“Courts try cases but cases also try courts. … You must put no man on trial before anything that is called a court … under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty …”[1]

The famous dictum of Supreme Court Justice Robert H. Jackson, U.S. Chief Prosecutor at Nürnberg, made in April 1945 in connection with the Nürnberg Tribunal, expresses the basic challenge faced by any ad hoc court, whether established by the victor(s) after a war or in the context of an unequal power constellation resulting from or related to actual armed conflict. The concerns about fairness and impartiality, expressed in 1945, are highly relevant for the evaluation of the ongoing ad hoc tribunals for Yugoslavia and Rwanda, established by resolutions of the Security Council. Spectacular cases such as that of Slobodan Milošević before the Yugoslavia Tribunal in The Hague have demonstrated the predicament of universal jurisdiction, when exercised in the context of military conflicts and political disputes, to a wider international public. International criminal justice faces nearly insurmountable difficulties when it has to be practiced under conditions in which power politics – in the form of the national interests of the most powerful members of the Security Council – determines not only the setting up of a tribunal, but, at least indirectly, the conduct of the proceedings. We shall deal here with the Yugoslavia Tribunal as an exemplary case. Its political-legal characteristics and problems are also indicative of the problems of the Security Council tribunal for Rwanda.

The author has highlighted the political-legal dilemma of such ad hoc bodies in the 1999 Memorandum on the Indictment of the President of the Federal Republic of Yugoslavia, the President of the Republic of Serbia and Other Officials of Yugoslavia by the International War Crimes Tribunal for the Former Yugoslavia, which is reprinted in the annex below. We shall deal here only with some of the basic questions of legitimacy and procedure.

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 (ICTY)[2] was established by Security Council resolution 827 on 25 May 1993. The resolution was adopted on the basis of Chapter VII of the UN Charter, which implies that it is binding upon all UN member states. The Chapter VII aspect of the resolution essentially guarantees the authority of the court[3] – though it does not provide legitimacy of its jurisdiction. The Statute of the Tribunal was amended by Security Council resolutions 1166, adopted on 13 May 1998, and 1329, adopted on 30 November 2000.

In its actual version, the Statute cannot ensure the independent functioning of the Tribunal. It falls short of meeting even the basic requirements of the separation of powers. This can be explained by the fact that the interests of some of the Security Council’s permanent members substantially influenced the drafting of the Statute. One of the decisive weaknesses, in this regard, are the provisions for the appointment of the functionaries of the Tribunal.

The procedures for the appointment of the judges of the Tribunal (Art. 13 bis of the Statute) leave room for international power politics. Permanent judges are first proposed (nominated) by UN member states and non-member states maintaining permanent observer missions at the UN, whereby each state may nominate up to two candidates. Out of these nominations, the Security Council establishes a list of at least 28 and at most 42 candidates, “taking due account of the adequate representation of the principal legal systems of the world” (Art. 13 bis [1] [c]).[4] In a further step, the General Assembly of the United Nations elects 14 permanent and – on the basis of an identical procedure outlined in Art. 13 ter – 27 ad litem judges by absolute majority. According to Art. 13 ter (2), ad litem judges are appointed by the Secretary-General of the United Nations, upon request of the President of the Tribunal, to serve in the various Trial Chambers of the Tribunal. The President of the International Tribunal is elected by the permanent judges (Art. 14 [1]). He decides about the composition of the Trial and Appeal Chambers. The respective procedures in the Statute of the International Tribunal for Rwanda (Arts. 12 and 13), adopted as Annex to Security Council resolution 955 (1994) on 8 November 1994, are almost identical.[5]

It is obvious, from the sequential order of the procedural steps leading to the appointment of the judges, that the Security Council – the supreme executive organ of the United Nations – wields decisive power in this process. By virtue of the provision of Art. 13 bis 1 (c), the Council – and in particular its permanent members – can prevent anyone from being elected. Because of the veto power enshrined in Art. 27 of the UN Charter, no one can be elected as judge of the International Tribunal if his nomination is rejected by a permanent member. Candidates must not only enjoy the confidence of the statutory majority of the Council members (nine out of fifteen states), but also of all five permanent members. It needs only basic common sense to realize that such selection procedures do not bode well for the independence and impartiality of the judges. The screening procedures provide the guarantee that no one who is not politically acceptable to a permanent member will ever be elected. The performance of the British judge Robert May in the Milošević trial is a clear case in point. Not only belongs judge May to one of the countries that were parties in the war against the country of which the defendant was President at the time[6] – a fact of bias which in any national jurisdiction would be reason for exclusion –, he performed his duties as presiding judge of the International Tribunal in the Milošević trial in such a way that he was perceived more as prosecutor – or political inquisitor – than as independent judge.[7]

