The International Criminal Tribunal for the former Yugoslavia and the Kosovo conflict
31-03-2000 Article, International Review of the Red Cross, No. 837, by Sonja Boelaert-Suominen
Sonja Boelaert-Suominen has law degrees from the University of Leuven and from Harvard Law School, and a Ph.D. from the London School of Economics. At the time of writing this article she was with the Legal Advisory Section of the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY). The views expressed in this article are those of the author and do not necessarily represent those of the United Nations.
The purpose of this article is to discuss the legal basis for the activities of the International Criminal Tribunal for the former Yugoslavia (ICTY) in relation to Kosovo. The article starts with an account of the general background against which the Tribunal was established in 1993. The events which led to the Tribunal's involvement with Kosovo in 1998/99 in particular are summarized in the second part. The third part discusses in detail the Tribunal's mandate in respect of Kosovo, and highlights some of the jurisdictional prerequisites that need to be met under various provisions of the ICTY Statute. The article ends with observations on the division of labour between the Tribunal and the judicial authorities in Kosovo.
The ICTY and the conflict in the former Yugoslavia from 1991 to 1995
Unlike the International Military Tribunals of Nuremberg and Tokyo, which were established after the defeat and surrender of the Axis countries, the ICTY was set up in 1993 at a time when th e conflict in the Socialist Federal Republic of Yugoslavia (SFRY) was still ongoing. It will be recalled that the outward disintegration of the SFRY began when Slovenia and Croatia proclaimed their independence on 25 June 1991 [1 ] . The Yugoslav People's Army (JNA) forces moved against Slovenia on 27 June 1991. A peace agreement was reached on 8 July 1991. This was followed by fighting in Croatia, which started in July 1991 between Croatian military forces on the one hand, and the JNA, paramilitary units and the “Army of the Republic of Srpska Krajina” on the other. Major assaults on Vukovar and Dubrovnik took place before the end of 1991. Macedonia sought international recognition as an independent republic from December 1991 onwards, but because of difficulties over its name, it was not admitted to the UN until April 1993 under the provisional name of FYROM (the'Former Yugoslav Republic of Macedonia') [2 ] . It is the only former Yugoslav republic that has thus far not been the scene of any fighting.
Bosnia and Herzegovina proclaimed its independence on 6 March 1992. This was challenged militarily by JNA forces and their allies who had withdrawn from Croatia. Initially, they were opposed by Croats and Muslims who fought side by side in Bosnia and Herzegovina. On 27 April 1992, Serbia and Montenegro [3 ] declared that they continued the legal personality of the former Yugoslavia, and would henceforth be known as the Federal Republic of Yugoslavia (FRY) [4 ] . In response to international pressure, the JNA ostensibly withdrew from the territory of Bosnia and Herzegovina, a process which was allegedly completed by 19 May 1992. Soon after, the erstwhile alliance between Croats and Muslims broke down and the first clashes between these two parties were reported in Central Bosnia.
In the summer of 1992, news about the establishment of concentration camps started to reach the outside world. By the end of that year, 6,000 UNPROFOR troops had b een sent to Bosnia. The Vance-Owen plan was agreed in January 1993. Shortly thereafter, the ICTY was established via the mechanism of Security Council resolutions, adopted under Chapter VII of the UN Charter, as a measure aimed at restoring international peace and security [5 ] . Barely three months later the Security Council, by Resolution 827 (1993) of 25 May 1993, adopted a statute for the Tribunal. The first judges were elected on 17 September 1993, and the Tribunal commenced its work in The Hague on 17 November 1993. On 4 November 1994, the Tribunal issued its first indictment [6 ] . However, the establishment of the Tribunal failed to deter further atrocities [7 ] . Active hostilities in Bosnia and Herzegovina ceased only with the signing of the Dayton peace agreement in December 1995.
Since its establishment, the ICTY has become a fully- fledged international criminal institution, with the infrastructure, prosecutorial, judicial and administrative procedure necessary to the fulfilment of its mandate as set out in Security Council Resolution 827 (1993) of 25 May 1993. The Tribunal consists of three organs: the Chambers, the Office of the Prosecutor and a Registry. It now has three Trial Chambers each made up of three judges, and an Appeals Chamber, made up of five judges. It currently has a budget of nearly $100 million and employs more than 700 staff members. [8 ]
The Office of the Prosecutor has a dual role: investigating violations of international humanitarian law and prosecuting cases of such violations in court. Since its inception in 1993, 91 individuals have been publicly indicted [9 ] . Additional undisclosed indictments may also have been confirmed [10 ] . A deliberate effort was made to devote resources to investigate alleged offences in an even-handed manner [11 ] . Of the publicly named indictees, a small number were Muslim, around fifteen were Croats and the largest number were Serbs. Up until the beginning of 1998, the investigative and prosecu torial activities of the ICTY concerned crimes committed in Croatia and in Bosnia and Herzegovina from 1991 to 1995. As will be explained in the next section, the Tribunal's public involvement in Kosovo began in 1998, when the Prosecutor established a first investigative team focusing on Kosovo.
Chronology of the ICTY's involvement in Kosovo
While the wars were being waged in Slovenia, Croatia, and Bosnia and Herzegovina, the situation in Kosovo was tense. In the mid-1990s a faction of the Kosovo Albanians formed the Kosovo Liberation Army (KLA, or UCK), which fought the Serbian police forces from mid-1996 on. The Tribunal's public focus on Kosovo can be traced back to March 1998, when the then Chief Prosecutor, Justice Louise Arbour, publicly confirmed that the territorial and temporal jurisdiction of the Tribunal covered any serious violations of international humanitarian law taking place in Kosovo, emphasizing that she was empowered to investigate such crimes [12 ] . The immediate cause for this public statement was the marked intensification, from February 1998 onwards, of the conflict between the KLA and the FRY forces.
