Secretary-General’s formal note on legality of ICTY (S/25704)

 

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 .....................................
  1. IV.   INVESTIGATION AND PRE-TRIAL PROCEEDINGS .............
    
  2.  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.