The procedure for the appointment of the prosecutor of the Tribunal is even more directly under the control of the Security Council. According to Art. 16 (4) of the Statute, the prosecutor is appointed by the Security Council “on nomination by the Secretary-General” of the United Nations. Because of the implications of the veto rule of Art. 27 of the UN Charter,[8] this means unrestrained superpower control over the appointment; the procedure de facto excludes the possibility of a politically independent person being chosen. The performance of prosecutors Louise Arbour and Carla Del Ponte has been a vivid illustration of the intricate connection of the Tribunal with international power politics. (The political character of the Tribunal is referred to in more detail in the author’s Memorandum reprinted in the annex below.) The Tribunal’s prosecutor, directly appointed by the Security Council and – almost unavoidably – “screened” in regard to the national interests of the Council’s permanent members, enjoys full powers and quasi-independence under the Statute. According to Art. 18 (1) he/she shall initiate investigations ex officio – a formal independence which, in view of the appointment procedure, is not really “risky” for the Council’s permanent members. Under Art. 15 (3) of the Statute of the International Tribunal for Rwanda, the prosecutor of the Yugoslavia Tribunal also serves as prosecutor of the Rwanda Tribunal. The statutes of both tribunals contain identical formulations about the prosecutor’s independence: “The Prosecutor shall act independently as a separate organ of the International Tribunal. He or she shall not seek or receive instructions from any Government or from any other source.”[9] The actual prosecutorial practice, however, has proven the opposite to be true. In the case of the Yugoslavia Tribunal, the prosecution has, in reality, acted as extended arm of the NATO alliance, initially complementing the military campaign in Yugoslavia (1999) and later following up on the NATO-dominated policy of "pacification" for the region of the former Yugoslavia. In our analysis, the Tribunal has so far not been able to demonstrate that it acts as an organ of universal jurisdiction. In regard to the impact of power politics, similar problems are evident in the setup and proceedings of the International Criminal Tribunal for Rwanda.[10]

The basic flaw in the setup of both ad hoc tribunals consists in the fact that the supreme executive organ of the United Nations, the Security Council, establishes a court and promulgates an elaborate statute for such a court by virtue of a resolution adopted under Chapter VII of the Charter. Resolutions under Chapter VII are legally binding upon all member states and may be enforced by “all necessary means,” including the use of armed force (Art. 42 of the UN Charter). However, those powers are entrusted to the Council to carry out its responsibility “to maintain or restore international peace and security” (Art. 39). Thus, in creating international criminal courts, the Security Council supposedly acts on the basis of its mandate to maintain or restore peace and security (sic!). The question of personal criminal responsibility is dealt with as if it were a question of international peace and security. Undoubtedly, as pointed out by the ICTY’s first President, Antonio Cassese, “justice is one of various means of achieving peace;”[11] but this possible – not necessary – consequence of criminal proceedings does in no way entitle the United Nations Security Council to act as creator of international courts.

As early as 1949, Judge Radhabinod Pal, the Indian member of the Tokyo War Crimes Tribunal, in his landmark Judgment (dissenting opinion) emphasized that the provisions of Chapter VII of the Security Council cannot be applied for action against individuals. He stated that Chapter VII “provides for ‘action with respect to threats to the peace, breaches of the peace, and acts of aggression’. The provisions of this chapter do not contemplate any steps against individuals. It may safely be asserted that the coercive actions envisaged by chapter VII would not be invoked individually against those who might be responsible for the functioning of the offending collective entity.”[12]

In our analysis, the Security Council’s acting as creator of judicial institutions is a classical case of a decision ultra vires, of an arrogation of powers the Council does not possess under the Charter. Questions of personal criminal responsibility can in no way be construed as being matters of international peace and security. According to the provisions of the UN Charter, the latter relate to states, not individuals. In the context of the respective Security Council resolutions, criminal courts are rather artificially – and arbitrarily, for that matter – seen as part of non-armed enforcement measures under Chapter VII.

This interpretation is much more in line with the justification of the practice of victors' justice after the two world wars than with modern international law. In the debate on the legitimacy of the Tokyo War Crimes Tribunal, for instance, reference was made to the provisions of Art. 43 of the Fourth Hague Convention of 1907: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”[13] In a way similar to the present argument in favour of acts of criminal prosecution being part of the Security Council’s measures to restore peace and security under Art. 39 of the UN Charter, it was argued that the setting up of a criminal tribunal by the victorious nations after a war was part of their right – and duty – to restore “public order and safety” according to Art. 43 of the Hague Convention of 1907.

In the case of the ad hoc tribunals, the Security Council not only acts as creator of a court – as a kind of supreme judicial authority, arrogating to itself powers it does not possess under the Charter; the Council directly determines the procedures for the setting up of the respective court and, thus, indirectly interferes into the functioning of the court. The Council – through its right to establish a list of candidates – exercises decisive control over the appointment of judges and directly appoints the prosecutor. The respective resolutions of the Security Council, setting up the two ad hoc tribunals on Yugoslavia and Rwanda, have constituted a double interference of (international) executive power into the affairs of the judiciary in the sense described above. Furthermore, the power of the Secretary-General of the United Nations – under Art. 13 ter (2) of the Statute of the Yugoslavia Tribunal – to appoint ad litem judges to serve in Trial Chambers constitutes another interference of executive power into the independent functioning of a court.

These statutory realities make the rather undeveloped and rudimentary state of international criminal law when exercised by such ad hoc courts drastically obvious. Even the most rudimentary elements of the rule of law are lacking in such tribunals. The separation of powers is virtually non-existent; international criminal justice is being practiced as part of power politics.[14] Through these tribunals the administration of justice is undertaken on an openly discriminatory basis: the decision for which countries international criminal tribunals are being created – and, by implication, the officials of which countries are eo ipso spared the scrutiny of their behavior in procedures of criminal law – as well as the decision which officials or members of which groups in the respective country are prosecuted depends on the actual constellation of political interests in the Security Council.

