The full text of the United Nation's paper in which the UN General-Secretary sets out his reasons for believing the ICTY was set up on a proper legal basis is
reproduced below.
As you will see, Boutros Boutros-Ghali was originally inno doubt that there were only two ways in which an
international criminal tribunal could be created by the UN under its Charter - by a decision of the General
Assembly or by the creation of an international Treaty.
He apparently changed his view, in the light of the
claimed humanitarian emergency in Yugoslavia, on the
basis of emergency powers given to the Security Council in Chapter VII of the UN Charter.
There are two problems with this: (i) these powers
relate exclusively to international conflict, whereas
all the conflicts in Yugoslavia were civil wars that
began before the international community forced through the illegal creation and recognition of Slovenia,
Croatia and Bosnia as independent sovereign states. TheUN has no mandate to involve itself in the internal
affairs of a sovereign country; (ii) the only precedentthe General-Secretary could offer in support of the use of these powers was the invasion of Kuwait by Iraq in 1990. This was of course an international conflict.
The UN has attempted to argue that the unilateral
declarations of independence by Slovenia, Croatia,
Bosnia and Kosovo had turned the various Yugoslav
conflicts into international conflicts, particularly
when they had been recognised as new states by other
countries. This is nonsense. None of these aspiring
states met the essential conditions laid down for the
recognition of new countries in the Helsinki Final Acts,the treaty of Montevideo and other international
legislation. And there had been no'invasions' by Serb
forces. The fighting was between Yugoslavs. The UN wasin flagrant breach of its own Charter and international law.
A further point is that the powers in Chapter VII only
apply when there is a threat to international peace and
security. Although the UN has sometimes suggested that
there was, it's quite clear that there wasn't.
We now know that the claims of humanitarian catastrophe
were highly exaggerated. Suggestions that 250,000
Bosnian Muslims had been killed in the first 6 months offighting have reduced to 100,000 on all sides during theentire Bosnian war. US claims that 500,000 might have died in Kosovo reduced to a figure just under 4,000.
Boutros-Ghali rationalised that his Chapter VII solution "would have the advantage of being expeditious" - it
certainly wasn't legal. S/25704 3 May 1993
ORIGINAL: ENGLISH
REPORT OF THE SECRETARY-GENERAL PURSUANT TO PARAGRAPH 2
OF SECURITY COUNCIL RESOLUTION 808 (1993)
CONTENTS
Introduction ...............................................
I. THE LEGAL BASIS FOR THE ESTABLISHMENT OF THE
INTERNATIONAL TRIBUNAL ...............................
II. COMPETENCE OF THE INTERNATIONAL TRIBUNAL ............. A. Competence ratione materiae (subject-matter
jurisdiction) .................................... B. Competence ratione personae (personal jurisdiction)
and individual criminal responsibility ........... C. Competence ratione loci (territorial jurisdiction)
and ratione temporis (temporal jurisdiction) ..... D. Concurrent jurisdiction and the principle of
non-bis-in-idem ..................................
III. THE
A. The Chambers .....................................
ORGANIZATION OF THE INTERNATIONAL TRIBUNAL .......
1. 2. 3. 4.
Composition of the Chambers .................. Qualifications and election of judges ........ Officers and members of the Chambers ......... Rules of procedure and evidence ..............
S/25704
English
Page 2
B. The Prosecutor ...................................
C. The Registry .....................................
-
IV. INVESTIGATION AND PRE-TRIAL PROCEEDINGS .............
-
V. TRIAL AND POST-TRIAL PROCEEDINGS .................... A. Commencement and conduct of trial proceedings ....
B. Rights of the accused ............................ 106 - 107 27
C. Protection of victims and witnesses .............. 108 - 109 28
D. Judgement and penalties .......................... 110 - 115 28
E. Appellate and review proceedings ................. 116 - 120 29
F. Enforcement of sentences ......................... 121 - 124 30
VI. COOPERATION AND JUDICIAL ASSISTANCE .................. 125 - 127 31 VII. GENERAL PROVISIONS ................................... 128 - 138
32A. The status, privileges and immunities of the
International Tribunal ...........................
