THE PROSECUTION OF INTERNATIONAL CRIMES: A CRITICAL STUDY OF THE INTERNATIONAL TRIBUNAL FOR THE FORMER YUGOSLAVIA by Roger S. Clark and Madeleine Sann (Editors). Brunswick, New Jersey: Transaction Publishers, 1996. 502 pp. Cloth $49.95. ISBN 1-56000-269-7.

Reviewed by James M. McCormick, Department of Political Science, Iowa State University

 
This edited volume, originally a special issue of the CRIMINAL LAW FORUM, illustrates the problems and possibilities of the global community in addressing some of the most heinous crimes in human history through international legal means. In particular, the collection of essays examines the difficulties and successes in establishing the International Tribunal for the Former Yugoslavia in the earlier 1990’s. While the authors critically evaluate the evolution and initial operation of the Tribunal, they are cautiously optimistic about its implication for advancing the rule of international law and the growth of global humanitarian law.

The volume, written and edited by a distinguished group of international lawyers, scholars, and practitioners, is divided into five major parts. Part I consists of three essays and sets the contextual background for the discussion of the Tribunal. One essay provides some background on Yugoslavia, another discusses tribunals dealing with crimes against humanity historically, and most recently in Canada, and a third applauds the establishment of the International Tribunal and previews the subsequent chapters in the volume.

Part II consists of a single chapter by M. Cherif Bassiouni. This chapter outlines the formation, activities, and the key findings in the report of the Commission of Experts. The Commission, in which Bassiouni was a key participant, was a precursor to the establishment of the International Tribunal and gathered evidence on violations of international humanitarian law in the former Yugoslavia under UN Security Council auspices. The Commission collected an abundance of material from a wide array of sources (although the quality of the evidence was not always the kind that would stand up in court), but it also encountered numerous difficulties. The problems focused primarily on the minimal amount of financing for the Commission, the difficulties in securing full cooperation from the United Nations, target countries, and various ethnic communities, and, ultimately, the pressures to cut the inquiry short by the United Nations itself. Still, Bassiouni was able to establish a comprehensive database on these human rights violations at DePaul University and that evidence was sufficient to serve as a strong impetus to establishing the International Tribunal for the Former Yugoslavia.

Part III consists of four chapters and focuses on several issues associated with the establishment of the International Tribunal. The first deals with the components of the Statute for the Tribunal, while the second addresses the legal means for creating the Tribunal. Peter Burns catalogues the evolution of the International Tribunal and then provides an article-by-article discussion of the Statute of the Tribunal. He shows how a variety of influences shaped the emergence of the Statute--the work of legal scholars (e.g., M. Cherif Bassiouni), the International Law Commission, and the proposals of particular nations. Importantly, in Burns’s view, the Statute began the process of incorporating the international humanitarian law, violations of the laws of war, crimes against humanity and acts of genocide into its various articles. Furthermore, the Statute was quite clear and firm on the principles of collective and individual responsibility: no person could simply claim to be following order over alleged human rights violations, and a commander or superior was responsible for orders given to others or for actions which they condoned. Roman A. Kolodkin analyzes the basis for the establishment of the International Tribunal. Should it be done by treaty, a UN Security Council resolution, or a UN General Assembly resolution? Kolodkin argues that a treaty is unworkable, since some nations would not participate, and neither the UN General Assembly nor the UN Security Council has the legal authority to establish such a judicial body. The Security Council, however, has a responsibility under Chapter VII of the UN Charter to address matters of peace and security in the international system. As such, Kolodkin contends that the Security Council could establish this temporary Tribunal under that aegis (as it did), but Chapter VII could not be used to establish a permanent criminal court. If that action were contemplated, some revision of the UN Charter would likely be necessary.

The other two chapters in Part III deal with associated issues in the establishment of the Tribunal. David P. Forsythe offers a considerably more skeptical view of the International Tribunal than the other authors for at least two reasons: the largely tepid support from key nations in the international community and the problems of actually bringing the accused to trial and justice. The support for the Tribunal was decidedly mixed among some states--with the British more opposed, the Americans more supportive, and other nations arrayed in between. Furthermore, the difficulties in making the Tribunal function effectively, in Forsythe’s view, are indeed "profound," since apprehending and bringing so many potential violators to justice represent Herculean tasks. Instead, he proposes that perhaps an "international truth commission," such as in El Salvador (or more recently in South Africa), may be a better way to proceed. Finally, Julian J.E. Schutte covers a great deal of ground in his essay--focusing in considerable detail on the various issues involved in establishing the International Tribunal in The Hague (including the specific responsibilities of The Netherlands in dealing with security for the courts and personnel associated with the Tribunal), the rules of evidence and procedure for the Tribunal (including his concern over the relatively mild punishment for contempt of court and perjury under the adopted procedures), and the long-term implication of the International Tribunal for a permanent international court.

