International Criminal Law lecture handout, 2022-2023

Ad hoc and internationalised criminal tribunals

Dr Alexander Orakhelashvili

Ad hoc tribunals: ICTY and ICTR

Circumstances leading to the establishment of ad hoc tribunals:

Former Yugoslavia tribunal, ICTY – conflict in former Yugoslavia, disintegration of
the federal State of SFRY; internal and international armed conflicts
Rwanda Tribunal, ICTR – Hutu and Tutsi internal armed conflict

Establishment of tribunals by Un Security Council:

Primary responsibility of the UN Security Council to deal with the matters of
international peace and security; Chapter VII UN Charter, Articles 39, 41, 42

Security Council resolutions (database here, year by year, for information)

Security Council resolution 771 (1993)
After that the Security Council proceeded to gather evidence as to the Commission of
war crimes and authorised the Secretary-General to establish the expert commission
to investigate these issues: resolution 780.
By resolution 808 and 820(1993) the Council decided that the tribunal shall be
established and the Secretary-general shall submit a report; SG specified in its report
that the treaty route although normal, would have been complicated and require a
lengthy process of ratification, while the SC route would be faster and more efficient
in addressing the pertinent situation
Resolution 827 (1993) established the Tribunal: criminal accountability as a means of
maintaining peace and security; interdependence of peace and justice

Rwanda Tribunal, SC res 955 (1994), includes the text of the Statute

The status of the two tribunals:

Subsidiary organs of the UN; distinction between principal and subsidiary organs; see
also SG report, para 28, S/27504, 1993
Effect of Awards Advisory Opinion 1954: UNAT and UN General Assembly

SG Report para 29: legislation v customary law on criminalisation

The legality of the ICTY establishment has been challenged as soon as these tribunals
began their work.
Tadic Trial Chamber judgment on defence motion on jurisdiction: ruling against
judicial review of the Security Council’s decisions
ICTY reasoning on its establishment: Tadic appeal chamber judgment, 2 October
1995, dealing with constitutional issues:

 The concept of jurisdiction and the power of courts to determine their own
jurisdiction

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  The nature of subsidiary organs: the allegation that is a subsidiary,
subordinate, or secondary organ
 Review by the Tribunal of the legality of its own establishment: Security
Council’s discretion UNDER Chapter VII, political questions doctrine;
 Discretion under Article 39 UNC; the Tribunal as Article 41 UNC measure

Interpretation of the UN Charter in Tadic: the use of the 1969 Vienna Convention
rules, Articles 31 to 33:

 Plain meaning
 Context
 Object and purpose: principle of effectiveness
 Subsequent practice: relationship between General Assembly and Security
Council
 Preparatory work

ICTY and interpretation of UN Security Council resolutions:

The nature of SC resolutions: interpretation in accordance with 1969 Vienna
Convention rules, same as with treaties
Legal framework and practice discussed here, pp. 39-45 in Chapter 2

Interpretation of Security Council resolutions and applicable law in the ICTY: Tadic
and Blaskic cases: Tadic, IT-94-1, Appeal Chamber, Judgment of 15 July 1999, paras
287, 298-300; Tadic, Appeal Chamber, 2 October 1995, paras 87-88; Blaskic,
Judgment on the Request of the Republic of Croatia for Review of the Decision of
Trial Chamber II of 18 July 1997, Appeal Chamber, 29 October 1997, para. 64

All Security Council resolutions have been interpreted in accordance with VCLT
rules. There is no other framework of interpretation applicable to SCRs specifically.

Jurisdiction of Tribunals: concurrence and primacy

Article 10 of the Statute, possibility of trying individuals after national courts tried
them:
“1. No person shall be tried before a national court for acts constituting serious
violations of international humanitarian law under the present Statute, for which he or
she has already been tried by the International Tribunal. 2. A person who has been
tried by a national court for acts constituting serious violations of international
humanitarian law may be subsequently tried by the International Tribunal only if: (a)
the act for which he or she was tried was characterized as an ordinary crime; or (b) the
national court proceedings were not impartial or independent, were designed to shield
the accused from international criminal responsibility, or the case was not diligently
prosecuted. 3. In considering the penalty to be imposed on a person convicted of a
crime under the present Statute, the International Tribunal shall take into account the
extent to which any penalty imposed by a national court on the same person for the
same act has already been served.”

Article 29: duty to cooperate; essentially deriving from Article 25 UNC

Article 29 requires the following: “1. States shall co-operate with the International
Tribunal in the investigation and prosecution of persons accused of committing

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serious violations of international humanitarian law. 2. States shall comply without
undue delay with any request for assistance or an order issued by a Trial Chamber,
including, but not limited to: (a) the identification and location of persons; (b) the
taking of testimony and the production of evidence; (c) the service of documents; (d)
the arrest or detention of persons; (e) the surrender or the transfer of the accused to the
International Tribunal.”