B. Seat of the International Tribunal ............... 131 - 132 33
C. Financial arrangements ........................... 133 - 134 33
D. Working languages ................................ 135 - 136 34
E. Annual report .................................... 137 - 138 34
Annex. Statute of the International Tribunal .............Introduction
1. By paragraph 1 of resolution 808 (1993) of 22 February 1993, the Security Council decided "that an international tribunal shall be established for the prosecution of persons responsible for serious violations international humanitarian law committed in the territory of the former Yugoslavia since 1991". 2. By paragraph 2 of the resolution, the Secretary- General was requested "to submit for consideration by the Council at the earliest possible date, and if possible no later than 60 days after the adoption of the present resolution, a report on all aspects of this matter, including specific proposals and where appropriate options for the effective and expeditious implementation of the decision [to establish an international tribunal], taking into account suggestions put forward in this regard by MemberStates." 3. The present report is presented pursuant to that request. Resolution 808 (1993) represents a further step taken by the Security Council in a series of resolutions concerning serious violations of international humanitarian law occurring in the territory of the former Yugoslavia. 5. In resolution 764 (1992) of 13 July 1992, the Security Council reaffirmed that all parties to the conflict are bound to comply with their obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches. 6. In resolution 771 (1992) of 13 August 1992, the Security Council expressed grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia and especially in Bosnia and Herzegovina,including reports of mass forcible expulsionand deportation of civilians, imprisonment and abuse of civilians in detention centres, deliberate attacks on non-combatants, hospitals and ambulances, impeding the delivery of food and medical supplies to the civilian population, and wanton devastation and destruction of property. The Council strongly condemned any violationsof international humanitarian law, including those involved inthe practice of "ethnic cleansing", and demanded that all parties to the conflict in the former Yugoslavia cease and desist from all breaches of international humanitarian law.It called upon States andinternational humanitarian organizations to collate substantiated information relating to the violations of humanitarian law, including grave breaches of the GenevaConventions, being committed in the territory of the former Yugoslavia and to make this information availableto the Council. Furthermore, the Council decided, acting under Chapter VII of the Charter of the United Nations, that all parties and others concerned in the former Yugoslavia, and all military forces in Bosnia and Herzegovina, should comply with the provisions of that resolution, failing which the Councilwould need to take further measures under the Charter. 7. In resolution 780 (1992) of 6 October 1992, the Security Council requested the Secretary-General to establish an impartial Commission of Experts to examine and analyse the information as requested by resolution 771 (1992), together with such further information as theCommission may obtain through its own investigations or efforts, of other persons or bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia.
8. On 14 October 1992 the Secretary-General submitted a report to the Security Council pursuant to paragraph 3of resolution 780 (1992) in which he outlined his decision to establish a five-member Commission of Experts (S/24657). On 26 October 1992, the Secretary-General announced the appointment of the Chairman and members of the Commission of Experts.
9. By a letter dated 9 February 1993, the Secretary- General submitted to the President of the Security Council an interim report of the Commission of Experts(S/25274), which concluded that grave breaches and other violations of international humanitarian law had been committed in the territory of the former Yugoslavia, including wilful killing, "ethnic cleansing", masskillings,torture, rape, pillage and destruction of civilian property, destruction of cultural and religiousproperty and arbitrary arrests. In its report, the Commission noted that should the Security Council or another competent organ of the United Nations decide to establish an ad hoc international tribunal, such a decision would be consistent with the direction of its work. 10. It was against this background that the Security Council considered and adopted resolution 808 (1993). After recalling the provisions of resolutions 764(1992),771 (1992) and 780 (1992) and, taking into considerationthe interim report of the Commission of Experts, the Security Council expressed once again its grave alarm atcontinuing reports of widespread violations of internationalhumanitarian law occurring within the territory of the former Yugoslavia, including reports ofmass killings and the continuation of the practice of "ethnic cleansing". The Council determined that this situation constituted a threat to international peace and security, and stated that it was determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them. The Security Council stated its conviction that in the particular circumstances of the former Yugoslaviathe establishment of an international tribunal would enable this aim to be achieved and would contribute to the restoration and maintenance of peace.
11. The Secretary-General wishes to recall that in resolution 820 (1993) of 17 April 1993, the Security Councilcondemned once again all violations of international humanitarian law, including in particular, the practice of "ethnic cleansing" and the massive, organized and systematic detention and rape of women, and reaffirmed that those who commit or have committed or order or have ordered the commission of such acts will be held individually responsible in respect of such acts.
B
12. The Security Council’s decision in resolution 808 (1993) to establish an international tribunal is circumscribed in scope and purpose: the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. The decision does not relate to theestablishment of an international criminal jurisdiction in general nor to the creation of an international criminal court of a permanent nature, issues which are and remain under active consideration by the International Law Commission and the General Assembly.