According to the Prosecutor's information at that time, a number of Kosovo Albanians and Kosovo Serbs were killed or wounded, whilst the FRY forces engaged in a campaign of shelling of predominantly Kosovo Albanian towns and villages, widespread destruction of property and expulsions of the civilian population from areas in which the KLA was active. [13 ]
Also in response to the intensifying conflict, the UN Security Council passed Resolution 1160 on 31 March 1998 “condemning the use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo” and imposed an arms embargo on the FRY. Acting under Chapter VII of the UN Charter, the Security Council agreed t hat the Prosecutor should begin gathering information related to violence in Kosovo that may fall under the Tribunal's jurisdiction. The Prosecutor proceeded to request information from States and organizations about violent incidents in Kosovo. Subsequently the General Assembly, in May 1998, approved a budget request enabling the Prosecutor to recruit a team to undertake preliminary investigations. [14 ]
During the next six months, the ICTY conducted investigations in Kosovo against the backdrop of a steadily worsening situation. On 7 October 1998, the Belgrade authorities suddenly declared that they would no longer issue visas to the ICTY investigators whose activities the FRY considered a violation of its sovereignty.15 The Prosecutor's reaction to this refusal was firm. In a public statement she said that the jurisdiction of the Tribunal was not conditional upon the consent of the Belgrade authorities, but that it was up to the ICTY Judges to interpret such jurisdiction and for the Security Council to modify or to expand it. She forwarded a letter to President Milosevic informing him that it was her intention to resume investigations in Kosovo and to personally visit the areas where some of the alleged crimes had been committed. [16 ]
This was underscored by Resolution 1203 adopted on 24 October 1998, in which the Security Council called for prompt and complete investigation of all atrocities and full cooperation with the ICTY. Yet on 4 November 1998, the FRY authorities again refused [17 ] . In response, the Security Council passed Resolution 1207 on 17 November 1998, calling upon the authorities of the FRY and the leaders of the Kosovo Albanian community to cooperate fully in such an investigation. Meanwhile, in an attempt to defuse tensions in Kosovo, negotiations were conducted between the President of the FRY, representatives of NATO, and the Organization for Security and Co-operation in Europe (OSCE). It was agreed, in addition, that the OSCE would establish a Kosovo Verification Mission (KVM) to observe compliance on the ground and that NATO would establish an aerial surveillance mission. The establishment of the two missions was endorsed by UN Security Council Resolution 1203. On 16 October 1998 an “Agreement on the OSCE Kosovo Verification Mission” was concluded, pursuant to which “verifiers” were deployed throughout Kosovo in the autumn and winter of 1998/99. However, the deployment of OSCE verifiers failed to halt even the escalation of hostilities. In one incident, on 15January 1999, 45 unarmed Kosovo Albanians were murdered in the village of Racak [18 ] . The Tribunal's Chief Prosecutor travelled to Skopje (Macedonia) with the intention of proceeding to Kosovo to investigate the reported atrocities in Racak, but was refused entry by the FRY authorities. [19 ]
The six-nation Contact Group established by the 1992 London Conference on the Former Yugoslavia met on 29 January. It was agreed to convene urgent negotiations between the parties to the conflict, under international mediation. These led to initial negotiations in Rambouillet, near Paris, from 6 to 23 February, followed by a second round in Paris, from 15 to 18 March. At the end of the second round of talks, the Kosovar Albanian delegation signed the proposed peace agreement, but the talks broke up without a signature from the FRY delegation. Thus, the intense peace negotiations conducted under international auspices ended in failure. On 20 March, the OSCE Kosovo Verification Mission was withdrawn from the region. On 24 March 1999, NATO began launching air strikes (Operation Allied Force) against the FRY. According to the ICTY Prosecutor, the FRY and Serbia reacted by intensifying their systematic campaign of persecutions, deportation and murder waged against the ethnic Albanians in Kosovo [20 ] . On 26 March 1999
, the Prosecutor of the ICTY took the unusual step of addressing herself directly to President Milosevic and other senior offic ers, reminding them of their obligations under international law. [21 ]
On 22 May 1999, the ICTY issued its most significant indictment thus far, when it charged a sitting head of State and several other high-level officials of the governments of the FRY and Serbia with war crimes and crimes against humanity in relation to the conflict in Kosovo.22 According to an announcement made on 27 May 1999 by the ICTY Chief Prosecutor, an indictment [23 ] and arrest warrant [24 ] had been issued against five individuals: Slobodan Milosevic, the President of the FRY, Milan Milutinovic, the President of Serbia, Nikola Sainovic, Deputy Prime Minister of the FRY, Dragoljub Ojdanic, Chief of Staff of the Yugoslav Army and Vlajko Stojiljkovic, Minister of Internal Affairs of Serbia. This indictment and the ensuing arrest warrant are notable on several counts. The indictment is the first in the history of this Tribunal to charge a head of State during an ongoing armed conflict with the commission of serious violations of international humanitarian law. Furthermore, the indictment and the arrest warrants were sent simultaneously to the Federal Minister of Justice of the FRY, to all UN member States, and to Switzerland [25 ] . In an equally unprecedented move, the United Nations member States were also ordered to make inquiries to discover whether any of the accused had assets located in their territory and, if so, to freeze such assets until the accused are taken into custody [26 ] . Moreover, it is the first indictment issued in relation to the conflict that engulfed Kosovo in 1999. The indictment alleges that, between 1 January and late May 1999, forces under the control of the five accused persecuted the Kosovo Albanian civilian population on political, racial or religious grounds.
By the date of the indictment, it was reported that approximately 740,000 Kosovo Albanians, that is about one-third of the entire Kosovo Albanian population, had been expelled from Kosovo. Thou sands more were believed to be internally displaced. An unknown number of Kosovo Albanians have been killed in the operations by FRY forces and by the Republic of Serbia [27 ] . Specifically, the five indictees are charged with the murder of over 340 persons identified by name in an annex to the indictment. Each of the accused is charged with three counts of crimes against humanity (persecutions, murder and deportation) and one count of violations of the laws or customs of war. The Prosecutor gave the clarification that whilst the present indictment was based exclusively on crimes committed since the beginning of 1999 in Kosovo, she would be able to expand on the charges, suggesting that incidents committed in Croatia and Bosnia might well be added, as well as charges against other suspects of crimes in Kosovo. [28 ]
On 3 June 1999, the FRY accepted the terms brought to Belgrade by EU envoy Ahtisaari and Russian envoy Chernomyrdin. NATO suspended air strikes over the FRY on 9 June 1999, the day on which the “international security force” (KFOR) and military representatives of the FRY and the Republic of Serbia signed a Military Technical Agreement (MTA). This agreement immediately entered into force; the FRY forces and their allies thereupon ceased hostilities in Kosovo and commenced a phased withdrawal. On 20 June 1999 FRY forces were certified as being out of Kosovo and NATO declared a formal end to its bombing campaign against the FRY. On 21 June 1999 KFOR and the KLA concluded a Demilitarization Agreement whereby the KLA undertook to cease hostilities immediately (including firing of all weapons, attacking, detaining or intimidating civilians in Kosovo, and reprisals), and to demilitarize itself within 90 days. [29 ]
On 10 June the UN Security Council passed a resolution (1244) welcoming the acceptance by the FRY of the principles on a political solution to the Kosovo crisis, including an immediate end to violence and a rapid withdrawal of its military , police and paramilitary forces. This resolution, adopted by a vote of 14 in favour and none against, with one abstention (China), made known the Security Council's decision to deploy “international civil and security presences” in Kosovo, under UN auspices. The Security Council thus authorized member States and relevant international organizations to establish the international security presence and decided that its responsibilities would include deterring renewed hostilities, demilitarizing the KLA, and establishing a secure environment for the return of refugees and displaced persons and in which the international civil presence could operate. The Security Council also authorized the UN Secretary-General to establish the international civil presence and requested him to appoint a Special Representative to control its implementation. On 12 June 1999, Secretary-General Kofi Annan presented to the Security Council an operational concept of what has since come to be known as the United Nations Interim Administration Mission in Kosovo (UNMIK). The FRY officially lifted the state of war on 26 June 1999.
Six months after these events, Kosovo has undergone profound changes, and most of Kosovo's Albanians are no longer suffering from the repressive FRY regime. However, the international community is now gravely concerned about the plight of Kosovo's current non-ethnic-Albanian minorities, especially the Serb and Roma (gypsy) populations. According to the United Nations High Commissioner for Refugees, more than 164,000 have left Kosovo, whilst others have moved to enclaves under the protection of KFOR [30 ] . As will be discussed later on in this article, several of these minorities are now being subjected to revenge attacks.
In a briefing to the Security Council on 10 November 1999, the newly appointed Chief Prosecutor for the Tribunal, Carla del Ponte, reported that after five months of investigation by forensic specialists from 14 countries , the Tribunal has received reports of 11,334 bodies in 529 gravesites, including sites where bodies were found exposed. Approximately 195 of those sites, she reported, had been examined to date, and 2,108 bodies had been exhumed from gravesites. The Chief Prosecutor added that this figure did not necessarily reflect the total number of actual victims from the sites so far investigated because there was evidence of tampering with graves. There were also a significant number of sites where the precise number of bodies could not be counted. She announced that 300 mass graves would need to be examined in the year 2000. [31 ]
Legal basis for the ICTY's involvement in Kosovo
The jurisdiction of the ICTY over serious violations of international humanitarian law committed in Kosovo is indisputable under the mandate established by UN Security Council Resolution 827, and has been repeatedly reaffirmed by the UN Security Council in its resolutions on Kosovo, as well as by the Tribunal itself.
