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

 

The text of the United Nation's paper in which the UN 
General-Secretary sets out his reasons for believing the 
ICTY was set up on a proper legal basis is set out below.

As you will see, Boutros Boutros-Ghali was originally in nodoubt that there were only two ways in which an 
international criminal tribunal could be created by the UN under its Charter - by a decision of the General Assembly 
or by the creation of an international Treaty.  

He apparently changed his view, in the light of the claimedhumanitarian emergency in Yugoslavia, on the basis of 
emergency powers given to the Security Council in Chapter 
VII of the UN Charter.  

There are two problems with this:  (i) these powers relate exclusively to international conflict, whereas all the 
conflicts in Yugoslavia were civil wars.  The UN has no mandate to involve itself in the internal affairs of a sovereign country;  (ii) the only precedent the General-Secretary could offer in support of the use of these powers was the 
invasion of Kuwait by Iraq in 1990.  This was of course an international conflict.


The UN has attempted to argue that the unilateral 
declarations of independence by Slovenia, Croatia, Bosnia
and Kosovo had turned the various Yugoslav conflicts into 
international conflicts, particularly when they had been 
recognised as new states by other countries. This is 
nonsense. None of these aspiring states met the essential conditions laid down for the recognition of new countries inthe Helsinki Final Acts, the treaty of Montevideo and otherinternational legislation. And there had been no 
'invasions' by Serb forces.  The fighting was between 
Yugoslavs.  The UN was in flagrant breach of its own 
Charter and established international law.

A further point is that the powers in Chapter VII only 
apply when there is a threat to international peace and 
security.  Although the UN has sometimes suggested that 
there was, it's quite clear that there wasn't.

We now know that the claims of humanitarian catastrophe 
were highly exaggerated. Suggestions that 250,000 Bosnian 
Muslims had been killed in the first 6 months of fighting 
have reduced to 100,000 on all sides during the entire 
Bosnian war.   US claims that 500,000 might have died in 
Kosovo reduced to a figure just under 4,000. 
Boutros-Ghali rationalised that his Chapter VII solution 
"would have the advantage of being expeditious" - it 
certainly wasn't legal.
                                                  S/25704
                                                  3 May 1993
                                                  ORIGINAL:  ENGLISH
REPORT OF THE SECRETARY-GENERAL PURSUANT TO PARAGRAPH 2
       OF SECURITY COUNCIL RESOLUTION 808 (1993)

CONTENTS

Introduction ...............................................
  I.  THE LEGAL BASIS FOR THE ESTABLISHMENT OF THE
      INTERNATIONAL TRIBUNAL ............................... 
II.  COMPETENCE OF THE INTERNATIONAL TRIBUNAL .............      A.  Competence ratione materiae (subject-matter
          jurisdiction) ....................................      B.  Competence ratione personae (personal jurisdiction)
          and individual criminal responsibility ...........      C.  Competence ratione loci (territorial jurisdiction)
          and ratione temporis (temporal jurisdiction) .....      D.  Concurrent jurisdiction and the principle of
          non-bis-in-idem ..................................



III.  THE
      A.  The Chambers .....................................
ORGANIZATION OF THE INTERNATIONAL TRIBUNAL .......

1. 2. 3. 4.

Composition of the Chambers ..................
Qualifications and election of judges ........
Officers and members of the Chambers .........
Rules of procedure and evidence ..............
S/25704
English
Page 2

     B.  The Prosecutor ...................................
     C.  The Registry .....................................
  1. IV.   INVESTIGATION AND PRE-TRIAL PROCEEDINGS .............
    
  2.  V.   TRIAL AND POST-TRIAL PROCEEDINGS ....................
         
    A.  Commencement and conduct of trial proceedings ....
    

 

      B.  Rights of the accused ............................  106 - 107    27
      C.  Protection of victims and witnesses ..............  108 - 109    28
      D.  Judgement and penalties ..........................  110 - 115    28
      E.  Appellate and review proceedings .................  116 - 120    29
      F.  Enforcement of sentences .........................  121 - 124    30


VI. COOPERATION AND JUDICIAL ASSISTANCE .................. 125 - 127 31 VII. GENERAL PROVISIONS ................................... 128 - 138 

32A. The status, privileges and immunities of the
International Tribunal ........................... 