In the context of the ICTY, the principle of impartiality has been compromised from the very beginning. Because of the prevailing international power balance after the end of the Cold War, the Western countries that were involved in military actions on the territory of the former Yugoslavia were, in 1993, able to induce a resolution in the Security Council providing for the establishment of a court with the mandate to judge the actions of those countries’ adversaries. The circumstances of the creation of this court resemble very much the victors’ justice of the post-World War II tribunals. The driving force behind the creation of the Tribunal were the NATO countries, first and foremost the United States. Those countries exercised decisive influence over the setup, financing and operation of the Tribunal, and still continue to do so. The discrediting of the idea of international criminal justice has been an almost unavoidable consequence of the political circumstances under which the Tribunal was created and continues to operate.

Through its participation in the selection of judges and by virtue of its power to appoint the prosecutor, the Council exercises an indirect influence on the conduct of the court’s affairs. Thus, individuals may be indicted according to criteria of political convenience, not of universal justice. In the case of the Yugoslavia tribunal, no formal investigation or prosecution was ever initiated of officials of NATO countries (in spite of the many well documented cases of serious violations of international humanitarian law in the course of the NATO air campaign in Yugoslavia in 1999).[15] It is mainly members of the defeated Serbian leadership (from Bosnia and Yugoslavia) who were indicted and/or brought before the court in The Hague – a fact which is widely known at least in Europe.

What is less known is that in the case of the Rwanda Tribunal in Arusha (Tanzania) virtually all those indicted are members of the ethnic Hutu community. Apart from one European who cooperated with members of the Hutu tribe in the genocide of 1994, only Hutus have been indicted before the ICTR. This amounts to selective justice on an enormous scale. It is well documented that not only Hutus have committed genocidal crimes against members of the Tutsi community, but that the Tutsi-dominated Rwandan Patriotic Front (RPF) also killed thousands of civilians.[16] The RPF is a former rebel army that overthrew the Hutu-led government which was mainly responsible for the 1994 genocide. The former rebel commander, Paul Kagame, is currently the President of Rwanda. If the crimes committed by those presently in power “cannot be investigated by the Tribunal,” suggested South African researchers Gerhard Erasmus and Nadine Fourie, “the danger of ‘selective justice’ poses a serious obstacle to reconciliation and reconstruction.”[17] Up to the present moment, the Security Council has not used its coercive powers to make sure that all the crimes enumerated in the Statute of the International Tribunal for Rwanda as falling under the Tribunal’s jurisdiction – and not only the crime of genocide – are prosecuted on an equitable basis in regard to suspects from both ethnic communities without distinction.[18] The reasons for this lack of commitment to the principles of universal and non-selective jurisdiction are obviously political and stem from the national interests of certain permanent members of the Security Council.

It is no wonder that ad hoc tribunals created by resolutions of the Security Council are seen as the only acceptable form of the exercise of universal jurisdiction by all advocates of great power politics – and in particular by those who participated themselves in the conduct of their countries' foreign politics. Henry Kissinger, for instance, suggests – in an article apparently written pro domo – that (a) the Security Council (sic!) should set up a “Human Rights Commission” or special sub-committee to document international crimes; (b) the Council should consider to establish an ad hoc tribunal if the conditions for criminal prosecution on the national level are not acceptable in terms of genuine judicial proceedings; (c) the procedures for such tribunals and the scope of prosecution should be precisely defined by the Security Council.[19] Essentially, his proposals are meant to tame international criminal justice by making its exercise compatible with U.S. national interests. The unspoken expectation in Kissinger’s treatise on what he calls the “pitfalls” of universal jurisdiction is that criminal law on the international level should be practiced in such a way that incumbent as well as former United States officials – including himself – can never be brought to justice before an international court. This can only be ensured in a Security Council framework where the veto power offers protection – indeed virtual immunity – for officials of the five permanent members, including the United States.

In his evaluation of contemporary efforts towards a system of universal jurisdiction,  Benjamin B. Ferencz, former U.S. prosecutor at the Nürnberg Tribunal, points to the veto power as the decisive factor preventing the establishment of a genuinely independent and impartial tribunal: “As long as the Permanent Members of the Security Council have a right of veto, it is unlikely that agreement can be reached on creating an international tribunal to prosecute crimes that might be alleged against the leaders of Permanent Member states.”[20] The privileged statutory position of the permanent members of the Security Council also explains why the United States totally rejects the jurisdiction of the International Criminal Court while it has supported, at the same time, the role of the Security Council as creator of ad hoc tribunals.

Ferencz further emphasizes the lack of legal consistency and credibility of ad hoc tribunals created by the Security Council. Referring to the newly assumed role of the Security Council as creator of courts of law he said: “Yet the Council was not a judicial but a political body some of whose members, indeed the most capable of committing aggression, held a veto power. How could the veto power and the prosecutorial role of the Security Council be reconciled with a fair and impartial trial?”[21] These doubts raised by one of the leading advocates of post-World War II universal jurisdiction and supporter of the International Criminal Court underline the basic legitimacy problem of any such judicial undertaking in the power-dominated framework of the Security Council.