C
13. In accordance with the request of the Security Council, the Secretary-General has taken into account inthe preparation of the present report the suggestions put forward by Member States, in particular those reflected in the following Security Council documents submitted by Member States and noted by the Council in its resolution 808 (1993): the report of the committee of jurists submitted by France (S/25266), the report of the commission of jurists submitted by Italy (S/25300), and the report submitted by the Permanent Representativeof Sweden on behalf of the Chairman-in-Office of the Conference on Security and Cooperation in Europe (CSCE) (S/25307). The Secretary-General has also sought the viewsthe Commission of Experts established pursuant to Security Council resolution 780 (1992) and has made use of the information gathered by that Commission. In addition, the Secretary-General has taken into account suggestions or comments put forward formally or informally by the following Member States since the adoption of resolution 808 (1993): Australia, Austria, Belgium, Brazil, Canada, Chile, China, Denmark, Egypt,* Germany, Iran (Islamic Republic of),* Ireland, Italy, Malaysia,* Mexico, Netherlands, New Zealand, Pakistan,* Portugal, Russian Federation, Saudi Arabia,* Senegal,* Slovenia, Spain, Sweden, Turkey,* United Kingdom of Great Britain and Northern Ireland, United States of America and Yugoslavia. He has also received suggestions or comments froma non-member State (Switzerland).
14. The Secretary-General has also received comments from the International Committee of the Red Cross (ICRC)and from the following non-governmental organizations: Amnesty International, Association Internationale des Jeunes Avocats, Ethnic Minorities Barristers’ Association, Fédération internationale des femmes des carrières juridiques, International Criminal Police Organization, Jacob Blaustein Institution for the Advancement of Human Rights, Lawyers Committee for Human Rights, National Alliance of Women’s Organisations (NAWO),and Parliamentarians for Global Action. Observations have also been receivedfrom international meetings and individual experts in relevant fields.
__________
* On behalf of the members of the Organization of the Islamic Conference (OIC) and as members of the Contact Group of OIC on Bosnia and Herzegovina.
15. The Secretary-General wishes to place on record hisappreciation for the interest shown by all the Governments, organizations and individuals who have offered valuable suggestions and comments.
D
16. In the main body of the report which follows, the Secretary-General first examines the legal basis for theestablishment of the International Tribunal foreseen in resolution 808 (1993). The Secretary-General then sets out in detail the competence of the International Tribunal as regards the law it will apply, the persons to whomthe law will be applied, including considerations as to the principle of individual criminal responsibility, itsterritorial and temporal reach and the relation of itswork to that of national courts. In succeeding chapters, the Secretary-General sets out detailed views on the organization of the international tribunal, the investigation and pre-trial proceedings, trial and post-trial proceedings, and cooperation and judicial assistance. A concluding chapter deals with a number ofgeneral and organizational issues such as privileges andimmunities, the seat of the international tribunal, working languages and financial arrangements.
17. In response to the Security Council’s request to include in the report specific proposals, the Secretary-General has decided to incorporate into the report specific language for inclusion in a statute of the International Tribunal. The formulations are based upon provisions found in existing international instruments, particularly with regard to competence ratione materiae of the International Tribunal. Suggestionsand comments, including suggested draft articles, received from States, organizations and individuals as noted in paragraphs 13 and 14 above, also formed the basis upon which the Secretary-General prepared the statute. Texts prepared in the past by United Nations or other bodies for the establishment of international criminal courts were consulted by the Secretary-General, including texts prepared by the United Nations Committeeon International Criminal Jurisdiction, the International Law Commission, and the International Law Association. Proposals regarding individual articles are, therefore, made throughout the body of the report; the full text of the statute of the International Tribunal is contained in the annex to the present report.
I. THE LEGAL BASIS FOR THE ESTABLISHMENT OF THE INTERNATIONAL
TRIBUNAL
18. Security Council resolution 808 (1993) states that an international tribunal shall be established for the
prosecution of persons responsible for serious
violations of international humanitarian law committed
in the territory of the former Yugoslavia since 1991.
It does not, however, indicate how such an internationaltribunal is to be established or on what legal basis.