      B.  Seat of the International Tribunal ...............  131 - 132    33
      C.  Financial arrangements ...........................  133 - 134    33
      D.  Working languages ................................  135 - 136    34
      E.  Annual report ....................................  137 - 138    34


Annex.  Statute of the International Tribunal .............Introduction
1.   By paragraph 1 of resolution 808 (1993) of 22 February 1993, the Security Council decided "that an international tribunal shall be established for the
prosecution of persons responsible for serious violations international humanitarian law committed in the territory ofthe former Yugoslavia since 1991".

2.   By paragraph 2 of the resolution, the Secretary-General was requested "to submit for consideration by the Councilat the earliest possible date, and if possible no later 
than 60 days after the adoption of the present resolution, a report on all aspects of this matter, including specific proposals and where appropriate options for the effective 
and expeditious implementation of the decision [to 
establish an international tribunal], taking into account
suggestions put forward in this regard by Member States."

3.    The present report is presented pursuant to that request.   Resolution 808 (1993) represents a further step 
taken by the Security Council in a series of resolutions concerning serious violations of international humanitarian 
law occurring in the territory of the former
Yugoslavia.

5.   In resolution 764 (1992) of 13 July 1992, the SecurityCouncil reaffirmed that all parties to the conflict are 
bound to comply with their obligations under international humanitarian law and in particular the Geneva Conventions 
of 12 August 1949, and that persons who commit or order thecommission of grave breaches of the Conventions are 
individually responsible in respect of such breaches.

6.   In resolution 771 (1992) of 13 August 1992, the 
Security Council expressed grave alarm at continuing 
reports of widespread violations of international
humanitarian law occurring within the territory of the 
former Yugoslavia and especially in Bosnia and Herzegovina,including reports of mass forcible expulsion and 
deportation of civilians, imprisonment and abuse of 
civilians in detention centres, deliberate attacks on 
non-combatants, hospitals and ambulances, impeding the 
delivery of food and medical supplies to the civilian
population, and wanton devastation and destruction of 
property.  The Council strongly condemned any violations ofinternational humanitarian law, including those involved inthe practice of "ethnic cleansing", and demanded that all
parties to the conflict in the former Yugoslavia cease and desist from all breaches of international humanitarian law.It called upon States and international humanitarian 
organizations to collate substantiated information
relating to the violations of humanitarian law, including grave breaches of the Geneva Conventions, being committed inthe territory of the former Yugoslavia and to make this 
information available to the Council.  Furthermore, the 
Council decided, acting under Chapter VII of the Charter ofthe United Nations, that all parties and others concerned 
in the former Yugoslavia, and all military forces in Bosniaand Herzegovina, should comply with the provisions of that resolution, failing which the Council would need to take 
further measures under the Charter.