The practice of ad hoc tribunals – whether set up by a military alliance or the Security Council – has never been in conformity with Kelsen's maxim, referred to earlier, of "peace through law"[22] (or "peace through justice"). The tribunals have even proven counterproductive in that regard. In real terms, the creators of such courts have often tended to use judicial proceedings for the purpose of setting political scores. This is evidenced in the practice of selective prosecution in regard to the nationality of the suspects and in a further discrimination as to which individuals from which political or ethnic groups are to be prosecuted.

The handling of cases – and particularly the dismissal of cases – by the respective prosecutor of the ICTY is a clear case in point. Ms. Arbour and, so far, also Ms. Del Ponte have more acted like political officials – or public inquisitors – than as protagonists of an independent tribunal. In many prosecutorial decisions the prosecutors have not proven their commitment to the universal application of the norms of criminal law, but documented their loyalty vis-à-vis the most influential permanent members of the Security Council. The political bias of their prosecutorial decisions is directly related to the Security Council's control over the appointment of the Prosecutor. No one could have been chosen for this politically sensitive position who was not acceptable to the permanent members.

Furthermore, because of the creation of the tribunal by the Security Council – a political body – on the basis of Art. 39 of the UN Charter, the ICTY has been described as closely linked with the “political process for the restoration of peace in Yugoslavia”[23] whereby “its very duration may depend on the prevailing political situation.”[24] In his comprehensive analysis of the Yugoslavia Tribunal, Hazel Fox diagnosed a “politicized process substituted for trial by a criminal court”[25] and stated that the “politicization of the function of the Tribunal must undermine its impartial judicial status.”[26]

Ideally, the International Criminal Court should, in future, take over all such cases as are presently being handled by the Yugoslavia and Rwanda tribunals and should finally make ad hoc tribunals of the Security Council unnecessary. This view was also expressed by the first President of the Yugoslavia Tribunal, Professor Antonio Cassese: “… justice cannot be selective, the present ad hoc Tribunals should soon be replaced by a Permanent Criminal Court with general jurisdiction.”[27] According to his analysis, international criminal justice must be “truly international, truly impartial and truly fair justice.”[28] However, because of the provisions of Art. 11 of the Rome Statute, the ICC – unlike the two ad hoc tribunals – does not have retroactive jurisdiction – which means that the two tribunals cannot simply be phased out and integrated into the ICC. It is noteworthy that the Yugoslavia as well as the Rwanda tribunal have retroactive jurisdiction,[29] which means that, as regards jurisdiction ratione temporis, different legal standards are being applied in the statutes created by the Security Council on the one hand and in the Statute of the ICC on the other. In general, the legal standards of the Rome Statute are much higher – and more elaborate – than those of the two tribunals.

Numerous analyses have been published and a lot of material has been made available documenting the lack of impartiality and the political nature particularly of the Yugoslavia Tribunal. (The author summarized his concerns in the I.P.O. Memorandum of 27 May 1999 addressed to the United Nations Organization.) One of the most revealing documents is the transcript of a joint press conference by then U.S. Secretary of State, Madeleine Albright, and then Prosecutor of the ICTY, Justice Louise Arbour, in Washington, DC on 30 April 1999. At the height of the NATO “air campaign” in Yugoslavia, Justice Arbour, a citizen of Canada, had visited Western capitals for consultations in her capacity as Prosecutor of the Yugoslavia Tribunal.[30] It is worthy to note that, at the time, she visited London, Washington, Paris, and Bonn, but not Moscow or Beijing. In view of her independent status according to Art. 16 (2) of the Tribunal’s Statute, it is legitimate to ask what Ms. Arbour actually had to consult about. The Prosecutor is supposed “to act independently as a separate organ of the International Tribunal.” The Article states unambiguously: “He or she shall not seek or receive instructions from any Government or from any other source.”

The answers given in the course of the press conference conveyed quite a different impression. When asked whether they did discuss an indictment of Slobodan Milošević, then President of the Federal Republic of Yugoslavia, Madeleine Albright replied:

“Well, obviously, the question of what is going to happen to Mr. Milosevic is a subject that is very much on our minds, and Justice Arbour knows what we have said both publicly and privately; that she and the Tribunal need to follow out the trail of evidence to its conclusion. We, as I said, are supportive of her efforts …”[31]

And Prosecutor Arbour added:

“We are here, and elsewhere, to ensure that we get the assistance to move the cases forward in that direction. Whether it points to any particular individual, I think the law is very clear: there is no immunity before our Tribunal for heads of state.”[32]

A few weeks later, at the height of the NATO campaign in Yugoslavia, Ms. Arbour issued the indictment against President Milošević and other members of the Yugoslav and Serbian leaderships. Secretary Albright may have inadvertently revealed too much when she hinted at what Ms. Albright was told – “publicly and privately” – what she would “need to follow.”