The legal basis for the Security Council's involvement in Kosovo is formed by Security Council resolutions adopted under Chapter VII of the UN Charter. The most important of these is Resolution 827 (1993) of 25 May 1993, on the establishment of the ICTY and the adoption of its Statute, which was preceded by a series of resolutions taken under the same chapter [32 ] . In one of these, Resolution 808 (1993) of 22 February 1993 [33 ] , the Security Council requested the UN Secretary-General to prepare a draft Statute for an 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. The Security Council did not indicate how such an international tr ibunal was to be established. It was left to the Secretary-General to examine the options. In his report to the Security Council, the Secretary-General explained that the treaty approach would not be suitable: it would require considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force. Even then, there could be no guarantee that ratifications would be received from those States (read: the successor States of the SFRY) and which should be parties to the treaty if the treaty were to be truly effective. The Secretary-General then suggested that the International Tribunal should be established by a decision of the Security Council on the basis of Chapter VII of the Charter of the United Nations. He argued in his report that such a decision would constitute a measure to maintain or restore international peace and security, following the requisite determination of the existence of a threat to the peace, breach of the peace or act of aggression. [34 ]
Establishing an international criminal tribunal by way of a Security Council resolution was an unprecedented move, and not without legal risks. Unsurprisingly, the legitimacy of the Tribunal's establishment has been widely commented upon [35 ] , and was challenged in the very first case which the Tribunal had to examine on its merits [36 ] . In Prosecutor v. Dusko Tadic the Defendant argued, inter alia , that the Security Council had exceeded its powers under Chapter VII, because that Chapter did not authorize the Council to create a judicial tribunal as a measure to address a threat to international peace and security. In reply, the Appeals Chamber held that Chapter VII in general and Article 41 of the UN Charter in particular conferred on the Security Council a broad, although not unlimited, discretion regarding the measures which are appropriate to address a threat to international pe ace and security. It further reasoned that since the Council had already determined that the war crimes perpetrated in the former Yugoslavia were exacerbating a threat to international peace and security and the concept of individual criminal responsibility has long been seen as one of the means by which international law seeks to deter, or prevent repetition of, war crimes, the establishment of the Tribunal could not be said to have been manifestly outside the scope of the Council's powers under Chapter VII [37 ] . It is not certain, however, whether the matter of the legality of the establishment of the Tribunal by way of a Chapter VII resolution has therefore been laid to rest. [38 ]
In the light of the mandate of the Tribunal, and in view of its jurisdictional competence, which will be discussed below, there was no need for a separate Security Council resolution authorizing the Tribunal's involvement in Kosovo. Nevertheless, in view of the steadily worsening situation in Kosovo in the year leading up to NATO's Operation Allied Force , the Security Council repeatedly confirmed the ICTY's (and in particular, the Prosecutor's) jurisdiction over that territory. In Resolution 1160 of 31 March 1998, mentioned above, the Council requested the Prosecutor to begin gathering information related to violence in Kosovo that may fall under the Tribunal's jurisdiction [39 ] . In Resolution 1203 of 24October 1998, the Security Council called “for prompt and complete investigation, including international supervision and participation, of all atrocities committed against civilians and full cooperation with the International Criminal Tribunal for the former Yugoslavia, including compliance with its orders, requests for information and investigations”. When on 4 November 1998, the FRY authorities reiterated their refusal to let the Prosecutor conduct investigations in Kosovo [40 ] , the Security Council passed Resolution 1207 on 17 November 1998, calling upon the authorities of the FRY and the leaders of the Kosovo Albanian community to cooperate fully with the Prosecutor in the investigation of all possible violations within the jurisdiction of the Tribunal.
Under Article 25 of the UN Charter, all UN member States are obligated to “accept and carry out the decisions of the Security Council”, including, of course, those taken under Chapter VII in matters affecting international peace and security. Furthermore, Article 103 of the Charter stipulates expressly that in “the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement”, the Charter obligations prevail. In addition, Article 2 (7) of the UN Charter makes clear that intervention by the Security Council under Chapter VII of the Charter cannot be opposed by member States on the ground that the matters concerned would fall within their domestic jurisdiction [41 ] . Therefore, since the ICTY was established under Chapter VII of the UN Charter with power to prosecute serious violations in the (entire) territory of the former Yugoslavia, the FRY could not legitimately oppose the conduct of investigative activities by the ICTY Prosecutor in relation to Kosovo. In addition, any UN member State, including the FRY, is obligated to arrest suspects and surrender them to the Tribunal for trial. No State may rely upon its internal law as a justification for failing to comply with its international obligations in this respect. For instance, if the ICTY has made a request for assistance to a State, the latter is bound to comply, regardless of whether it has enacted the necessary legislation and whether or not its municipal laws, for example, authorize extradition or surrender of suspects in the subject matter at hand. [42 ]
In this connection it should be noted, however, that the legal status of the FRY under international law i s still controversial [43 ] . On 27 April 1992 the two remaining SFRY republics, Serbia and Montenegro, declared that they were the legal successor to the SFRY and would henceforth be known as the “Federal Republic of Yugoslavia”. In addition, a formal declaration was adopted to the effect that the “Federal Republic of Yugoslavia, continuing the State, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally” [44 ] . Most UN member States, however, officially dispute that the FRY would simply be the continuation of the SFRY. They take the view that the SFRY has ceased to exist and claim that the FRY needs to apply afresh to the UN for membership. Since it has not done so, it has been claimed that the FRY is not a member of the UN. In recent legal proceedings before the International Court of Justice, several NATO countries put forward similar claims arguing that the FRY could not be considered a party to the ICJ Statute since it was not a UN member [45 ] . The ICJ decided, once again, that there was no need for it to decide this question, in view of its earlier finding that the declaration by which the FRY accepted the ICJ's jurisdiction did not apply ratione temporis . Only two judges addressed the issue of Yugoslavia's UN membership, arguing against it, whereas the FRY Judge ad hoc believed that Yugoslavia is a member of the United Nations. [46 ]
The present author is of the view that the legal basis for denying the FRY lack of status within the United Nations is tenuous. In addition, because the Chapter VII powers of the Security Council are mandatory only for UN member States, one wonders how the imposition of Chapter VII measures on a State which is supposedly no longer a UN member could possibly be justified. Furthermore, it shou ld be noted that while the FRY is currently barred from participating in the activities of the General Assembly and the work of the UN, the Economic and Social Council and many other subsidiary organs, it has not been formally expelled or suspended from the UN organization, and continues to be listed as a UN Charter party. Finally, it needs to be stressed that the uncertain status of the FRY as a UN member should not be confused with its status under multilateral treaties, nor with its obligations under international humanitarian law. “Yugoslavia” continues to be mentioned as party to all conventions, and it has repeatedly confirmed, in response to explicit questions, that it considers itself bound by these. [47 ]
2. Jurisdictional aspects
The Tribunal's mandate is to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in order that such violations be halted and effectively redressed, that an end be put to such crimes, that their perpetrators be brought to justice and that peace be restored and maintained. Pursuant to Article 1 of the Statute the Tribunal has jurisdiction in respect of four categories of “serious violations of international humanitarian law” committed by individuals in the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions (Article 2); violations of the laws and customs of war (Article 3); genocide (Article 4) and crimes against humanity (Article 5).
World War II engulfed many nations and ultimately extended throughout much of the world. There was no obvious restriction to the competence ratione loci of the International Military Tribunals established after the Second World War. By contr ast, the ICTY's competence is geographically limited. Articles 1 and 8 of the Statute confer jurisdiction to try offenders for crimes committed in the territory of the former Yugoslavia only [48 ] . Before it disintegrated, the SFRY was made up of six republics. What is now known as the Federal Republic of Yugoslavia (FRY) comprises only the rump of what used to be the Socialist Republic of Yugoslavia (SFRY), namely Serbia and Montenegro. Regardless of the legal status that Kosovo may have enjoyed under domestic law prior to -- and during -- the break-up of the SFRY, there is no doubt that it is covered by the ICTY's geographical jurisdiction provision.
During NATO's Operation Allied Force , there were several press reports speculating on the spread of the Kosovo crisis to Macedonia (Former Yugoslav Republic of Macedonia -- FYROM). Since Macedonia used to form part of the SFRY, the ICTY would undoubtedly be competent to try any violations of the laws of armed conflict committed in the territory of the FYROM, had the Kosovo crisis spread to that territory. Similar conclusions would be drawn if the Kosovo conflict had spread to the other republics which emerged after the collapse of the SFRY, i.e. the Republics of Croatia and Slovenia and of course the Republic of Bosnia and Herzegovina.