7.   In resolution 780 (1992) of 6 October 1992, the Security Council requested the Secretary-General to establish an impartial Commission of Experts to examine and analyse the information as requested by resolution 771 (1992), togetherwith such further information as the Commission may obtain through its own investigations or efforts, of other personsor bodies pursuant to resolution 771 (1992), with a view toproviding the Secretary-General with its conclusions on theevidence of grave breaches of the Geneva Conventions and 
other violations of international humanitarian law 
committed in the territory of the former Yugoslavia.
8.   On 14 October 1992 the Secretary-General submitted a 
report to the Security Council pursuant to paragraph 3 of 
resolution 780 (1992) in which he outlined his decision to establish a five-member Commission of Experts (S/24657).  
On 26 October 1992, the Secretary-General announced the 
appointment of the Chairman and members of the Commission 
of Experts.
9.   By a letter dated 9 February 1993, the 
Secretary-General submitted to the President of the 
Security Council an interim report of the Commission of 
Experts(S/25274), which concluded that grave breaches and other violations of international humanitarian law had been committed in the territory of the former Yugoslavia, 
including wilful killing, "ethnic cleansing", mass 
killings,torture, rape, pillage and destruction of civilianproperty, destruction of cultural and religious property 
and arbitrary arrests.  In its report, the Commission notedthat should the Security Council or another competent organof the United Nations decide to establish an ad hoc international tribunal, such a decision would be consistent with 
the direction of its work.
10.  It was against this background that the Security Council considered and adopted resolution 808 (1993).  After 
recalling the provisions of resolutions 764 (1992), 771 
(1992) and 780 (1992) and, taking into consideration the 
interim report of the Commission of Experts, the Security 
Council expressed once again its grave alarm at continuing reports of widespread violations of international
humanitarian law occurring within the territory of the 
former Yugoslavia, including reports of mass killings and 
the continuation of the practice of "ethnic cleansing".  
The Council determined that this situation constituted a
threat to international peace and security, and stated thatit was determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.  The Security Council stated its
conviction that in the particular circumstances of the 
former Yugoslavia the establishment of an international 
tribunal would enable this aim to be achieved and would 
contribute to the restoration and maintenance of peace.
11.  The Secretary-General wishes to recall that in resolution 820 (1993) of 17 April 1993, the Security Council 
condemned once again all violations of international 
humanitarian law, including in particular, the practice of "ethnic cleansing" and the massive, organized and 
systematic detention and rape of women, and reaffirmed thatthose who commit or have committed or order or have
ordered the commission of such acts will be held
individually responsible in respect of such acts.

 

B

12.  The Security Council’s decision in resolution 808 
(1993) to establish an international tribunal is 
circumscribed in scope and purpose:  the prosecutionof 
persons responsible for serious violations of internationalhumanitarian law committed in the territory of the former 
Yugoslavia since 1991.  The decision does not relate to theestablishment of an international criminal jurisdiction
in general nor to the creation of an international criminalcourt of a permanent nature, issues which are and remain 
under active consideration by the International Law 
Commission and the General Assembly.

C

13.  In accordance with the request of the Security 
Council, the Secretary-General has taken into account in 
the preparation of the present report the suggestions put 
forward by Member States, in particular those reflected in the following Security Council documents submitted by 
Member States and noted by the Council in its resolution 
808 (1993):  the report of the committee of jurists
submitted by France (S/25266), the report of the commissionof jurists submitted by Italy (S/25300), and the report 
submitted by the Permanent Representative of Sweden on 
behalf of the Chairman-in-Office of the Conference on 
Security and Cooperation in Europe (CSCE) (S/25307).  The 
Secretary-General has also sought the views of the 
Commission of Experts established pursuant to Security 
Council resolution 780 (1992) and has made use of the 
information gathered by that Commission.  In addition, the Secretary-General has taken into account suggestions or 
comments put forward formally or informally by the 
following Member States since the adoption of resolution 
808 (1993):  Australia, Austria,Belgium, Brazil, Canada, 
Chile, China, Denmark, Egypt,* Germany, Iran (Islamic
Republic of),* Ireland, Italy, Malaysia,* Mexico, 
Netherlands, New Zealand, Pakistan,* Portugal, 
Russian Federation, Saudi Arabia,* Senegal,* Slovenia,
Spain, Sweden, Turkey,* United Kingdom of Great Britain andNorthern Ireland, United States of America and Yugoslavia. He has also received suggestions or comments from a non-member State (Switzerland).
14.  The Secretary-General has also received comments from the International Committee of the Red Cross (ICRC) and 
from the following non-governmental organizations:   
Amnesty International, Association Internationale des 
Jeunes Avocats, Ethnic Minorities Barristers’ Association, Fédération internationale des femmes des carrières 
juridiques, International Criminal Police Organization,
Jacob Blaustein Institution for the Advancement of Human 
Rights, Lawyers Committee for Human Rights, National 
Alliance of Women’s Organisations (NAWO),and 
Parliamentarians for Global Action.  Observations have alsobeen receivedfrom international meetings and individual 
experts in relevant fields.