19. The approach which, in the normal course of events,would be followed in establishing an international
tribunal would be the conclusion of a treaty by which
the States parties would establish a tribunal and
approve its statute.This treaty would be drawn up and
adopted by an appropriate international body (e.g., the General Assembly or a specially convened conference),
following which it would be opened for signature and
ratification. Such an approach would have the advantageof allowing for a detailed examination and elaboration
of all the issues pertaining tothe establishment of the international tribunal. It also would allow the States participating in the negotiation and conclusion of the
treaty fully to exercise their sovereign will, in
particular whether they wish to become parties to the
treaty or not.
20. As has been pointed out in many of the comments
received, the treaty approach incurs the disadvantage ofrequiring considerable time to establish an instrument
and then to achieve the required number of ratificationsfor entry into force. Even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to betruly effective.
21. A number of suggestions have been put forward to
the effect that the General Assembly, as the most
representative organ of the United Nations, should have a role in the establishment of the international
tribunal in addition to its role in the administrative
and budgetary aspects of the question. The involvement of the General Assembly in the drafting or the review ofthe statute of the International Tribunal would not be
reconcilable with the urgency expressed by the Security Council in resolution 808 (1993). The Secretary-Generalbelieves thatthere are other ways of involving the
authority and prestige of the General Assembly in the
establishment of the International Tribunal.
22. In the light of the disadvantages of the treaty
approach in this particular case and of the need indicated in resolution 808 (1993) for an effective and
expeditious implementation of the decision to establish an international tribunal, the Secretary-General believes 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. 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 thepeace, breach of the peace or act of aggression.
23. This approach would have the advantage of being
expeditious and of being immediately effective as all
States would be under a binding obligation to take whatever actionis required to carry out a decision taken as
an enforcement measure under Chapter VII.
24. In the particular case of the former Yugoslavia,
the Secretary-General believes that the establishment ofthe International Tribunal by means of a Chapter VII
decision would be legally justified, both in terms of
the object and purpose of the decision, as indicated in the preceding paragraphs, and of past Security Council
practice.
25. As indicated in paragraph 10 above, the Security
Council has already determined that the situation posed by continuing reports of widespread violations of
international humanitarian law occurring in the former
Yugoslavia constitutes a threat to international peace
and security. The Council has also decided under
Chapter VII of the Charter that all parties and others
concerned in the former Yugoslavia, and all military forces in Bosnia and Herzegovina, shall comply with the provisions of resolution 771 (1992), failing which it wouldneed to take further measures under the Charter.
Furthermore, the Council has repeatedly reaffirmed that all parties in the former Yugoslavia are bound to complywith the obligations under international humanitarian
law and in particular the Geneva Conventions of 12
August 1949, and that persons who commit or order the
commission of grave breaches of the Conventions are
individually responsible in respect of such breaches.
26. Finally, the Security Council stated in resolution 808(1993) that it was convinced that in the particular
circumstances of the former Yugoslavia, the
establishment of an international tribunal would bring
about the achievement of the aim of putting an end to
such crimes and of taking effective measures to bring tojustice the persons responsible for them, and would
contribute to the restoration and maintenance of peace.
27. The Security Council has on various occasions
adopted decisions under Chapter VII aimed at restoring
and maintaining international peace and security, which have involved the establishment of subsidiary organs fora variety of purposes. Reference may be made in this regard to SecurityCouncil resolution 687 (1991) and subsequent resolutions relating to the situation between Iraq and Kuwait.
28. In this particular case, the Security Council wouldbe establishing, as an enforcement measure under ChapterVII, a subsidiary organ within the terms of Article 29
of the Charter, but one of a judicial nature. This
organ would, of course, have to perform its functions
independently of political considerations; it would not be subject to the authority or control of the Security
Council with regard to the performance of its judicial
functions. As an enforcement measure under Chapter VII,however, the life span of the international tribunal
would be linked to the restoration and maintenance of
international peace and security in the territory of theformer Yugoslavia, and Security Council decisions
related thereto.
29. It should be pointed out that, in assigning to the
International Tribunal the task of prosecuting persons
responsible for serious violations of international
humanitarian law, the Security Council would not be
creating or purporting to "legislate" that law. Rather,the International Tribunal would have the task of
applying existing international humanitarian law.
30. On the basis of the foregoing considerations, the
Secretary-General proposes that the Security Council,
acting under Chapter VII of the Charter, establish the
International Tribunal. The resolution so adopted would have annexed to it a statute the opening passage of which
would read as follows:
Having been established by the Security Council
acting under Chapter VII of the Charter of the United
Nations, 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
(hereinafter referred to as "the International Tribunal)shall function in accordance with the provisions of the present Statute.