Articles 1 and 8 of the ICTY Statute indicate that there is also a temporal limitation to the jurisdiction of the ICTY. The Tribunal can be seized only of cases involving offences committed in the SFRY since 1 January 1991. The dies a quo mentioned in the Statute therefore left enough leeway for the Prosecutor to start investigating potential crimes in Kosovo, three years after the conclusion of the Dayton accords which signified the end of hostilities i n Bosnia and Herzegovina [49 ] . It should be noted that there is no express end to the competence ratione temporis of the Tribunal in its Statute: Articles 1 and 8 mention only a dies a quo , but not a dies ad quem . Paragraph 2 of Resolution 827 (1993) of 25 May 1993, by which the Security Council adopted the ICTY Statute, states that the Tribunal is established “for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace”. Consequently, since the Tribunal was set up as a measure for the restoration of international peace and security, it would be up to the Security Council to decide that the ICTY has served its purpose [50 ] . Thus far, the Security Council has not amended the Statute or taken other action to set a date for the end of the temporal jurisdiction. For example, at this point in time there has been no resolution that peace has been restored in the SFRY. Another way in which the Tribunal's jurisdiction might -- conceivably -- end is when there are no longer any serious violations of international humanitarian law that would need to be brought before the ICTY. For the first time since the ICTY's establishment, its Chief Prosecutor has suggested a date for the completion of the pre-indictment investigative activities by her office. In a recent statement she indicated that in addition to the 19 ongoing investigations, another 17 will have to be completed before the Prosecutor can indicate to the Security Council that the Tribunal's investigative mandate is exhausted. These investigations, numbering 36 in total, and involving around 150 suspects, should be completed progressively over the next four years, thus by the end of 2004. [51 ]
On the other hand, as will be explained below, any decision of the Tribunal on its competence ratione temporis is narrowly linked to the definition of armed conflict. Except for the charge of genocide (Article 4), the Prosecutor needs to prove for each other category of charges, i.e. grave breaches (Article 2), violations of the laws or customs of war (Article 3) and crimes against humanity (Article 5), that there was a sufficient nexus between the alleged offence and an armed conflict.
Existence of armed conflict
The test for the existence of armed conflict formulated by the Appeals Chamber in the Tadic Jurisdiction Decision was formulated in very broad terms as follows: “… an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”. [52 ]
In light of this test there is little doubt that the conflict in Kosovo, which between March and June 1999 involved the FRY, the KLA and NATO countries and was waged mainly in the territory of the FRY, falls within the jurisdiction of the Tribunal. This does not mean that it may be easy to pinpoint the exact date on which the armed conflict in Kosovo started. The FRY claimed before NATO's Operation Allied Force that the FRY operations in Kosovo against the KLA were simply aimed at suppressing an internal terrorist movement, and that the ensuing hostilities did not rise to the threshold level of armed conflict required for the application of international humanitarian law [53 ] . By contrast, in July 1998 the ICTY Prosecutor made clear that she was firmly of the view that the situation in Kosovo represented an armed conflic t within the terms of the mandate of the Tribunal [54 ] . Many of the resolutions adopted by the Security Council before NATO's Operation Allied Force , which were discussed above, can be seen as authoritative endorsements of the Prosecutor's view that the conflict in Kosovo reached the requisite level of intensity to be considered an armed conflict for the purposes of the 1949 Geneva Conventions and under Article 3 of the ICTY Statute. On the other hand, it will be more difficult to deny the status of armed conflict to the hostilities between NATO and the FRY as a result of Operation Allied Force. There is little doubt that these reached the level of intensity necessary to trigger the application of international humanitarian law.
As pointed out by the Appeals Chamber in the Tadic Jurisdiction Decision , international humanitarian law applies generally, from the initiation of armed conflicts, and extends beyond the cessation of hostilities until a general conclusion of peace is reached or, in the case of internal conflicts, a peaceful settlement is achieved [55 ] . The above chronology of the Kosovo crisis shows that there may be some uncertainty as to the precise date of the end of the “armed conflict” in Kosovo. Yet regardless of this difficulty in that some charges under the ICTY Statute must be linked to the existence of an armed conflict, it would be impossible to prejudge the temporal limits to the Tribunal's jurisdiction. Its mandate may include crimes committed against individuals or populations after the formal end of hostilities in Kosovo, and even after the armed conflict, as a matter of law, ceased to exist.
In its decision of 2 October 1995 on jurisdiction in the Tadic case, the Appeals Chamber pointed out that the temporal scope of the applicable rules clearly reaches beyond the actual hostili ties, in particular insofar as detainees and other protected persons are concerned [56 ] . This is confirmed by a series of provisions of the 1949 Geneva Conventions for the protection of war victims and of their 1977 Additional Protocols stating that certain categories of persons will continue to benefit from the protection of international humanitarian law for as long as necessary. Article 6 of the Fourth Geneva Convention, on the protection of civilians, stipulates that it applies “from the outset of any conflict or occupation mentioned in Article 2”, and that it shall cease to apply “on the general close of military operations”. However, it also specifies that protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by that convention. Similar provisions relating to the cessation of POW status are included in the Third Geneva Convention on the protection of prisoners of war: Article 5 thereof stipulates that it shall apply to them from the time they fall into the power of the enemy and until their final release and repatriation. Article 6 of the same Convention provides that prisoners of war “shall continue to have the benefit of such agreements as long as the Convention is applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties to the conflict”.
These provisions have been expanded by Article 3 of Protocol I, on international armed conflict, which has abolished the cut-off date of one year after the close of military operations in the case of occupied territory [57 ] . Without a doubt, the most striking provision in this regard is Article 2 of Additional Protocol II, on non-international armed conflict. It specifies in paragraph 2 that at the end of the conflict all the persons who have been deprived of their liberty or whose liberty has been restricted for reasons related to such conflict, as well as those deprived of their liberty or whose liberty is restricted after the conflict for such reasons, shall continue to benefit from the provisions regarding humane treatment. Consequently, for people who are detained, the thrust of the above provisions is the same: as long as these people are not released, repatriated or re-established, they will continue to benefit from the protection of the Geneva Conventions.
Consequently, once certain persons are protected by the conventions, this protection does not cease merely because of the end of the armed conflict. Together, the above provisions would enable the ICTY Prosecutor to investigate and prosecute crimes committed against persons who continue to be detained at various locations in Serbia or Kosovo, and even against persons detained after the end of the conflict in Kosovo. For example, there are a great number of ethnic Albanians who were reportedly taken into custody by Serbian forces during the NATO bombing campaign. In August 1999, human rights groups claimed that 2,000 Albanian Kosovars were in detention in Serbia, that at least 1,500 others were unaccounted for, and that the lists were growing daily [58 ] . On 20 October 1999, the United Nations human rights office revealed that it had asked the government of the FRY for a list of all Kosovar citizens being held in Serbia. The number of detainees cited in this request had risen to more than 5,000. This figure includes not only those detained during NATO's Operation Allied Force ; the FRY Justice Minister was asked to account for all Kosovars detained in the territory before March 1999, those held in Serbia after that date and all who have been released from Serbian prisons. The FRY government has since acknowledged that approximately 1,900 Kosovar Albanians are being held in 13 different detention facilities in Serbia [59 ] . Hundreds of those detained during O peration Allied Force are now facing terrorism charges in the FRY. [60 ]
A second example of the potential far-reaching temporal jurisdiction of the Tribunal are atrocities committed against minorities in Kosovo since the end of NATO's Operation Allied Force . A senior NATO military official has admitted that nearly six months after NATO's air campaign against Serbia, ethnic violence remains the alliance's biggest headache, calling it a situation of “reverse ethnic cleansing” [61 ] . According to a recent OSCE report on the human rights situation in Kosovo since the end of NATO's Operation Allied Force , the desire for revenge has been the primary motive for the vast majority of human rights violations that have taken place. Kosovo Serbs, Roma, Muslim Slavs and others who are perceived to have collaborated actively or passively with the Serb security forces have been targeted for killing, expulsion, harassment, intimidation, house-burning and abduction. [62 ]
It is difficult to prejudge in the abstract whether such instances would fall under the jurisdiction of the ICTY. Except for the charge of genocide, the ICTY Statute requires a nexus with the armed conflict in Kosovo, even if the act or acts to which the charge relates would not be a war crime (Articles 2 or 3) but would amount to a crime against humanity (Article 5) [63 ] . Proving the link with an armed conflict may be difficult, especially when the perpetrators are civilians who are carrying out revenge attacks against the few remaining non-ethnic Albanian citizens of Kosovo. For now, the ICTY is keeping its options open and is investigating reports of atrocities committed after the end of NATO's Operation Allied Force . For example, in a reaction to reports of the killings of 14 Serb villagers near Lipljan, around mid-July 1999, the Prosecutor instructed ICTY investigators to begin an investigation in cooperation with KFOR and UNMIK. She explicitly confirmed that the ICTY's jurisdiction covers all serious violations of international humanitarian law committed in the territory of the former Yugoslavia, including Kosovo, since 1991, and that this jurisdiction includes offences committed before and after the formal end of the NATO bombing campaign on 20 June 1999. [64 ]
Existence of an international armed conflict
In order to successfully press charges under Article 2 of the Tribunal's Statute in relation to the Kosovo conflict, it would not be sufficient for the Prosecutor to prove that the level of hostilities on that territory reached the intensity of an armed conflict. It would have to be established that the conflict between the parties was international in nature, and that the accused committed one of the crimes referred to in Article 2 of the Statute against victims or property protected by the Geneva Conventions. [65 ]
Determination of the character of the conflict in the SFRY has generated substantial ICTY jurisprudence. At various times, the following main groups, entities or States have faced each other as belligerents on the territory of the SFRY: (a) the SFRY, which was succeeded on 27 April 1992 by the FRY and was engaged in armed conflict against one or more of the following: Slovenia, Croatia and Bosnia; (b) Croatia was engaged in armed conflict against the SFRY, the so-called Republic of Serbian Krajina (RSK), the FRY and Bosnia; (c) Bosnia was engaged in armed conflict against the SFRY, the FRY, the Republika Srpska (RS), Croatia, the HVO (the Bosnian-Croat entity) and the Bosnian Muslim faction controlled by Fikret Abdic; (d) Slovenia was engaged in armed conflict with the SFRY [66 ] ; after the escalation of the conflict in Koso vo, the following parties need to be added: (e) the FRY engaged in armed conflict against the KLA and NATO.
