Human Rights Brief
A Legal Resource for the International Human Rights CommunityFall 1995
War Crimes Tribunal Dismisses Jurisdictional Challenge
by Diane Orentlicher*
On October 2, 1995, the Appeals Chamber (Chamber) of the International Criminal Tribunal for Yugoslavia (IT) rendered one of the most important rulings on war crimes since the Nuremberg judgment. At that time, the laws of war applied almost exclusively to wars between states. Fifty years ago, if governments went to war against their own citizens, international law would look the other way, however gruesomely the battles were waged. No longer. In a decision on jurisdiction, the Chamber ruled that some atrocities committed in civil wars are international crimes crimes for which an international court can summon individuals to account.
This ruling reflects a profound change in the nature of armed conflict since World War II, and a corresponding change in the laws of war. As the decision notes, the law previously enforced a "stark dichotomy," elaborately regulating wars between states while shielding the conduct of civil wars from the scrutiny of global conscience. But the dichotomy has gradually broken down, the Chamber noted, in part because the "State-sovereignty-oriented approach" that left states alone when it came to internal conflicts "has been gradually supplanted by a human-being-oriented approach" in postwar international law.
At the same time, civil wars have become both more frequent (one study has identified 94 armed conflicts during a recent six-year period; of these, only four were classic inter-state conflicts) and more savage, often entailing violence on a scale so vast that their effects reverberate across an increasingly interdependent world. In consequence, the Chamber concluded, "the international community can no longer turn a blind eye to the legal regime of such wars."
No case better illustrates the point than the one which gave rise to the judgment. The decision arose out of a challenge to the Tribunal's jurisdiction by its first defendant, Dusko Tadic, a former cafe owner and karate instructor in the Prijedor district of Bosnia. His alleged crimes are emblematic of the depravity with which contemporary ethnic conflicts have been waged: When I visited a refugee camp in Croatia two and one-half years ago, relief workers told our delegation (which also included Visiting WCL Professor Karen Musalo) about a recent arrival from Bosnia who was experiencing extreme trauma. The refugee, who had been detained at the notorious Omarska camp in Prijedor, had been forced to bite off the testicles of another detainee, who died of his injuries. Tadic has been charged with responsibility for this incident, along with a grim litany of other crimes committed in Bosnia. At one time Tadic's depredations would have shocked universal conscience, but the laws of war would have had little to say about them, since both Tadic and his alleged victims are citizens of the same state.
In larger perspective, the Chamber's decision made clear that the IT has emerged as a genuinely independent body. Notably, the decision reversed key portions of the Trial Chamber's ruling on jurisdiction, demonstrating the Appeals Chamber's ability and willingness to provide meaningful review. In contrast, defendants at Nuremberg were denied any right to appeal judgments against them. In further demonstration of judicial independence, the Chamber declined to adopt some of the key positions advanced by the prosecution.
These hallmarks of independence are especially noteworthy in view of the Tribunal's creation by the quintessential political body, the UN Security Council. The Chamber declared itself competent to judge the Council's own authority in establishing the Tribunal, and proceeded to do just that. The IT thereby asserted a power of judicial review over the Council that even the International Court of Justice has hesitated to claim. (Intimations of such review in a case arising out of the Lockerbie incident has fairly tantalized international lawyers.)
More importantly, the Chamber's decision on jurisdiction goes a long way toward neutralizing the Council's capacity to eviscerate the process of accountability it instituted two years ago. Since its creation, the Tribunal has operated under the Damoclean threat that, in exchange for their agreement to a peace accord, the architects of "ethnic cleansing" would be granted impunity a deal that the UN could honor only if the Security Council abolished the Tribunal. Significantly, however, the Chamber noted that "universal jurisdiction" is "nowadays acknowledged in the case of international crimes." As international crimes, the alleged depredations of suspects like Tadic can be punished, in short, by any state to which they may travel. The Chamber has thus helped assure that those responsible for Balkan war crimes will face the specter of prosecution the world over if not by the Tribunal, then by any state. In fact, as of early November, far from offering impunity in exchange for a peace accord, United States negotiators took the position that the proposed accord should include an agreement by the parties to cooperate with the Tribunal.
The Chamber's decision was soon followed by the IT's first proceeding under its "super indictment" procedure. From October 9 through 13, 1995, one of the IT's two trial Chambers convened a public hearing to receive evidence against Dragan Nikolic, the first suspect indicted by the Prosecutor. The aim of the hearing was to secure an international arrest warrant against Nikolic, who has thus far eluded capture. On October 20th, the (Chamber confirmed the indictment and issued an international arrest warrant. At the hearing, some of Nikolic's victims were given a precious chance to secure some measure of accountability by bearing witness in a court of law. In the words of Chief Prosecutor Richard Goldstone at the opening of the hearing, theirs were "the first voices of the victims to atrocities in the former Yugoslavia to testify before this Tribunal and by so doing those voices will echo throughout the world."
WCL Inaugurates War Crimes Tribunal Research OfficeThe Center for Human Rights and Humanitarian Law at WCL has established a Research Office for the International Criminal Tribunals for the Former Yugoslavia and Rwanda in August of this year. Utilizing the work of WCL faculty and students, the Research Office provides legal support and technical assistance to the Prosecutors Office in prosecuting individuals responsible for the crimes committed in the former Yugoslavia and Rwanda. Under the direction of Professor Diane Orentlicher, the Research Office is coordinated by Rochus J.P. Pronk, a lawyer from the Netherlands and recent WCL LL.M. graduate. The Office is financed by the Open Society Institute. The Research Office invites those interested in contributing to this effort to contact Mr. Pronk via the Center for Human Rights and Humanitarian Law. |
In his closing argument at Nuremberg, Chief American Prosecutor Robert Jackson memorably invoked the redemptive power of law. "Goaded," he said, by the immensity of Nazi evil, "we were moved to redress the blight on the record of our era." Fifty years later, the international community has once again acted to redress its failure to check "ethnic cleansing" in the heart of Europe by establishing an international criminal tribunal. While the IT still faces formidable challenges, it has already given cause to hope that, like the Nuremberg precedent, its work may emerge as "one of the most significant tributes that power has ever paid to reason" and, at last, to the rule of law.
* Diane Orentlicher is a Professor of Law at WCL and Director of WCL's newly-established War Crimes Tribunal Research Office.
The proper citation for this article in the Human Rights Brief Volume 3, Number 1, beginning at page 1 is: 3 No. 1 Hum. Rts. Brief 1 (1995).