Even more revealing is an answer given by NATO Spokesman Jamie Shea to a question over the actual jurisdiction of Justice Arbour as “chief prosecutor” of the ICTY. To Ms. Arbour’s credit it must be said that, in a speech delivered at the launch of the International Criminal Court Coalition’s global ratification campaign, she had claimed that the NATO countries are under the jurisdiction of her court; she had explained quite enthusiastically that the ICTY, in regard to the NATO military operations in Yugoslavia in 1999, is “a pre-existing International Tribunal, … whose reach is unqualified by nationality, whose investigations are triggered at the sole discretion of the Prosecutor and who has primacy over national courts.”[33] Answering the question whether NATO recognizes Prosecutor Arbour’s jurisdiction over their activities, Jamie Shea made a rather cynical statement which leaves no room for illusions about the possible independence of the ICTY and its Prosecutor:

“… I think we have to distinguish between the theoretical and the practical. I believe that when Justice Arbour starts her investigation, she will because we will allow her to. It’s not Milosevic that has allowed Justice Arbour her visa to go to Kosovo to carry out her investigations. If her court, as we want, is to be allowed access, it will be because of NATO so NATO is the friend of the Tribunal, NATO are the people who have been detaining indicted war criminals for the Tribunal in Bosnia.”[34]

This blunt statement – made a few days before Ms. Arbour announced the indictment of President Milošević – is not only an extreme humiliation of the supposedly independent “Chief Prosecutor,” it says more about the bearing of power politics on international criminal proceedings than many theoretical treatises. The statement has done away, once and for all, with the naïve assumptions, harboured by some idealists, about impartiality and due process in the context of a court that de facto operates on the basis of military power. Unintentionally and because he was surprised by a sharp question, Mr. Shea has revealed more about the real nature of the Security Council’s ad hoc tribunals than the official documents of the United Nations ever could.

The independence of the ICTY Prosecutor’s role has been compromised ever since. The performance of Ms. Del Ponte, Ms. Arbour’s successor as “chief prosecutor,” has still strengthened the appearance of the Yugoslavia Tribunal as a political court in which the decisions on indictments are determined by the interests of those Security Council member states that have initiated the Tribunal and where the Prosecutor, accordingly, interprets her duties in a political manner. This became again obvious in Ms. Del Ponte’s address to the Security Council in New York on 29 October 2002, where she reported on the difficulties she encountered in obtaining evidence and securing the appearance of prosecution witnesses, and where she briefed the Council on the obstacles to the handing-over of indictees to the Yugoslavia and Rwanda tribunals. Apparently in order to convince the Security Council to take action on these issues, Ms. Del Ponte tried to assume the role of political analyst or commentator, something which is not compatible with the strictly judicial function of a criminal prosecutor. In her address to the Council she said: “Mr. Chairman it is obvious to me, as an interested observer of the political and security situation in the Balkans and in the Great Lakes Region, that there is an enormous danger in allowing the rule of law to be undermined. … Impunity fosters political intrigue, profiteering and corruption, widespread criminality, and a culture of violence and terror.”[35] By presenting herself – in an official appearance before the Security Council – as “interested observer” of the political situation, Ms. Del Ponte arrogated to herself a quasi-political role, apparently trying to influence the Security Council in issues of international peace and security. According to Art. 39 of the UN Charter, the determination of threats to the peace is at the discretion of the Council. Because of the provisions of Chapter VII of the Charter, any such determination and any decision about related compulsory measures is the responsibility of the Security Council alone, acting as supreme executive organ of the United Nations. In the exercise of her mandate as Prosecutor, Ms. Del Ponte has constantly obfuscated the border line between international politics and the area of criminal prosecution. In her address to the Security Council, she may also have unintentionally revealed the political pressure under which she acts, when she referred to calls for an expedient processing of indictments: “We cannot be asked to complete soon our indictments and trials of top leaders and, at the same time, be told to be patient and not to rock the boat. This is an obvious contradiction.”[36]

The political dimension of these ad hoc proceedings of criminal law has not only become obvious in the actions of the prosecution, but also of independent judges. In the case of the trial of former President Milošević, the political bias of the presiding judge Robert May has been well documented through repeated live transmissions on television. What has become apparent to independent observers is that Mr. May conducted the sessions more like a public inquisitor than as an independent judge. He acted as a kind of censor of the statements of the indicted former President Milošević and intervened, at the same time, in support of prosecution witnesses. Altogether, very often he appeared playing the role of prosecutor. As Ian Johnson wrote in his report on the trial, “[p]roceedings were taking a predictable course. It didn’t take much insight to grasp the following: A) The witnesses told a well-rehearsed story. B) If the witnesses got into difficulties during the cross-examination the Judge would intervene.”[37]

The Tribunal’s “relaxed” rules of evidence further encourage the arbitrary conduct of proceedings by the judges.[38] The comments on the Tribunal’s rules of evidence, contained in the Tribunal’s First Annual Report (28 July 1994), resemble very much the respective formulations of the Nürnberg and Tokyo war crimes tribunals referred to earlier and reveal a certain arrogance and complacency on the part of those who should be seriously concerned about the application of the highest possible legal standards. Because of the highly controversial matters before the Tribunal, the overall aim should have been that of avoiding the politicization of the proceedings. However, expediency seems to be of greater importance than due process. The Annual Report openly admits that, “as at Nürnberg and Tokyo, there are no technical rules for the admissibility of evidence.”[39] The Report further states: “This Tribunal does not need to shackle itself to restrictive rules which have developed out of the ancient trial-by-jury system. There will be no jury sitting at the Tribunal, needing to be shielded from irrelevancies or given guidance as to the weight of the evidence they have heard.”[40]

In addition to the lack of impartiality, fairness and due process, the legitimacy of ad hoc tribunals is marred by the political selectivity determining their establishment. As it seems, there exists deliberate confusion between the levels of justice and politics. In one case, criminal prosecution is presented as a means towards restoring peace and security, in another case, that same avenue is portrayed as detrimental to that very purpose. Such duplicity is nearly unavoidable when matters of international criminal justice are handled by a political body such as the Security Council.