The starting point for determining the character of the conflict in the former Yugoslavia for the purposes of Article 2 of the ICTY Statute is the Tadic Jurisdiction Decision . The Appeals Chamber ruled that the conflicts in the former Yugoslavia had both internal and international aspects, and that the Security Council members who adopted the Statute were well aware of this [67 ] . In other words, the Appeals Chamber decided that there were potentially several distinct conflicts and refused to accept that all of these should automatically be regarded as a single armed conflict, wholly international in character.68 The Chamber went on to lay down a general framework for the classification of the armed conflicts in the former Yugoslavia,69 but left it to the various Trial Chambers to determine whether the international nature of the armed conflict was established in the cases where Article 2 charges were brought. [70 ]
On the basis of the above framework, several Trial Chambers subsequently determined the character of the conflict in the period relevant to the respective indictments [71 ] . On 15 July 1999, the Appeals Chamber pronounced its judgment on the appeal lodged by the accused Duöko Tadic and the cross-appeal lodged by the Prosecution against the Judgment of Trial Chamber II of 7 May 1997. The Appeals Chamber denied Duöko Tadic's appeal on all grounds. As for the cross-appeal by the Prosecution, the Appeals Chamber held, inter alia , that there was an international armed conflict and, in consequence, that the grave breaches regime of the 1949 Geneva Conventions applied. The Appeals Chamber set out a new test, the “overall control test”, for establishing the necessary link between an armed faction in a prima facie local conflict waged on the territory of a State and an outside armed force (belonging to a foreign nation) to justify the conclusion that a conflict is international. It also decided that the victims in that case were “protected persons” under the Fourth Geneva Convention.
The decision of the Appeals Chamber is remarkable in that it distances itself explicitly from the decision rendered by the ICJ in 1986 in the Nicaragua case: the ICTY Appeals Chamber holds that in matters of State responsibility, international law does not always require the same degree of control for the purpose of attribution of acts of individuals or groups to a particular State.72 After a thorough analysis of international case law and State practice, the Appeals Chamber concluded that the extent of the requisite State control varies, and that international law provides for three tests. The first one is that of specific instructions (or subsequent public approval), applying to single individuals or militarily unorganized groups. The second one is a test of overall control applying to armed groups, whilst the third is one of assimilation of individuals to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions). [73 ]
Furthermore, the Appeals Chamber made a powerful contribution to the cause of international humanitarian law by de-linking the concept of protected persons (in this case civilians) with nationality, stressing the need to look at substantial relations more than formal bonds. The Chamber took into account the fact that in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance. In its own words, “ethnicity may become determinative of na tional allegiance”. [74 ]
How this jurisprudence can be applied to the Kosovo conflict remains to be determined. In the first indictment relating to crimes committed in Kosovo, charges were brought under Article 5 of the ICTY Statute (crimes against humanity) and Article 3 of the Statute (violations of the laws or customs of war). Under both these articles the Prosecutor only needs to prove that there was a nexus with an armed conflict, but the question of the character of the armed conflict (international or non-international) is not relevant.
After the Tadic Appeal Judgment of 15 July 1999, there are two or three scenarios that can be envisaged to establish the existence of an international armed conflict in relation to the Kosovo crisis: (a) there was a classic inter-State armed conflict between two or more States; (b) there was an internal armed conflict alongside an international armed conflict; (c) there was a prima facie internal armed conflict, but one local faction was acting as an agent of another State which exerted “overall control” over this faction. There is little doubt that the conflict between NATO States and the FRY as a result of Operation Allied Force was international in character, either because it can be regarded as a “classic” conflict between several States or because NATO States intervened militarily by sending their troops to the territory of the FRY. In the view of the present author, the legal justification for the intervention put forward by NATO States75 -- which is in any case immaterial for the ICTY's mandate -- does not affect this characterization. However, whilst the conflict between the FRY and the NATO countries involved in Operation Allied Force was most probably international in nature, the question of the character of the confli ct between the KLA and the FRY remains.
On the assumption that the hostilities between the FRY and KLA reached the requisite level of intensity, prior to the NATO intervention in March 1999, this conflict was internal in character, unless one regards the KLA as a national liberation movement under Article 1(4) of Additional Protocol I and therefore as a force fighting against colonial domination, alien occupation or a racist regime. Protocol I does not define what movements are seeking self-determination and would qualify as “national liberation movements”; neither do the two instruments referred to in the provisions, i.e., the United Nations Charter and the Friendly Relations Declaration [76 ] . The possible status of the KLA as a national liberation movement would require an assessment of the causes for which the KLA purportedly fights, which belong to the realm of jus ad bellum . Such an assessment would also imply, vice versa , that the FRY government would need to be characterized either as an occupying force (alien or colonial) or a racist regime. It should be noted too that the categories enumerated under Article 1(4) of Protocol I, although they may be subject to some expansive interpretations, are limitative and do not, in principle, include a struggle for secession unless the secession is effective [77 ] . In the light of the foregoing, it remains unclear whether one could successfully argue before the ICTY that the KLA should be regarded as a national liberation movement under Article 1(4) of Additional ProtocolI.
If Article 1(4) of Protocol I does not apply, the question is whether the NATO intervention from March 1999 onwards transformed the character of the conflict between the FRY and KLA into an international armed conflict. In order for the FRY-KLA conflict to be international, it is necessary to establish a link between the KLA and NATO forces. On the assumption that the KLA is an organized military group, and on the basis of the Appeals Chamber decision in the Tadic case, it would have to be demonstrated that the KLA acted as an agent of the ten NATO countries involved in Operation Allied Force by being under the “overall control of the latter”. The overall control test, in the words of the ICTY's Appeals Chamber, requires proof of “control by a State over subordinate armed forces or militias or paramilitary units (…) of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training)”. This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the party to the conflict) has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.” [78 ]
Finally, it should be remembered that in judging the merits of the allegations of US involvement in Nicaragua, the ICJ resolved that both bodies of jus in bello applied, concurrently but separately, to the different parties in the conflict. In a well-known paragraph the World Court stated: “The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is'not of an international character'. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflict of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.” [79 ] This double characterization of the conflict for purposes of jus in bello certainly has undesirable consequences. For instance, whilst a NATO soldier captured during Operation Allied Force by the FRY forces will be entitled to prisoner-of-war status, a KLA combatant will not: the latter may be prosecuted for having taken up arms against his government.