Blaskic Trial Chamber judgment here; para 69: “binding orders may be issued by the
International Tribunal addressed to both States and individuals and there is, therefore,
no reason why a person exercising State functions, who has been identified as the
relevant person for the purposes of the documents required, should not similarly be
under an obligation to comply with a specific order of which he or she is the
subject110. States must always act through their officials and thus the authority to
issue binding orders to States by necessary implication carries the authority to issue
such orders to their officials111. The International Tribunal must have powers that are
both practical and effective and, as a criminal institution, this dictates that it seek the
most direct route to any evidence which may have a bearing on the finding of guilt or
innocence of the accused.”
Specific issues:
 Duty of States and individuals to comply
 National security concerns

Blaskic Appeal chamber judgment here; and summary of it here

Para. 33: “The Security Council established the International Tribunal pursuant to
Chapter VII of the United Nations Charter for the purpose of the prosecution of
persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia. A logical corollary of this is that
any time a State fails to fulfil its obligation under Article 29, thereby preventing the
International Tribunal from discharging the mission entrusted to it by the Security
Council, the International Tribunal is entitled to report this non-observance to the
Security Council.”

Para 38: “The Appeals Chamber dismisses the possibility of the International Tribunal
addressing subpoenas to State officials acting in their official capacity. Such officials
are mere instruments of a State and their official action can only be attributed to the
State. They cannot be the subject of sanctions or penalties for conduct that is not
private but undertaken on behalf of a State. In other words, State officials cannot
suffer the consequences of wrongful acts which are not attributable to them personally
but to the State on whose behalf they act: they enjoy so-called "functional
immunity".”
Para. 46: it is different with people in private capacity.
Specific issues:
 Sanctions for non-compliance: States complaining; UNSC addressing the
matter under Chapter VII UNC
 National security concerns

ICTY residual mechanism, SCR 1966(2010), containing the Statute

Completion strategy

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ICTY’s legacy: refusal to investigate NATO attacks on Yugoslavia. In its report,
ICTY specified that in para. 90 that
“when the OTP requested NATO to answer specific questions about specific
incidents, the NATO reply was couched in general terms and failed to address the
specific incidents. The committee has not spoken to those involved in directing or
carrying out the bombing campaign. The committee has also assigned substantial
weight to the factual assertions made by Human Rights Watch as its investigators did
spend a limited amount of time on the ground in the FRY. Further, the committee has
noted that Human Rights Watch found the two volume compilation of the FRY
Ministry of Foreign Affairs entitled NATO Crimes in Yugoslavia generally reliable
and the committee has tended to rely on the casualty figures for specific incidents in
this compilation. If one accepts the figures in this compilation of approximately 495
civilians killed and 820 civilians wounded in documented instances, there is simply
no evidence of the necessary crime base for charges of genocide or crimes against
humanity. Further, in the particular incidents reviewed by the committee with
particular care (see paras. 9, and 48-76) the committee has not assessed any particular
incidents as justifying the commencement of an investigation by the OTP. NATO has
admitted that mistakes did occur during the bombing campaign; errors of judgment
may also have occurred. Selection of certain objectives for attack may be subject to
legal debate. On the basis of the information reviewed, however, the committee is of
the opinion that neither an in-depth investigation related to the bombing campaign as
a whole nor investigations related to specific incidents are justified. In all cases, either
the law is not sufficiently clear or investigations are unlikely to result in the
acquisition of sufficient evidence to substantiate charges against high level accused or
against lower accused for particularly heinous offences.”

This has evoked concerns raised with regard to Nuremberg and Tokyo tribunals as to
whether international criminal justice is victor’s justice.

Internationalised tribunals: SCSL and STL

Origin and establishment:

ECCC – Khmer Rouge trials in Cambodia
SCSL – war in Sierra Leone; SC resolution 1315 (2000)
STL – assassination of Prime Minister Rafik Harriri in Lebanon

ECCC

Involvement of General Assembly of the UN and ASEAN

1997 Correspondence between UN and Cambodia: “Cambodia does not have the
resources or expertise to conduct this very important procedure. Thus, we believe it is
necessary to ask for the assistance of the United Nations. We are aware of similar
efforts to respond to the genocide and crimes against humanity in Rwanda and the
former Yugoslavia, and ask that similar assistance be given to Cambodia.”

ASEAN 2002 declaration: “support the continued efforts of the Royal Government of
Cambodia to bring the senior leaders of Democratic Kampuchea and those who were
most responsible for the crimes and serious violations of Cambodian penal law,
international humanitarian law and custom, and international conventions recognised

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by the Kingdom of Cambodia to trial in accordance with international standards of
justice, fairness and due process of law. We recognised, in this connection, the need
of the Royal Government of Cambodia and the United Nations to cooperate together
and appeal to the international community, to provide assistance in this regard.”

