The Yugoslav Tribunal and Deferral of
National Prosecutions of War Criminals
--Dorothea Beane is a Professor of Law at Stetson University College of Law, St. Petersburg, Florida, and former Visiting Professor at Washington and Lee University, Lexington, Virginia. She was a former Trial Attorney in the Torts Branch, Civil Division, U. S. Department of Justice and a former Assistant United States Attorney for the Middle District of Florida, Jacksonville Division.
The establishment of the Tribunal does not divest national courts throughout the international community of power to prosecute persons accused of violations of international humanitarian law. The International Criminal Tribunal for the Former Yugoslavia and national courts have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law in the former Yugoslavia since 1991. But while concurrent jurisdiction exists, the International Tribunal has primacy over national courts as provided in Article 9(2) of the Tribunal's Statute:
The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.
The Rules of Procedure and Evidence adopted by the Tribunal establish the relationship between the Tribunal and national courts while proceedings before the latter are still active. Rule 8 indicates that "where it appears to the Prosecutor that a crime within the jurisdiction of the Tribunal is or has been the subject of investigations or criminal proceedings instituted by the courts of any State, he may request the State to forward to him all relevant information in that respect." The state is thereafter obligated to transmit the information "forthwith in accordance with Article 29 of the Statute."
Rule 9 sets out three instances in which a Prosecutor of the Tribunal may propose that the Trial Chamber of the Tribunal make a formal request that a state defer an investigation or proceeding currently underway in a national court to the competence of the tribunal. First, Rule 9 (i) authorizes the request for deferral when it appears that in any such state investigation or criminal proceeding "the act being investigated or which is the subject of those proceedings is characterized as an ordinary crime." The Secretary-General of the United Nations explained that this provision means where "the characterization of the act by the national courts did not correspond to its characterization under the Tribunal Statute." Second, Rule 9 (ii) allows a deferral request if the investigation demonstrates "a lack of impartiality or independence, or the investigations or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted." Finally, Rule 9 (iii) states the Prosecutor may request deferral if "what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal." The purpose of Rule 9 is twofold: to insure that national trials of accused war criminals are not sham proceedings, and to enable the Tribunal to perform its duties in certain cases when transfer to the Tribunal would be beneficial because of the factual or legal issues involved.
After the initial request for deferral by the Prosecutor is accepted by the Trial Chamber, the designated Trial Chamber issues its formal request for deferral to the appropriate national or domestic court pursuant to Rule 10(A). The matters included in the formal request are outlined in Rule 10(B) and include "a request that the results of the investigation and a copy of the court's records and the judgement, if already delivered, be forwarded to the Tribunal." In the event a state refuses to comply with a request for deferral, the consequences are expressed in Rule 11: "If, within sixty days after a request for deferral has been notified by the Registrar to the State under whose jurisdiction the investigations or criminal proceedings have been instituted, the State fails to file a response which satisfies the Trial Chamber that the State has taken adequate steps to comply with the order, the Trial Chamber may request the President [of the Tribunal] to report the matter to the Security Council." The member states of the UN are required to comply with the requests of the Tribunal, no matter what the stage of proceedings before a domestic or national court, pursuant to Security Council Resolution 827, adopted May 25, 1993. Additionally, under Article 10 (2) of the Statute, the Tribunal may retry an individual who has already been tried and sentenced by the national courts if the reasons expressed in Rule 9 (i) or (ii) are met. There are no specific standards adopted by the Tribunal describing the circumstances that trigger application of Rule 9 (i) or (ii) when an individual has already been tried; however, suggested guidelines for the conduct of national trials have been proposed by nongovernmental organizations.