Personal jurisdiction: nationality of the perpetrator
As an international criminal tribunal, the ICTY is competent only to prosecute individual offenders for serious violations of international law and to impose individual criminal sanctions. Its mandate extends only to “natural persons” and excludes the prosecution of groups, organizations, corporations or States. This is, to a certain extent, a departure from the Statutes of the International Military Tribunals of Nuremberg and Tokyo. Article 9 of the Nuremberg Charter enshrined a procedure under which the IMT could declare certain groups or organizations criminal. If such a declaration was issued, Article 10 allowed the competent national authorities of any signatory State to bring individuals to trial for membership of these groups or organi zations. In such cases the criminal nature of the group or organization was considered proven and no further proof was required. In execution of these provisions, the IMT declared the following organizations criminal: the Leadership Corps of the Nazi Party; the Gestapo; the SD (the State Security Service); and the SS [80 ] . A group of French jurists had suggested that a similar provision, with some safeguards, could be envisaged for the ICTY [81 ] . The suggestion was rejected by the United Nations Secretary-General [82 ] . The results are laid down in Article 6 of the ICTY Statute, which provides that the Tribunal has jurisdiction only over natural persons, and in Article 7, which addresses several aspects of the principle of individual criminal responsibility.
Similarly, the Statute does not allow for the prosecution of legal persons other than natural persons, such as corporate entities or States. Again, the latter question is still controversial under current international law [83 ] . However, it should not be overlooked that other fora or tribunals may be competent to examine the responsibility of States for violations of the laws of armed conflict. A good example are the cases which are currently pending before the ICJ: the Genocide Case brought in 1993 by Bosnia and Herzegovina against the FRY [84 ] , the Legality of the Use of Force Case , brought in 1999 by the FRY against ten NATO countries [85 ] , and also the case brought recently by Croatia against the FRY, charging the latter with violations of the Genocide Convention. [86 ]
An important element of the competence ratione personae (personal jurisdiction) of the ICTY, and of international criminal law in general, is the principle of individual criminal responsibility. Article 7 of the ICTY Statute addresses several aspects of this issue. The first subparagraph of this article indicates that all persons who participate in the planning, preparation or exec ution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible. The second subparagraph encompasses the principle that heads of State, government officials and persons acting in an official capacity should not be entitled to rely on the plea of immunity. This provision draws upon the precedents following the Second World War. The text of the article contains two further provisions. First, it affirms that a plea of head of State immunity or that an act was committed in the official capacity of the accused will not constitute a defence, and secondly, that it will not be a factor mitigating punishment.
Under the ICTY Statute, the nationality of the perpetrator is of no consequence. Any person who belongs to a party to the conflict, and commits any of the crimes enumerated or referred to in Articles 2 to 5 of the ICTY Statute, can be prosecuted before the Tribunal. Early on in NATO's Operation Allied Force , the Prosecutor acknowledged that she had received requests from persons and groups urging her to indict various NATO and other officials for war crimes in relation to the air strikes conducted in Serbia. She stated that there was no doubt in her mind that the jurisdiction of the Tribunal over Kosovo was “well known to all, and indeed has never been contested by anyone except the FRY”. She further reaffirmed that the Tribunal has jurisdiction over genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 and violations of the laws and customs of war which have been committed since 1991 or continue to be committed, anywhere in the former Yugoslavia, “by anyone”. Finally, she promised to review all information provided to her which may suggest the commission of crimes within the jurisdiction of the ICTY, but that she would disregard unsubstantiated conclusions and political diatribe [87 ] . The Prosecu tor has repeatedly confirmed these intentions publicly. In her introductory statement at the launch of the ICC Coalition's global ratification campaign, on 13 May 1999, she stated more specifically that on 24 March 1999, 19 European and north American countries had “said with their deeds what some of them were reluctant to say with words. They have voluntarily submitted themselves to the jurisdiction of a pre-existing International Tribunal, whose mandate applies to the theatre of their chosen military operations, whose reach is unqualified by nationality, whose investigations are triggered at the sole discretion of the Prosecutor and who has primacy over national courts”. [88 ]
Since taking office the ICTY's new Prosecutor has made several statements clarifying the activities and the priorities of her office in relation to Kosovo. She confirmed, inter alia , that apart from the five high-level individuals already indicted, the “Office of the Prosecutor of the ICTY may investigate and prosecute other individuals, on a case by case basis, who may have committed particularly serious crimes during the course of the armed conflict”. [89 ]
Finally, in her recent briefing to the Security Council, the ICTY's Chief Prosecutor rejected accusations that the Tribunal was carrying out investigations only in one direction. While admitting that no data had been issued yet, she confirmed that her office was dealing with cases where the perpetrators were Serbs, Muslims and from the KLA. [90 ]
The division of labour between the ICTY and national jurisdictions -- the role of UNMIK
Pursuant to Article 9(1) of the Statute, the ICTY and national tribunals have concurrent jurisdiction. However, Article 9(2) stipulates that the ICTY shall have primacy over national courts. Furthermore, since the I CTY was set up under Chapter VII of the UN Charter, all UN member States are required to cooperate with the Tribunal [91 ] . They are obligated to arrest suspects and surrender them to the Tribunal for trial. Moreover, States may not rely upon their internal law as a justification for failing to comply with their international obligations in this respect. Therefore, if the ICTY has made a request for assistance to a State, the latter is bound to comply, regardless of whether it has enacted the necessary legislation and regardless of whether its municipal laws, for example, authorize extradition or surrender of suspects in the subject matter at hand. [92 ]
Conversely, in establishing the ICTY it was not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts with respect to such acts. The Secretary-General believed that national courts should be encouraged to exercise their jurisdiction in accordance with their relevant national laws and procedures. Articles 9 and 10 of the Statute reflect this goal. As mentioned above, Article 9 stipulates that there is concurrent jurisdiction of the ICTY and national courts, subject to the primacy of the International Tribunal. At any stage of the procedure, the ICTY may formally request the national courts to defer a case to its competence.
Article 10 of the Statute reflects the principle of non bis in idem . This holds that a person shall not be tried twice for the same crime. Given the primacy of the ICTY, the principle of non bis in idem would preclude subsequent trial before a national court. However, Article 10 stipulates also that the principle of non bis in idem should not preclude a subsequent trial before the International Tribunal in the following two circumstances: (a) the characterization of the act by the national court did not correspond to its characterization u nder the Statute; or (b) conditions of impartiality, independence or effective means of adjudication were not guaranteed in the proceedings before the national courts. Should the International Tribunal decide to assume jurisdiction over a person who has already been convicted by a national court, it should take into consideration the extent to which any penalty imposed by the national court has already been served. [93 ]
When the Security Council adopted the Tribunal's mandate in 1993, it obviously could not predict the Kosovo crisis and the transitional solution devised in Resolution 1244 of 10 June 1999, in which the Security Council decided to allow the establishment of international civil and security presences in Kosovo under ChapterVII of the UN Charter. The resolution reaffirms “the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2”. However, this confirmation seems to be far outweighed by other considerations listed in the resolution, such as “the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo” and the determination that “the situation in the region continues to constitute a threat to international peace and security”. UNMIK, the UN-led “civilian presence”, has been given the monumental task of setting up a civilian administration, including a judicial system, in a part of the FRY.
On 12 July 1999, in his follow-up report to the Council, the Secretary-General presented a comprehensive framework of the UN-led international civil operation in Kosovo. The tasks of UNMIK envisaged by the UN are unprecedented and immense. Its principal role is to pave the way for a stable, democratic multi-ethnic and autonomous Kosovo. To this end, the Security Council has vested in the UN Mission authority over the territory and people of Kosovo, including all legislative and executive powers, as well as the administration of the judiciary. Among its key tasks, UNMIK has been assigned the responsibility to promote the establishment of substantial autonomy and self-government in Kosovo; perform basic civilian administrative functions; facilitate a political process to determine Kosovo's future status; support key infrastructure reconstruction and humanitarian and disaster relief; maintain civil law and order; promote human rights; and assure the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo. UNMIK will conduct its work in five integrated phases and is ultimately geared to the transfer of authority from Kosovo's provisional institutions to institutions established under a political settlement.