Ga Res 57/228 welcomed the ASEAN communiqué, and then specified that:

“Desiring that the international community continue to respond positively in assisting

efforts to investigate the tragic history of Cambodia, including responsibility for past
international crimes such as acts of genocide and crimes against humanity committed
during the regime of Democratic Kampuchea,
1. Requests the Secretary-General to resume negotiations, without delay, to conclude
an agreement with the Government of Cambodia, based on previous negotiations on
the establishment of the Extraordinary Chambers consistent with the provisions of the
present resolution, so that the Extraordinary Chambers may begin to function
promptly;
2. Recommends that the Extraordinary Chambers should have subject-matter
jurisdiction consistent with that set forth in the Law on the Establishment of the
Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes
Committed during the Period of Democratic Kampuchea;”

Agreement between Cambodia and UN, detailing the structure and jurisdiction of the
court, Articles 3 and 4

Jurisdiction ratione temporis: 16 April 1975 to 6 January 1979

Relevance of amnesties, Article 11 UN-Cambodia Agreement

SCSL

Use of Chapter VII by the UN Security Council, SCR 1315(2000)

Statute of the SCSL determines the Court’s jurisdiction, Articles 2 to 5

Jurisdiction ratione personae:
 age of defendants
 persons “most responsible” (different from Nuremberg and Tokyo, referring to
major war criminals; and ICTY/ICTR, simply to persons responsible); SG
report: “While those “most responsible” obviously include the political or
military leadership, others in command authority down the chain of command
may also be regarded “most responsible” judging by the severity of the crime
or its massive scale. “Most responsible”, therefore, denotes both a leadership
or authority position of the accused, and a sense of the gravity, seriousness or
massive scale of the crime. It must be seen, however, not as a test criterion or
a distinct jurisdictional threshold, but as a guidance to the Prosecutor in the
adoption of a prosecution strategy and in making decisions to prosecute in
individual cases.”

Jurisdiction ratione temporis: three options initially considered and one chosen

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Structure of SCSL, no sharing appeals chamber with ICTY and ICTR; SG report has
pointed out that “the sharing of a single Appeals Chamber between jurisdictions as
diverse as the two International Tribunals and the Special Court for Sierra Leone is
legally unsound and practically not feasible, without incurring unacceptably high
administrative and financial costs.”

Challenge of the legality of establishment in Prosecutor v Kallon and Kamara,

Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, SCSL-2004-15 AR
72(E) and SCSL-2004-16-AR72(E) 13 March 2004

SCSL as sui generis organ of the UN:

Prosecutor v Fofana, Decision on Preliminary Motion on Lack of Jurisdiction
Materiae: Illegal Delegation of Powers by the United Nations, SCSL-2004-14-AR72,
25 May 2004

Primacy over national courts

Amnesty, Lome Accord and SCR 1315; Kallon case:

“the amnesty granted by Sierra Leone cannot cover crimes under international law
that are the subject of universal jurisdiction. In the first place, it stands to reason that a
state cannot sweep such crimes into oblivion and forgetfulness which other states
have jurisdiction to prosecute by reason of the fact that the obligation to protect
human dignity is a peremptory norm and has assumed the nature of obligation erga
omnes.”
This pronouncement adopts the same approach as ICTY did in Furundzija in 1997.

 Taylor decision on immunity, 31 May 2004:

official position of the defendant
 High-level officials’ immunity under general international law
 The relevance of UN Security Council’s involvement

STL

SCR 1757(2007), containing the Agreement between Lebanon and the UN, and the
Tribunal’s Statute

STL composition: Article 2 Lebanon-UN agreement

Article 3 STL Statute: applicable law
Article 4: relationship to national courts and concurrent jurisdiction

Interlocutory Decision on the Applicable Law:

 Interpretation of the Statute

 Principles governing interpretation of Security Council resolutions, confirming
the relevance of the VCLT interpretative framework
 Applicable law and the crime of terrorism

The Prosecutor v Salim Jamil Auyyash et al., STL Appeals Chamber,

STL-11-01/PT/AC/AR90.1, 24 October 2012: judgment v dissent: deference to the
Security Council and scope of the judicial review

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Reading

Cryer et al., Chapters 7 and 9 and all materials hyperlinked above required to be ready
for discussion at the seminar, especially the following cases:
ICTY Tadic appeal chamber 2 October 1995, paras 1 to 64;
SCSL decisions on Kallon and Fofana
Taylor decision on immunity, 31 May 2004
Both Blaskic decisions
STL Ayash decision and dissent