In the light of the inconsistent practice of the Security Council, the apory as to the basic rationale of universal jurisdiction remains. Is the proper guideline for establishing international criminal tribunals that of “fiat justitia, pereat mundus!” or “fiat justitia ne pereat mundus”? One maxim is the negation of the other. The first principle emphasizes the need that justice be done irrespective of the political consequences; the second stresses the preservation – or restoration – of peace and stability as basic justification for criminal justice. The affirmation of the validity and eventual application of either maxim may depend (a) on the specific political circumstances in a given country and (b) on the constellation of interests in the Security Council. In each specific case, history will finally judge the method chosen by the “international community.” According to the principles of the United Nations, the choice can only be in favour of the second maxim; but more than one initiative of universal jurisdiction since the beginning of the 20th century seems to have pointed into the direction of the first principle. This state of affairs is rather unsatisfactory in philosophical terms. It reveals the rudimentary state of international law – and of our thinking about international law.

By establishing ad hoc tribunals in certain cases and not establishing such courts in other similar cases, the Security Council has introduced an element of arbitrariness and legal anarchy into the system of international relations. The Council may have further discredited the principle of universal jurisdiction by trying to exercise a kind of – albeit indirect – political control over the ad hoc tribunals established through resolutions under Chapter VII. Since the end of the Cold War, the Security Council has dealt with issues of international criminal law in the context of power politics; this is documented in the Council’s handling of the Lockerbie case (having brought about the establishment of a special court in the framework of a national jurisdiction) as well as in the Council’s "judicial" action – or non-action respectively – in major national or international armed conflicts such as those in Rwanda, Cambodia, Sierra Leone, or the former Yugoslavia. Thus, the Council has done a disservice to the international rule of law.

When acting as self-appointed guarantor of justice, indeed as creator of international criminal courts, the Security Council has made the legitimacy problems of international criminal justice even worse. Ad hoc jurisdiction in the framework of the permanent members’ national interests – i.e. of old-fashioned power politics – will not advance the standards of international law enforcement. In such a framework it will not be possible to ensure the independence of the courts and to guarantee the impartiality of criminal proceedings. To the contrary: through the by now well established practice of creating courts of law through Chapter VII resolutions, the Council restrains the exercise of universal jurisdiction – according to political criteria mainly defined by its permanent members – and thereby undermines the universal mission and authority of the International Criminal Court, now in its incipient stage.

ANNEX

(I)

MEMORANDUM
on the Indictment of the President of the Federal Republic of Yugoslavia, the President of the Republic of Serbia and Other Officials of Yugoslavia by 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"

The International Progress Organization would like to refer to its statements of 7 April and 23 April 1999 outlining the grave breaches of the United Nations Charter and of the rules of international humanitarian law through the undeclared war against the Federal Republic of Yugoslavia. The International Progress Organization hereby presents the following legal observations on today's "indictment" by the "International Criminal Tribunal":

1.        The "indictment" issued by the "Chief Prosecutor" of the so-called "International Criminal Tribunal for the Former Yugoslavia" is legally invalid because this "Tribunal" has no jurisdiction whatsoever in the present or any other case.

2.        The "Tribunal" derives its raison d'être exclusively from Security Council resolution 827, adopted at the Council's 3217^th meeting on 25 May 1993. In this resolution, establishing the so-called "International Criminal Tribunal," the Security Council states that it acts "under Chapter VII of the Charter of the United Nations."

3.        When adopting the above resolution, the Security Council acted ultra vires. According to the provisions of the U.N. Charter, the Council has no competence whatsoever in judicial matters. The provisions of Chapter VII determine the Council's competence in matters of international security but not in matters of criminal justice or other judicial matters. The sole authority in international judicial matters rests with the International Court of Justice.

4.        The "determination," in the preamble of Security Council resolution 827, paragraph four, that the "widespread and flagrant violations of international humanitarian law" on the territory of the former Yugoslavia "constitute a threat to international peace and security" does not provide a sound legal basis for the Security Council acting as a surrogate judicial authority or establishing an international court with jurisdiction in this or any other case.

5.        It is regrettable that the institution of the Security Council, while being unable to stop the undeclared war waged by NATO countries against Yugoslavia in violation of international law, and while being prevented, because of the veto power of countries conducting the present war, from restoring international peace and security in Yugoslavia, is now being used to take a so-called "judicial" action against the legitimate Head of State and other high officials of the country under attack.

6.        Under the present circumstances, the move by the "Chief Prosecutor" of the so-called "Tribunal," Ms. Louise Arbour, can only be considered of political nature. This interpretation is confirmed by today's statement of the President of the United States who declared that the "indictment" by the "Tribunal" can be seen as an endorsement of NATO's campaign.