Suggested Guidelines for Conducting National Trials of War Criminals: Assessing the Need for Deferral to the Competence of the International Criminal Tribunal at the Hague
The Lawyers Committee for Human Rights in its 1995 report, Prosecuting War Crimes in the Former Yugoslavia: The International Tribunal, National Courts and Concurrent Jurisdiction, suggested "guidelines according to which national war crimes trials should be carried out in order to assess whether there are reasons for deferral to the competence of the Tribunal or for the retrial of the case by the Tribunal." The Lawyers Committee implied that in large part whether a domestic trial meets international standards of what constitutes a fair trial will depend in many cases on how closely the national Codes of Criminal Procedure are followed. However, some criminal codes do not grant the accused the scope of rights provided by international human rights instruments, even when strictly and diligently applied. Therefore, as the Lawyers Committee points out, "As a backup and in order to prevent egregious violations of a defendant's rights despite adherence to the letter of the codes, international standards (for example the International Covenant for Civil and Political Rights) should be used to assess fairness of trials conducted before domestic courts." Thus, the Lawyers Committee's proposed guidelines suggest ways in which proceedings in national courts should be conducted in order to prevent triggering of Rule 9(i) and (ii).
The guidelines suggested by the Lawyer's Committee include the following: a fair hearing, a public hearing, an independent tribunal, an impartial tribunal, the right to a remedy, the right to humane treatment during arrest and detention, notice, the right to counsel, adequate time and facilities for the preparation of defense, the right to an interpreter, the right to trial without undue delay, and other rights during a trial. With respect to these guarantees, certain allowances may be made to further national security, counter the effects of prejudice or avoid compromise in the attainment of justice. For example, whether a hearing or trial should be closed to the public in any given instance would depend on the validity of the reasons given, as when the interest of private parties such as minors are at stake. If a decision to close a trial or hearing to the public is made, the decision should be substantiated and made public. Additionally, a court's independence would be challenged depending upon its relationship to the executive branch, which may only intervene in the judicial process in the mitigation or commutation of sentences. Impartiality of a national court requires that decisions of the court be based only on the arguments and evidence before it, and that the tribunal must not be influenced by improper threats, influence or pressure from outside forces. If these principles are not guaranteed in a national investigation, prosecution or sentencing, the prosecutor should seek deferral to the competence of the International Criminal Tribunal. This also means that both the prosecutor and defense should have equal time to present evidence, prosecution and defense witnesses should be accorded equal treatment, and evidence obtained by means that would constitute a violation of international human rights law should not be used against an accused.
As for the application of Rule 9(iii), that is, deferral where the matter at issue is closely related to a matter before the Tribunal or involves significant factual or legal questions that have implications for matters before the Tribunal, the rule requires a fact-intensive determination. That cannot be known in advance. Illustrative are two requests for deferral the Prosecutor of the Tribunal has already made under Rule 9 (iii).
Deferral of the Investigations and Prosecutions of Drazen Erdemovic and Dusko Tadic
The Prosecutor, Richard Goldstone, applied on May 14, 1996, to the Trial Chamber for deferral by the Federal Republic of Yugoslavia of all investigations and criminal proceedings concerning Drazen Erdemovic. Goldstone requested that the results and copies of court records and judgments be forwarded to the Tribunal. According to the application of the Prosecutor, national investigations and criminal proceedings had been instituted against Erdemovic by the Federal Republic of Yugoslavia for war crimes against civilians alleged to have taken place in Srebrenica in July 1995. The International Tribunal had issued an indictment against Erdemovic and against Radovan Karadzic, the Bosnian-Serb leader, and Ratko Mladic, the military commander of the Bosnian-Serb forces, for these crimes. The investigation of Erdemovic in the national proceeding was being conducted by Investigative Judge Tomislav Vojnovic of the District Court in Novi Sad, Miodrag Mali. At the same time, Goldstone was investigating serious violations of international humanitarian law (as set forth in Articles 2 to 5 of the Statute of the Tribunal) that occurred in relation to the events surrounding the takeover of the UN "safe-area" in Srebrenica in July 1995. The allegations investigated by Goldstone included offenses such as murder and mutilation against civilian Muslims. On November 16, 1995, an indictment against Karadzic and Mladic was con-firmed by Judge Fouad Riad of the International Criminal Tribunal in relation to the same serious violations of international humanitarian law committed during and after the takeover of Srebrenica. This indictment served as support for the Prosecutor's application for deferral under Rule 9 (iii). Thus, the Prosecutor argued that the investigation and ultimate prosecution of Erdemovic would involve issues closely related to, or similar factual or legal questions that may have implications for, proceedings already before the Tribunal.