It is clear that the ICTY has neither the mandate, nor the resources, to function as the primary investigative and prosecutorial agency for all criminal acts committed on the territory of Kosovo. Under UNMIK's guidance, judges and court officers are now being established on a multi-ethnic basis in the territory. The ICTY Prosecutor has made clear that the investigation and prosecution of offences, which may fall outside the scope of the jurisdiction of the ICTY described above, would be properly the responsibility of UNMIK, assisted by KFOR [94 ] . However, even for crimes falling under its Statute, the ICTY would have concurrent jurisdiction with the judicial authorities in Kosovo. It would be up to the Tribunal to decide whether it wishes to exercise its jurisdiction over such crimes or whether it would encourage the local judiciary institutions to exercise their jurisdiction in accordance with their relevant national laws and procedures.
1. For a chronology of the conflict consult, for instance, L. Silber and A. Little, Yugoslavia: Death of a Nation , 2nd ed., Penguin Books, BBC, London, 1996; W. Zimmerman, Origins of a Catastrophe: Yugoslavia and its Destroyers -- America's Last Ambassador Tells What Happened and Why, Times Book, New York, 1996; C. Rogel, The Breakup of Yugoslavia and the War in Bosnia , Greenwood Press, Westport, Conn., 1998; M. Glenny, The Fall of Yugoslavia , revised ed., Penguin Books (USA), 1996, pp. 129-130.
2. See R. Rich, “Recognition of States: The collapse of Yugoslavia and the Soviet Union”, European Journal of International Law , Vol. 4, 1993, pp. 38-53; I. Janev, “Legal aspects of the use of the provisional name for Macedonia in the United Nations system”, American Journal of International Law , Vol. 93, 1999, pp. 155-160.
3. Macedonia, as will be explained below, sought to establish its independence from the SFRY as well.
4. However, as will be seen below, the legal status of this claim is still controversial.
5. Resolution 808 (1993) of 22 February 1993. -- The companion tribunal for Rwanda (the ICTR) was likewise established via the mechanism of a Security Council resolution as a measure taken under Chapter VII. However, the ICTR was set up when the armed conflict in Rwanda had largely ended, following the take-over of the country by the former rebels.
6. In the case of Dragan Nikolic , alleged commander of a camp at Susica, in north- eastern Bosnia and Herzegovina, set up within one month after the take-over by Serbian forces of the Bosnian city of Vlasenica, in April 1992; Press Release, Registry,
CC/PIO/022-E, 4 October 1995.
7. The marketplace bombing in Sarajevo occurred in February 1994; in May 1995, the Croatian army recaptured areas in Slavonia; in July 1995, the safe area of Srebenica was taken over by the Serbs; the following month, Croatia captured the Krajina area. Serious violations of international humanitarian law were committed in each of these and in other instances.
8. General Assembly, 54th session, Security Council, 54th year, Report 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 , A/54/187, S/1999/846, 25 August 1999, p. 9, para. 2.
9. ICTY Fact Sheet, 17/11/99, PIS/FS-55.
10. Since 1997, the ICTY Prosecutor has pursued a strategy aimed at high-level offenders and at issuing indictments under seal. The first time the use of sealed indictments came to light was in the cases of Slavko Dokmanovic, arrested on 27 June 1997, and Milan Kovacevic , arrested on 10 July 1997. See P.Tavernier, “The experience of the International Criminal Tribunals for the former Yugoslavia and for Rwanda”, IRRC , No. 321, November-December 1997, p. 616.
11. W. Fenrick, “The development of the law of armed conflict through the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia”, Journal of Armed Conflict Law , Vol. 3, 1998, p. 198.
12. Press Release, Office of the Prosecutor, 10 March 1998, CC/PIO/302-E.
13. The Prosecutor against Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojiljkovic , Case No. IT-99-37-I, Indictment of 22 May 1999, para. 25.
14. General Assembly, 53rd session, Security Council, 53rd year, Report 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 , A/53/219, S/1998/737, 10 August 1998, p. 31, para. 118.
15. Press Release, Office of the Prosecutor, 7 October 1998, CC/PIU/351-E.
16. Press Release, Office of the Prosecutor, 15 October 1998, CC/PIU/353-E.
17. Press Release, President, 5 November 1998, JL/PIU/359-E; letter by ICTY President McDonald to the Security Council, 6 November 1998.
18. Loc. cit. (note 13), paras 27-28.
19. Press Release, Office of the Prosecutor, 20 January 1999, CC/PIU/379-E.
20. Loc. cit. (note 13), paras 23-37.
21. Press Release, Office of the Prosecutor, 26 March 1999, JL/PIU/389-E.
22. Loc. cit. (note 13).
23 . Ibid .
24. Warrants of Arrest and Orders for Surrender against all the accused, Case No. IT-37-I, of 24 May 1999.
25. Pursuant to Sub-Rule 55 (D) of the Rules and Procedures of Evidence of the ICTY.
26. Ibid .
27. NATO claimed that by the end of May 1999, over 230,000 refugees had arrived in the Former Yugoslav Republic of Macedonia, over 430,000 in Albania and some 64,000 in Montenegro. In addition, approximately 21,500 had reached Bosnia and over 61,000 had been evacuated to other countries. Within Kosovo itself, an estimated 580,000 people had been rendered homeless. Furthermore, NATO estimated that by the end of May, 1.5 million people, i.e. 90% of the population of Kosovo, had been expelled from their homes, that some 225,000 Kosovar men were believed to be missing, and that at least 5,000 Kosovars had been executed. Some of these figures are controversial. The ICTY has, as will be seen below, received reports of around 11,000 deaths.
28. Press Release, The Hague, 27 May 1999, JJL/PIU/403-E.
29. Source: NATO website.
30. Human Rights Watch, Federal Republic of Yugoslavia, Abuses against Serbs and Roma in the New Kosovo , August 1999, Vol. 11, No. 10 (D).
31. Press Release, SC/6749, 10 November 1999, 4063rd Meeting of the Security Council.
32. For good documentary sources consult S. Trifunovska (ed.), Yugoslavia Through Documents. From its Creation to its Dissolution, Martinus Nijhoff Publishers , The Hague, 1994; D. Bethlehem M. Weller, The Yugoslav Crisis in International Law: General Issues , Part I, Vol. 5, Cambridge International Documents Series, Grotius/Cambridge University Press, 1997.
33. See Report of the Secretary-General, pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, S/25704, paras 4-11.
34. Ibid ., paras 18-30.
35. See for instance, A. Pellet, “Le Tribunal criminel international pour l'ex-Yougoslavie”, Revue Générale de Droit International Public, Vol. 98, 1994, pp. 12-32; E. David, “Les tribunaux pénaux internationaux”, Lecture Notes, San Remo, 28 May 1998 (on file with author), paras 12.16-12.25; Ch. Greenwood, “The development of international humanitarian law”, Max Planck Yearbook of United Nations Law , Vol. 2, 1998, pp. 99-109; S. Murphy, “Progress and jurisprudence of the International Criminal Tribunal for the former Yugoslavia”, American Journal of International Law , Vol. 93, 1999, pp. 63-64.
36. Prosecutor v. Tadic , Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, (“Tadic Jurisdiction Decision”), pp. 5-24.
37. Ibid ., paras 28-40.
38. A Croat indictee, whose surrender the Tribunal has sought for years, has recently turned to the European Court of Human Rights in the hope of stalling or preventing his surrender by Croatia to the Hague Tribunal. In his individual petition to the ECHR he challenges, inter alia, the legitimacy of the ICTY's establishment as an ad hoc tribunal under Chapter VII of the UN Charter and its independence from the UN Security Council. He also alleges that its jurisdiction entails unjustified primacy over a national jurisdiction: Application No. 51891/99 of 2 November 1999, Mladen Naletilic v. Republic of Croatia, European Court of Human Rights, Strasbourg. The applicant is indicted by the ICTY together with Vinko Martinovic for his alleged involvement in the ethnic cleansing of the Mostar Municipality: Press Release, Registry, 22 December 1998, CC/PIU/377-E.