7.        The purely political nature of the "indictment" and the lack of any legal validity of this decision can further be seen from the fact that the "President" of the so-called "Tribunal," Ms. Gabrielle Kirk McDonald (United States of America), the "Chief Prosecutor," Ms. Louise Arbour (Canada), and the investigating "judge" in the present case, Mr. David Anthony Hunt (Australia), are citizens either of NATO member countries directly responsible for the undeclared war against Yugoslavia or of a country fully endorsing the NATO war. If the "Tribunal" would have taken general legal standards of impartiality seriously, it would have been obliged to determine that there is a conflict of interest for "judges" from countries waging an undeclared war against Yugoslavia to sit on such a panel initiating "judicial" action against the Head of State of the country under attack.

8.        The political nature of the "indictment" was further made obvious by the "Chief Prosecutor's" press statement earlier today in which she expressed her view that the "indicted" Head of State cannot be considered a partner of any negotiations about a peaceful settlement of the conflict. Such a statement makes a mockery of whatever legal standards the so-called "Tribunal" claims to adhere to. By her statement, the "Chief Prosecutor" has tried to act as a surrogate politician and to influence political events in the interest of those NATO countries presently waging war against Yugoslavia.

9.        When, in violation of the United Nations Charter, a self-appointed group of states claiming to act on behalf of international peace and human rights, wages an all-out war against a sovereign member state of the United Nations and deliberately destroys the civilian infrastructure of that country with impunity, the present move by functionaries of the so-called "Tribunal" to declare the legitimate leaders of the country under attack as criminals, can only be seen as an act to hamper the international community's efforts to settle the conflict in Yugoslavia by peaceful means. This move undermines all efforts to settle the conflict within the framework of the United Nations and only prolongs the suffering of the people of Yugoslavia including the Kosovar Albanians.

10.    It would be fitting that the so-called "Tribunal"– if it wants, at least, to prove its credibility in terms of basic moral standards, in spite of its legal incompetence as explained above – should also turn its attention to the practices applied by the NATO coalition in its undeclared war against the people of Yugoslavia (including the province of Kosovo). The provisions of Article 3 of the so-called "Tribunal" identify, among others, the following practices as "violations of the laws or customs of war": (a) "employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;" (c) "attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;" etc. NATO's use of depleted uranium missiles and of cluster bombs, NATO's attacks on villages, civilian buses etc. fall clearly within the definition of "violations of the laws or customs of war" as given in the Statute of that very "Tribunal" not to speak of the numerous grave breaches of the Geneva Conventions of 1949 committed by the NATO alliance, for which the "Tribunal" also claims to be competent according to Article 2 of its Statute. As long as the "Tribunal" does not take action against those NATO politicians and military officers responsible for these grave breaches of international humanitarian law, the "Tribunal" can only be considered as one more futile exercise in the political use of judicial procedures within the framework of a "policy of double standards" which seems to be the essence of power politics in NATO's "New World Order."

11.    A dangerous precedent is being created by this new use of judicial procedures for the purposes of power politics. The separation of powers, one of the basic requirements of the rule of law, is being completely neglected when a purely political organ of the United Nations, the Security Council, arrogates to itself judicial powers by establishing an "International Criminal Tribunal," and when the functionaries of this "Tribunal" act as surrogate politicians effectively hindering a political settlement of an international armed conflict. The sole responsibility for whichever judicial matters in international affairs rests with the International Court of Justice. It is this institution alone that decides on the legal questions related to aggression by one state or a coalition of states against another state, and that decides on issues of international humanitarian law.

12.    Because of the regrettable paralysis of the Security Council, the member states of the United Nations as represented in the General Assembly should take immediate action on the basis of the "Uniting for Peace Resolution" (res. 377 A [V] of the General Assembly) in order to prevent a further dangerous deterioration of the situation in Yugoslavia. When otherwise invalid legal procedures are being used to prevent a just political settlement and when the ongoing large-scale bombing of Yugoslavia causes an ecological disaster rendering large areas uninhabitable, urgent action is required by the international community. If this new form of self-righteous power politics is not being checked, similar action may be taken in the time to come against other sovereign countries and their leadership. In this case, the "rule of force" will replace whatever remains of the "rule of law" in international relations. International anarchy will be the inevitable result. All political leaders and people of good will should unite against this most serious threat to the international order since the end of the Cold War.

Caracas, 27 May 1999

Dr. Hans Köchler
President

International Progress Organization

(II)

INTERNATIONAL PROGRESS ORGANIZATION

News Release

Extradition of former Yugoslav President Milošević:

Violation of international law and of the Constitution of the Federal Republic of Yugoslavia

 Vienna, 1 July 2001/P/RE/17210c-is

In an exclusive interview for the German daily Junge Welt (Berlin), the President of the International Progress Organization, Professor Hans Köchler, strongly condemned the extradition of former Yugoslav President Slobodan Milošević to the so-called "International War Crimes Tribunal" in The Hague.

Professor Köchler described the extradition – which was carried out without the knowledge of the President of Yugoslavia and against an express order of the Constitutional Court of Yugoslavia – as an act of piracy committed by NATO forces (in collusion with the administration of Mr. Zoran Djindjić) via the NATO airbase at Tuzla.