In Part IV, four chapters examine a variety of procedural and substantive issues relating to the operation of the Tribunal. Pavel Dolenc provides a Slovenian perspective on the Tribunal and identifies several possible points of contention between Slovenia and the requirements of the Statute for the Tribunal. These include the relationship between international principles and Slovenian law, the issue of extradition from Slovenia, and the question of double jeopardy for the accused. In part, of course, these, and related, issues would arise for virtually any state. C.P.M. Cleiren and M.E.M. Tijssen provide an extended discussion of the problems of prosecuting rape and sexual assault cases. In particular, they laud the Statute for the International Tribunal for incorporating rape as a crime against humanity and discussed the legal basis for the universality of rape law in the international community--whether in international or domestic conflicts and whether in wartime or peacetime situations. Next, Daniel D. Ntanda Nsereko takes a detailed look at the Rules of Procedure and Evidence for the International Tribunal. While these procedures generally comport with a fair trial for the accused, there are some discontinuities that remain to be addressed in his view. Yet, in comparison with the Nuremberg procedures, the International Tribunal for the Former Yugoslavia represents an improvement. Finally, Kenneth S. Gallant discusses the efforts to secure defendants for the International Tribunal from other countries. The Statute calls for the "transfer" or "surrender," not the "extradition" of the accused from a state to the Tribunal. In this sense, the Statute connotes the "primacy of the Tribunal" and the expectation of all states to cooperate. Any lack of cooperation on "transfer" of the accused would be an issue for consideration by UN Security Council for action. Yet, no international police force exists to make these transfers a reality.

Finally, Part V is a fairly long appendix of about 150 pages in which key UN Security Council Resolutions on the former Yugoslavia, the UN Secretary-General’s Report, the Statute of the International Tribunal for the Former Yugoslavia, and the Rules of Procedure and Evidence for the Tribunal are provided. In addition, the UN Security Council resolution and accompanying Statute on establishing an International Tribunal on Rwanda are reprinted as well. For the reader less familiar with these resolutions, he or she should consider reviewing the appendix first to appreciate the references more fully within the various essays.

The volume thus has a wealth of information and analyses from which the citizens, practitioners, and scholars will benefit, although the specialized student of these issues will especially appreciate the detailed assessments. As such, the volume has much to recommend and should be carefully studied by those in the international law field. Yet some organizational and substantive shortcomings exist that may reduce the overall utility of the volume for a wide audience.

Organizationally, the structure and presentation of the volume is not always as integrated or as tightly configured as it might be. As a result, some redundancy and lack of focus occurs throughout the various essays. Consider Part I, for example. The essays there are presented neither in logical nor chronological order. If the historical material were placed first, then the Yugoslav case, and finally the material on the evolution of the Tribunal, the book would have been better served. This same problem occurs in Part III. If the essays in this part are really about the establishment of the Tribunal, should they not be organized differently? The basis for the establishment of the Tribunal (the Kolodkin essay) should come first. It should be followed by the article on the Statute (the Burns essay), the piece on the responsibilities of the host country (the Schutte essay), and then, finally, the more overarching piece on the politics of the Tribunal (the Forsythe essay). In this way, the reader could discern more fully the development of the Tribunal and the consequent concerns. (To be fair, this organizational concern is less an issue in Part IV where the essays hew more closely to a particular substantive problem.) While this organizational issue may appear at first blush to be a minor point, I believe that a sharper structure would have integrated the essays and also would have directed the authors of the chapters to sharpen their analysis of the key points germane to their portion of the volume.

On a substantive level, the issue is less what is here than what is not. The volume clearly reminds us of the substantial barriers to securing human rights and in prosecuting violators at an international level, and it also conveys how far international standards in the humanitarian areas have progressed with the slow, but sure, evolution of customary law to statute law, as epitomized by the Statute for the International Tribunal for the Former Yugoslavia. While the concept of sovereignty still looms large in shaping international humanitarian law--whether in considering the establishment of an ad hoc or permanent international tribunal, in securing the cooperation of states in transferring indicted and accused human rights violators, or in addressing the issue of double jeopardy between a national tribunal and the international one--the emergence of international obligations of states under the
Statute and under Chapter VII of the UN Charter illustrates how much sovereignty is under challenge.

What cannot be answered by this volume, either about the International Tribunal for the Former Yugoslavia or about the progress of international humanitarian law generally, is its ultimate effectiveness for at least two reasons. First, the volume was completed before the Dayton Accords (although the editors in the preface try to update matters to late 1995). Whether Dayton would have an effect or not is obviously highly debatable in light of the (in)actions of the past two years. But the parties were nevertheless obligated to bring the accused to justice under this accord. Second, the essays largely (and by necessity) focus on the process of creating the Tribunal and much less (if at all) on its outcomes. Only when this other half of the story of the International Tribunal is written, then, may we be able to conclude confidently, with Gallant, that "the creation of the International Tribunal represents a significant advance...for international law" (p. 374).