The additional indictment of Erdemovic by the Tribunal on May 22, 1996, also charged him with crimes against humanity or alternatively a violation of the laws and customs of war. The indictment alleged that on July 16, 1995, Erdemovic participated in the shooting and killing of unarmed Bosnian Muslim men at a collective farm in Pilica, a territory under the subject matter and temporal jurisdiction of the International Criminal Tribunal.
In order to fortify his argument the Prosecutor pointed out several considerations. First, there was the practical concern of the Prosecutor that if the Federal Republic of Yugoslavia continued its investigations similar to those being conducted by the Prosecutor, there could be confusion among witnesses and cooperating organizations or governments concerning the scope and authority of the different investigations, and different rules and confidentiality protections would govern both investigations. Also, there may be created an undue burden on witnesses who were interviewed on several occasions, and a danger that those witnesses who have suffered emotional trauma or are in physical danger as a result of their cooperation will be unwilling to take part in multiple investigations. The Prosecutor was also mindful of potential credibility problems with witnesses, which may be created as a result of witnesses being interviewed on multiple occasions, under different circumstances, and possibly in different languages. Finally, there is a potential for evidentiary problems to arise as a result of differing procedures regarding the collection and preservation of evidence and the taking of statements and questioning of suspects. Moreover, since the Tribunal was not a party to the armed conflict, the Tribunal was in a better position to obtain cooperation from witnesses and to collect evidence.
Additionally, argued the Prosecutor, there were significant legal considerations favoring deferral to the competence of the Tribunal in the case of Erdemovic. First, if Erdemovic was tried in the Federal Republic of Yugoslavia, the principle of non bis in idem discussed above might have prevented the Tribunal from prosecuting him for the same acts that constitute serious violations of international humanitarian law. If that principle did not apply, witnesses who are forced to testify in both trials may be exposed to greater risk as a result of their identities becoming public, as well as to inconvenience. The risk of creating inconsistent sworn evidence would be of predominant concern to the Prosecutor, given the multiple prosecutions slated for the future. The Prosecutor vigorously argued and the Trial Chamber ultimately concluded that the interests of justice would be undermined if the Federal Republic of Yugoslavia and the Tribunal reached inconsistent conclusions in regard to the same factual and legal issues. Since deferral and indictment, Drazen Erdemovic has pled guilty to charges lodged by the International Criminal Tribunal and is awaiting sentencing.
In November 1994, a request for deferral pursuant to Rule 9 (iii) was also made by the Prosecutor in the case of Dusko Tadic, the first defendant actually tried by the Tribunal. Goldstone requested that the Federal Republic of Germany forward to the Tribunal all relevant information regarding its investigations of Tadic concerning violations of international humanitarian law, pursuant to Rule 8. Aware of an overlap in the charges Tadic faced in Germany and in the Tribunal, the Tribunal made a formal request that German authorities defer their investigation and prosecution of Tadic. German authorities displayed a willingness to cooperate and defer the case to the Tribunal, but they argued initially that they required implementing legislation from their national legislative body before deferral could be authorized. The German parliament enacted necessary implementing legislation on March 31, 1995, and Tadic was subsequently indicted by the Tribunal.