By this action, Mr. Djindjić has put himself and his administration not only outside the Constitution of the Federal Republic of Yugoslavia; by “selling” the former Head of State on the eve of the so-called “donors conference” for Yugoslavia he has set an unprecedented act of humiliation of an entire nation. Whether he has committed an act of high treason will have to be judged by the competent authorities of the Federal Republic of Yugoslavia.

The extradition of former President Milošević was not only illegal in terms of the Yugoslav Constitution – insofar as it occurred in violation of a ruling of the Constitutional Court –, it was also illegal in terms of international law because of the violation of the sovereignty of the Federal Republic of Yugoslavia, Professor Köchler explained. The fact that the administration of Mr. Djindjić assisted in this de facto abduction of the former Head of State does not give it even the semblance of legality. An administration that acts in violation of the country’s Constitution and delivers the former Head of State – or any citizen for that matter –, under conditions of economic blackmail, to a coalition of foreign governments (acting under the umbrella of a so-called “International War Crimes Tribunal”) cannot claim constitutional legitimacy for any of its further actions, Professor Köchler explained.

The President of the I.P.O. referred to his earlier Memorandum of 27 May 1999 concerning the illegal indictment of President Milošević by the so-called "International War Crimes Tribunal" in The Hague and reiterated his view that there is no legal basis for the existence of this Tribunal. The respective resolution of the UN Security Council establishing the Tribunal was ultra vires. According to the UN Charter and to general principles of international law, the Security Council as the supreme executive organ of the United Nations has no competence at all in judicial matters including matters of criminal justice.

By the indictment of President Milošević in 1999 and his de facto abduction in 2001 (with the use of NATO infrastructure on the territory of former Yugoslavia), under conditions of economic blackmail of the government of Yugoslavia, the so-called "International War Crimes Tribunal for Former Yugoslavia" has set a dangerous precedent in relations between sovereign states that has to be opposed by all nations. This "Tribunal" is not only lacking legal validity of its actions, it has made the policy of double standards the basic principle of its operation. The “Chief Prosecutor” of the "Tribunal" refuses to deal with the illegality of the war of aggression led by NATO forces against Yugoslavia in 1999 and with the well-documented war crimes and violations of international humanitarian law by NATO forces, having acted on orders of  their commanders and of the political leaders of NATO member countries. By the discriminatory application of legal principles, i. e. by rendering legal immunity to the perpetrators of the war of aggression against Yugoslavia, the "Tribunal" has documented to the entire world that it acts on the basis of power, not of law, and that it engages in the exercise of “victors’ justice." Those powers who control the Security Council – on top of them the United States – do not need to fear the "Tribunal" which has been set up under their control. Such is the predicament of present-day international law that legal principles can only be enforced according to the interests of the powerful members of the self-declared “international community.”

Professor Köchler further emphasized that the “extradition” of former President Milošević occurred under peculiar and scandalous geo-strategic circumstances: The NATO alliance, without the initial approval of the Security Council, had waged a war of aggression against the Federal Republic of Yugoslavia in 1999, had impoverished the country by deliberately destroying the civilian infrastructure and industrial base, and now has been trying to force Yugoslavia into submission by linking the issue of reconstruction aid with the extradition of the former President and other officials of Yugoslavia. In terms of international law, the countries of the NATO alliance are liable for full compensation of Yugoslavia for all damages caused by their illegal war; the political leaders of those countries have to be held accountable – in terms of international law and of their personal criminal responsibility – for their actions.

An “International Criminal Tribunal,” established through an incompetent body of the United Nations system and operating under the de facto control of those who waged the war against Yugoslavia, can never be the proper legal forum to deal with issues of personal criminal responsibility. Because of its structure and the way it was set up, it can only deliver “victors’ justice.” If a court cannot act in a sovereign and independent manner and lacks the legal title of its jurisdiction, it will only render disservice to the international rule of law and should be disbanded, Professor Köchler explained.

In the absence of a division of powers – the basic requirement of the rule of law – in the present system of international law, issues of personal criminal responsibility of the citizens of Yugoslavia, including the former President and other governmental leaders and officials, can only be dealt with by the judicial authorities of Yugoslavia. A government that delivers its officials under duress (i.e. under conditions of economic blackmail) to a coalition of foreign governments cannot claim legitimacy vis-à-vis the people subjected to its rule. An ad hoc tribunal (court) set up by the victors of a conflict can never be the basis for legal action against the officials of the country that is the victim of the aggression.

The President of the I.P.O. stated that those UN member states that still believe in the principles of the UN Charter, first and foremost the principle of the sovereign equality of nations, should unite in the UN General Assembly and call for the disbanding of the ad hoc tribunals set up by the Security Council in violation of the UN Charter. The future of international law, including international criminal law, will be determined by the stand taken by United Nations member states on issues of national jurisdiction and sovereignty. If they accept the illegal extradition of the former President of Yugoslavia as fait accompli, there will be no legal counter-arguments in the future when a country is forced to deliver its leader to a coalition of powerful states – as long as this coalition manages to set up a structure with a semblance of legality and United Nations backing, even if derived from decisions adopted ultra vires as in the present case. This is the reason why the majority of UN member states should not allow the NATO coalition against Yugoslavia to set a precedent in terms of international law and to carry out acts of “abduction” unchallenged, Professor Köchler concluded. 

© by Hans Köchler, 2005