An International Tribunal for the Former Yugoslavia; An Act of Powerlessness or a New Challenge for the International Community?
| Author | Herman von Hebel |
| Date | 01 December 1993 |
| Published date | 01 December 1993 |
| DOI | 10.1177/016934419301100404 |
| Subject Matter | Part A: Article |
An International Tribunal for the Former Yugoslavia;
An Act
of
Powerlessness
or
a new Challenge for the International
Community?
Herman von Hebel *
Abstract
The decision of the Security Council of the United Nationsto establish an ad hoc tribunal
for the prosecution of persons responsible for violations of humanitarian norms in the
former Yugoslavia forms the basis for this article. The author starts by putting this
decision in a historic perspective and elaborates subsequently on several legal issues
involved. These issues inter alia concern the legal foundation on the Statute of the
Tribunal and the competence of the Tribunal ratione materiae. Furthermore, some
information is provided about the organisation of the Tribunal and the procedures to be
followed. The author finally enters into some preliminary observations on the prospects
of this Tribunal.
1Introduction
The declarations of independence, issued by Sloveniaand Croatia on 25 June 1991 formed
a starting point not only for the dissolution of the Socialist Federal Republic of
Yugoslavia, but also for the biggest crisis in post-war Europe, both in terms ofpeace and
security and in terms of violations of human rights and humanitarian rules. The global and
regional norms relating to humanitarian law and basic humanrights, established since the
Second World War, madeus believe that large-scale violations of humanrights would not
easily happen again, at least not on the European continent. And
if
such violations should
incidentally take place, adequate instruments would be available to monitor and redress
these violations and to prevent further violations. The Yugoslav crisis has ruined this
belief to a considerable extent. Newspapers and television have provided the international
community with abundant information on flagrant violations of human rights and
humanitarian norms. On the legal level, the human rights instruments appear to be
ineffective, on the political1evel, the international community, including the European
Political Cooperation, has so far not been able to react adequately to this situation. The
Security Council of the United Nations, while invoking chapter vn of the UN Charter,
could do no more than exert some 'damage-control' with respect to peace and security
in the region. A demonstrator during the London peace talks in the summer of 1992
adequately described the powerlessness of the international community with the text on
his banner: 'Very good, mr. Major, threaten them with another conference!'
This article elaborates one specific aspect of the Yugoslav crisis, namely the decision
of the Security Council of 19 February 1993 to establish an ad hoc tribunal (hereinafter,
in conformity with the Statute adopted by the Security Council, referred to as:
International Tribunal) to
try
and punish individuals who committed serious war crimes
and crimes against humanity in the former Yugoslavia. The Statute of the International
Tribunal has been adopted by the Security Council on 25 May 1993. This article places
*Herman von Hebel is assistant legal adviser at the Ministry of Foreign Affairs of the Netherlands. This
article reflects his personal opinion. The text has been finalized at the beginning of June 1993.
437
NQHR
4/1993
the establishment of
the
International Tribunal in a short historical perspective (paragraph
2) and describes the
major
legal aspects
of
this International Tribunal (paragraph 3).
Paragraph 4contains
some
final remarks on the issue.
2
Historical
background
2.1 After the First World War
The
possibility and desirability of according jurisdiction over certain offenses to an
international court was studied seriously for the first time in relation to the war crimes
committed during the
First
World War. A 'Commission on the Responsibility of the
Authors
of
the
War
and
on Enforcement
of
Penalties' proposed to establish a high
tribunal, which should apply 'the principles
of
the law of nations as they result from the
usages established
among
civilized peoples, from the laws of humanity and from the
dictates
of
public conscience'. This Tribunal should be competent to deal with persons
who violated or
ordered
to violate the aforementioned rules against civilians and soldiers
of
several Allied nations and to deal with
'authorities, civil or military, belonging to enemy countries, however high their position may have been,
without distinction of rank, including the Heads of States, who ordered, or, with knowledge thereof and
with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or
repressing, violations
of
the laws and customs of war'. I
Several members of this Commission, however, strongly opposed this recommendation,
inter alia because of
the
alleged ex post facto character of the tribunal, the vague contents
of
the 'laws of humanity' and the responsibility of Heads
of
States to other sovereignties.
The
Treaty of Versailles
of
1919 finally, as a compromise, only contained the following
provision:
'The Allied and Associated Powers publicly arraign William II
of
Hohenzollem, formerly German
Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal
will be constituted to
try
the accused, ...
,2
The
treaty moreover contained provisions, according to which Germany had to hand over
to the Allied and Associated Powers persons accused of having committed acts in violation
of
the laws and customs of war. These persons were to be judged by national military
tribunals of the state
in
which the acts were committed or by special military tribunals
composed of members
of
different tribunals,
if
the acts were committed
in
more than one
country.'
2.2
The
League
of
Nations
Article 14 of the Covenant
of
the League
of
Nations provided for the establishment of the
Permanent Court
of
International Justice. In
February
1920, the Council of the League
oj
Nations
appointed an Advisory Committee
of
Jurists in order to prepare the
establishment of the
Permanent
Court. In addition
to
this task, the Advisory Committee
discussed the establishment
of
an international criminal court and adopted aresolution for
further consideration by the Council and Assembly
of
the League
of
Nations. This
resolution suggested the creation of a High
Court
of
International Justice 'competent to
1 See: Historical survey
of
the question
of
International Criminal Jurisdiaion,
A/CN.4I7/Rev
.1, appendices,
pages 49-50.
2 Idem, Annex 3: Treaty
of
Versailles, Article 227, p. 60.
3 Idem, Articles 228 and 229.
438
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