Dusko Tadic challenged the power and authority to defer his prosecution pursuant to Rule 9 (iii). Tadic filed three preliminary motions prior to his trial, which began in May 1996. One of these preliminary motions sought to dismiss his indictment and avoid trial, arguing that the International Criminal Tribunal for the Former Yugoslavia lacked jurisdiction under the principle of non bis in idem. Under Article 10 (2) of the Tribunal's Statute, the Tribunal may retry an individual who has already been tried and sentenced by a national court only if the reasons expressed in Rule 9 (i) or (ii) are met. In support of his motion, Tadic argued that proceedings against him had already been initiated in Germany and his case should have remained in Germany for final disposition. However, in response, the Prosecutor successfully argued that while an indictment had been issued against Tadic and he was in the midst of trial, judgment had not been entered and no sentence was pronounced, and therefore no jeopardy had attached divesting the Tribunal of jurisdiction, and secondarily that the provisions of Rule 9 (iii) applied since Tadic had been indicted by the Tribunal for many of the same offenses charged by Germany.
Without the cooperation of the international community and particularly the member States of the United Nations, the procedure outlined by the Statute of the Tribunal and the Rules of Procedure would obviously have little meaning. As of February 1996 the following States have adopted legislation to implement the deferral process set out in the Tribunal's Statute and Rules of Procedure: Finland, France, Italy, the Netherlands, Norway, Spain, Sweden, Turkey and the United States. The following States have implementing legislation under consideration: Belgium and Croatia. However, the following States say that they do not need to submit new legislation to cooperate with a request for deferral: Korea, Singapore and Venezuela.
The use of Article 10 of the Statute of the Tribunal and Rules 9 through 11 of the Rules of Procedure and Evidence for the deferral of national criminal prosecutions for war crimes to the competence of the International Criminal Tribunal is key to the effective operation of the International Criminal Tribunal. Proposed guidelines have been suggested by the Lawyer's Committee for Human Rights for the conduct of national trials and for proper assessment of the need for deferral to the competence of the International Criminal Tribunal. Rule 9 (iii) has already been successfully used in two significant applications regarding deferral to the competence of the Tribunal, when national investigations or proceedings in the Federal Republics of Yugoslavia and Germany involved issues closely related to, or which involved similar factual or legal questions that may have implications for, proceedings already before the Tribunal. Of continued vital importance to the effective operation of the Tribunal will be the cooperation of States throughout the international community in relinquishing some of their sovereignty to the Tribunal, especially if there is to be any hope of prosecuting Radovan Karadzic and Ratko Mladic.
Beane and Heffernan, The International Tribunal for the Former Yugoslavia: A Progress Report, The Irish Law Times, Dublin, Ireland, (Expected Publication October/November 1996).
Defense Motions of Dusko Tadic, Case No. IT-94-I-T, June 23, 1995.
Deferral Application Submitted by the Prosecutor, Richard Goldstone, of Drazen Erdemovic, Case IT-96-22-D, May 14, 1996.
Kirgis, Jr., Frederic L., Enforcing International Law, ASIL Insight, No 10 (1996).
Lawyers Committee for Human Rights, Developments in National Courts, (http://www.his.com/-cij/elsewhere.html, 8/9/96).
O'Brien, James, The International Criminal Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 Am.J.Int'l L. 639 (1993).
Prosecutor's Response to the Defense Motions Filed on June 23, 1995, by Dusko Tadic, Case No. IT-94-I-T, July 7, 1995.
Report from the Lawyers Committee for Human Rights, Prosecuting War Crimes in the Former Yugoslavia: The International Tribunal, National Courts and Concurrent Jurisdiction/A Guide to Applicable International Law, National Legislation and its Relation to International Human Rights Standards (May 1995).
Rules of Procedure and Evidence adopted by the International Tribunal for the Former Yugoslavia, as amended, IT/32/Rev.8, April 23, 1996.
The Statute of the International Criminal Tribunal for the Former Yugoslavia [32 I.L.M. 1192 (1993)] and the Secretary-General's Commentaries contained in the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) [32 I.L.M. 1159 (1993)].
United Nations, Security Council, Resolution 827 (1993), establishing 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, UN Doc. S/RES/827 (1993), May 25, 1993.