39. UN Security Council Resolution 1160, 31 March 1998, para. 17.
40. Press Release, President, 5 November 1998, JL/PIU/359-E, and lett er by President McDonald to the Security Council, 6 November 1998.
41. The author is of the view that serious violations of human rights and humanitarian law can no longer be regarded as falling exclusively within the sovereignty of States.
42. Greenwood, op. cit. (note 35), pp. 106/7.
43. Rich, op. cit. (note 2), p. 53. See also S. Rosenne, “Automatic treaty succession”, in J. Klabbers and R. Lefeber, Essays on the Law of Treaties , Martinus Nijhoff Publishers, The Hague, 1998, pp. 97-106; M. Craven, “The Genocide Case, The law of treaties and State succession”, British Yearbook of International Law , Vol. 68, pp. 127-164.
44. As noted by the International Court of Justice, in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia- Herzegovina v. FRY) , General List No. 91, Decision on Preliminary Objections, 11 July 1999, para. 17.
45. Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom all based themselves on resolutions of the General Assembly and the UN Security Council in arguing that the Federal Republic of Yugoslavia is not a member State of the United Nations or a party to the ICJ Statute as a successor State to the former Socialist Federal Republic of Yugoslavia, and that Yugoslavia cannot, therefore, rely on the Court's Statute in establishing jurisdiction in these cases. Legality of Use of Force , I.C.J. General List No. 99/25, Request for Provisional Measures, decision of 2June 1999.
46. Ibid . In the Genocide Case the ICJ also decided that it was not necessary to decide the question of the status of the FRY within the United Nations, loc. cit. (note 44).
47. For the practice of the UN Human Rights Committee in regard to the ICCPR see M. Kamminga, “State succession in respect of human rights treaties”, European Journal of International Law , Vol. 7, pp. 469-484.
48. Article 1 of the ICTY Statute reads as follows: “The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.” This is clarified in Article 8 as follows: “The territorial jurisdiction of the International Tribunal shall extend to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters. The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991.”
49 The Report of the Secretary-General on the establishment of the Tribunal shows that the date of 1January 1991 was deliberately chosen so as not to prejudge the characterization of the conflict and in order to cover the widest possible range of violations of international humanitarian law. S/25704, para. 16, p. 17. See also Pellet, op. cit. (note 35), para. 23, pp. 32/33.
50. Greenwood, op. cit. (note 35), p. 106. In fact, some feared that the Security Council would decide that the ICTY's task would come to an end with the conclusion of the Dayton/Paris agreements in December 1995. Tavernier, op. cit. (note 10), pp. 653/4.
51. Press Release, Office of the Prosecutor, 22 December 1999, PR/P.I.S./457-E.
52. Tadic Jurisdiction Decision , p. 37, para. 70.
53. The FRY views Kosovo as an internal problem and believes it has the sovereign right to use armed force to fight “terrorism” and prevent secession of a part of its territory. Statement to the Security Council, 24 March 1999, Press Release SC/6657. -- Hundreds of ethnic Albanians arrested in Kosovo in the spring of 1999 are now being tried in Serbia, mostly on charges of terrorism: “Kosovo mob kills elderly Serb and beats 2 others”, International Herald Tribune , 30 November 1999.
54. Communication by the ICTY Prosecutor to the Contact Group (established by Dayton) on 7 July 1998.
55. Tadic Jurisdiction Decision, para. 70, p. 37.
56. Tadic Jurisdiction Decision, paras 67-70, pp. 36-37.
57. See Y. Sandoz/C. Swinarski/B. Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 , ICRC/Martinus Nijhoff Publishers, Geneva, 1987, paras 157/8, which mentions (para. 148) that the article was accepted by consensus in the preparatory committee and at the plenary conference.
58. These are estimates cited in the appeal launched on 6 August 1999 by six human rights groups - four from Kosovo and two international. Source: Human Rights Watch website.
59. Human Rights Watch, 8 November 1999.
60. Loc. cit. (note 53).
61. Statement by Admiral Guido Venturoni, Chairman of the NATO Military Committee, to AFP, 10 Novem ber 1999.
62. “As Seen, As Told”, 2nd part, 6 December 1999, Report by OSCE, Mission in Kosovo/Office for Democratic Institutions and Human Rights.
63. Art. 5 of the ICTY Statute is drafted in a manner which is in some respects more restrictive than customary international law, but which also omits reference to some of the previous requirements for acts to constitute crimes against humanity under general international law. As noted in the Tadic Opinion and Judgment, the inclusion of the condition that crimes against humanity be committed “in armed conflict” is no longer required by customary international law. Tadic Opinion and Judgment, 7 May 1997, pp. 236-237, para. 627.
64. Press Release, Office of the Prosecutor, 24 July 1999, PR/P.I.S./422-E.
65. Tadic Jurisdiction Decision , pp. 44-48, paras 79-84; Prosecutor v. Tadic , Judgment, Case No.IT-94-1-AR72, App. Ch., 15 July 1999, p. 33, para. 80 ( Tadic Appeal Decision ).
66. Fenrick, op. cit. (note 11), p. 220.
67. Tadic Jurisdiction Decision , pp. 39-43, paras 72-77.
68. Ibid ., p. 39, para. 72.
69. Ibid ., pp. 39-43, paras 72-77.
70. Ibid ., p. 39, para. 72.
71. For a detailed discussion of this jurisprudence, see W. Fenrick, “The application of the Geneva Conventions by the International Criminal Tribunal for the former Yugoslavia”, IRRC , No. 834, June 1999, pp. 317-329.
72. Tadic Appeal Decision , pp. 50-51, para. 123.
73. Tadic Appeal Decision , p. 60, para. 141; p. 69, para. 156.
74. Tadic Appeal Decision , pp. 72-74, paras 164-169.
75. Declaration on principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations, UNGA Resolution 2625 (XXV).
77. For a doctrinal and prospective analysis of the hypothesis of secession under Additional Protocol I see E. David, Principes de droit des conflits armés , 2nd ed., Bruylant, Brussels, 1999, pp. 162-171.
78. Tadic Appeal Decision , pp. 58-59, para. 137.
79. Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States ), Merits, I.C.J. Reports 1986, p. 104, para. 219.
80. Judgment of the International Military Tribunal, Nuremberg, 1 October 1946. For a discussion of subsequent national trials
see Law Reports of Trials of War Criminals , Vol. XV, UN War Crimes Commission, 1949, pp. 150-154.
81. Pellet, op. cit. (note 35), pp. 39-40.
82. Report of the Secretary-General, op. cit. (note 33), para. 51; Pellet, op. cit. (note 35), pp. 39-40.
83. M. Casillo, “La compétence du Tribunal pénal pour la Yougoslavie”, XCVIII Revue Générale de Droit International Public , Vol. 98, 1994, pp. 77-80.
84. Loc. cit. (note 44).
85. Loc. cit. (note 45).
86. “Croatia institutes proceedings against Yugoslavia for violations of the Genocide Convention”, I.C.J. Press Communiqué 99/38 of 2 July 1999, and I.C.J. General List No. 118.
87. Press Release, Office of the Prosecutor, 31 March 1999, CC/PIU/391-E.
88. Press Release, Office of the Prosecutor, 13 May 1999, CC/PIU/401-E.
89. Press Release, Office of the Prosecutor, 29 September 1999, PR/P.I.S./437-E.
90. Press Release, SC/6749, 10 November 1999, 4063rd Meeting of the Security Council.
91. This follows from Articles 25 and 103 of the UN Charter, and several Security Council resolutions on the matter. See Resolution 827, para. 4.
92. Greenwood, op. cit. (note 35), pp. 106/7.
93. Secretary-General's Report, op. cit. (note 33), paras 64-68.
94. Office of the Prosecutor, Press Release, 29 September 1999, PR/P.I.S./437-E.
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