be said that the adoption of the Rules of the Tribunal in May 1995 represented an enterprise "for which there is no precedent at the international level."(14) Had he been less self-confident and egotistic in his unexpected role of being his own legislator, he would have had to ask himself very seriously if there could possibly be a valid reason for this unprecedented breach of a practice inviolable in any civilized country.

There are, of course, countries where judge made law is applied, e.g. common law in England. However this law is not the fruit of a premeditated and momentary enterprise by a single court but the product of all the courts as a unified system and over a considerable period of time, lasting several centuries. This is why English judges firmly believe that they are judging according to a law that was created by others. They do not have the satisfaction that was granted Antonio Cassese, of creating the general rules according to which they will judge.

If the International Tribunal is only partially responsible for its role as legislator with regard to the adoption of its own Rules due to the fact that this "advantage" vas delegated to it by the Security Council, it is generally responsible for its further delegation to the Prosecutor. This is also an enterprise unprecedented in recent history. Had the International Tribunal appreciated the equality of both parties, it should have gone one step further and authorized the defense counsel to prescribe its own general regulations for the defense of its client. This would also have represented a significant and unexpected innovation to modern criminal procedural law.

The Prosecutor as Organ of the Tribunal and as Privileged Party

The next feature whereby the Security Council and the International Tribunal "enriched" legal theory and practice was the exceptional position that was bestowed on the Prosecutor. In a well structured legal system, e.g. common law, the prosecutor is only one of two equal parties in a court dispute, so that with regards to the status of both sides - the prosecutor and the accused - and the possibility of their reaching a settlement, a criminal dispute assumes some of the aspects of a litigation. Under these circumstances the procedure becomes truly contradictory in that the two sides contest each other on a completely equal basis, whereas the court as a third, independent and unbiased party, resolves the litigation and passes judgment.

The Security Council and the International Tribunal discarded this concept of criminal litigation and the total equality of each party in order to award the Prosecutor a privileged position by making him a part of the court. In Article 11 of the Statute of the International Tribunal it is explicitly stated that the Prosecutor is an organ of the Tribunal. This is followed by a series of regulations that confirm this exceptional and obviously privileged status of the Prosecutor. Rule 33 stipulates that the registrar of the Tribunal serves not only the chambers and plenum of the Tribunal but every judge and the Prosecutor, meaning that the registrar is common to them all. Under Rule 29 the Prosecutor is given the right to summon and question suspects, victims and witnesses, record their statements, collect evidence and conduct on-site investigations. Again, in a well organized judiciary system this is done by the police up until an inquiry is instigated, whereupon it is taken over by the investigating judge. This is the only way to ensure the contradiction of procedure and the equality of both parties - the Prosecutor and accused.

However, the creators of the Statute and Rules of the International Tribunal made an unforgivable mistake. With one stroke they made the Prosecutor part of the Tribunal as well as a party before justice. Rule 2 names the prosecutor and accused as the parties, but then by virtue of a series of other regulations, their equality in the court proceedings comes under serious doubt. Thus, for instance, the Prosecutor, as a litigation party, may propose amendments to the Rules (Rule 6), while the accused and his defense counsel may not. Also, the Trial Chamber (Rule 46) may, after a warning, refuse audience to counsel if, in its opinion, his conduct is offensive, abusive or otherwise obstructive to the proper conduct of the proceedings. It occurred to none of the makers of these Rules to allow for the possible removal of the Prosecutor in the case of his behavior being offensive and abusive to the accused, his defense counsel or indeed the judges themselves. According to Rule 66 paragraph (C) the Prosecutor may, with the approval of the Trial Chamber, refuse the defense access to books, documents, photographs and tangible objects in his custody if this is considered to be contrary to public interest or affect the security interests of any state. The Trial Chamber debates this request in camera (in the absence of either party or the public) and the Prosecutor is obliged to give his reasons why this evidence (books, documents, photographs and tangible objects) should be confidential only to the Trial Chamber, meaning that the defense counsel does not have to be present.

The creators of this special position of the Prosecutor, who is at the same time part of the court and one of the two contesting parties, probably consider themselves to be very innovative. If they were better acquainted with the history of the Ottoman Empire they would remember that this position was held by Turkish Cadis (civil judges). That is why we have the saying: "the Cadi prosecutes you, the Cadi sentences you".

The Secrecy of the Indictment and Unauthorized Collection of Evidence

This exceptional and in many ways unacceptable, position of the Prosecutor is just one of the "innovations" by which the makers of the Statute and Rules of the International Tribunal "enriched" criminal procedural law. Another was the possibility of keeping secret the indictment trial and testimonies under conditions that spawn arbitrariness and considerable departures from the usual standards of modern procedural law. According to Rule 53 paragraph (B) the judges or the Trial Chamber can, after consulting the Prosecutor, prohibit the "disclosure of an indictment, or part thereof, or of all or any part of any particular document or information" if it is necessary "to protect confidential information obtained by the Prosecutor or is otherwise in the interests of justice". The Rule makers, however, did not deem it necessary to further define "confidential information" or "interests of justice", thereby leaving their interpretation open to the will or arbitrariness of the Prosecutor, judges and Trial Chamber.

Apart from facts, documents and information that can be concealed from the general public, there is information that can be denied the defense. This is information whose disclosure, for any reason "may be contrary to public interests or affect the security interests of any state" (Rule 66 paragraph (C)). This can be assumed to concern information collected by the CIA, and that is why such information should be kept secret in order to hide its source, and especially the manner in which it was collected. This involves unauthorized bugging and the recording of telephone conversations, fax messages, wireless messages, filming by satellites and pilotless aircraft unauthorized to overfly the war zones in the former Yugoslavia, as well as data and information collected by secret agents disguised as humanitarian workers or employees of the UN, Red Cross and other governmental and non-governmental organizations.

There is nothing unusual in the illegal collection of information by the US, British or Russian secret services. The trouble lies in the penchant of the Prosecutor and Hague Tribunal not only to use illegally obtained information, but also by denying the public knowledge of the indictment and, trial to conceal the source of the information on which the indictment, evidence and subsequent verdict rest. With the excuse of protecting public interest and/or the security interests of a state, they are no doubt capable of going so far as to refuse the defense counsel the right to study the evidence, data, documents, photographs and tangible objects on whose existence an indictment rests. Were a prosecutor in the US to try to use unauthorized recorded telephone calls against an accused, this would be momentarily rejected by the court. Unlike this civilized practice, everything was permitted to The Hague Tribunal including the use of illegally obtained intelligence data and the concealment of its source. 


(10) This was noted by the UN Secretary General in his report S/25704 (section 18) of 3 May 1993.

(11)The Statute of the International Court of Justice at The Hague is incorporated into the UN Charter and accepted as such by the member states

(12)Report of the Secretary General S/25704 (see 23) of 3 May 1993

(13) Ibid, sec 29

(14)Preface to a book publishing all the more important document of the International Criminal Tribunal at The Hague. 

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Last revised: April 11, 1997