__________

* On behalf of the members of the Organization of the Islamic Conference (OIC) and as members of the Contact Group of OIC on Bosnia and Herzegovina.

15.  The Secretary-General wishes to place on record his 
appreciation for the interest shown by all the Governments,organizations and individuals who have offered valuable 
suggestions and comments.

D

16.  In the main body of the report which follows, the 
Secretary-General first examines the legal basis for the 
establishment of the International Tribunal foreseen in 
resolution 808 (1993).  The Secretary-General then sets outin detail the competence of the International Tribunal as 
regards the law it will apply, the persons to whom the law will be applied, including considerations as to the 
principle of individual criminal responsibility, its 
territorial and temporal reach and the relation of its workto that of national courts.  In succeeding chapters, the 
Secretary-General sets out detailed views on the 
organization of the international tribunal, the 
investigation and pre-trial proceedings, trial and 
post-trial proceedings, and cooperation and judicial
assistance.  A concluding chapter deals with a number of 
general and organizational issues such as privileges and immunities, the seat of the international tribunal, working 
languages and financial arrangements.
17.  In response to the Security Council’s request to 
include in the report specific proposals, the 
Secretary-General has decided to incorporate into the
report specific language for inclusion in a statute of the International Tribunal.  The formulations are based upon 
provisions found in existing international instruments, 
particularly with regard to competence ratione materiae of the International Tribunal.  Suggestions and comments, 
including suggested draft articles, received from States, 
organizations and individuals as noted in paragraphs 13 and14 above, also formed the basis upon which the
Secretary-General prepared the statute.  Texts prepared in the past by United Nations or other bodies for the 
establishment of international criminal courts
were consulted by the Secretary-General, including texts 
prepared by the United
Nations Committee on International Criminal Jurisdiction, 
the International Law Commission, and the International LawAssociation.  Proposals regarding individual articles are, therefore, made throughout the body of the report; the
full text of the statute of the International Tribunal is 
contained in the annex to the present report.
          I.  THE LEGAL BASIS FOR THE ESTABLISHMENT OF THE INTERNATIONAL
              TRIBUNAL

18.  Security Council resolution 808 (1993) states that an international tribunal shall be established for the 
prosecution of persons responsible for serious violations 
of international humanitarian law committed in the 
territory of the former Yugoslavia since 1991.  It does 
not, however, indicate how such an international tribunal is to be established or on what 
legal basis.

19.  The approach which, in the normal course of events, 
would be followed in establishing an international tribunalwould be the conclusion of a treaty by which the States 
parties would establish a tribunal and approve its statute.
This treaty would be drawn up and adopted by an appropriateinternational body (e.g., the General Assembly or a 
specially convened conference), following which it would beopened for signature and ratification.  Such an approach 
would have the advantage of allowing for a detailed 
examination and elaboration of all the issues pertaining tothe establishment of the international tribunal.  It also
would allow the States participating in the negotiation andconclusion of the treaty fully to exercise their sovereign will, in particular whether they wish to become parties to the treaty or not.

20.  As has been pointed out in many of the comments 
received, the treaty approach incurs the disadvantage of 
requiring considerable time to establish an instrument and then to achieve the required number of ratifications for 
entry into force.  Even then, there could be no guarantee 
that ratifications will be received from those States whichshould be parties to the treaty if it is to be truly 
effective.

21.  A number of suggestions have been put forward to the 
effect that the General Assembly, as the most 
representative organ of the United Nations, should have a 
role in the establishment of the international tribunal in addition to its role in the administrative and budgetary 
aspects of the question.  The involvement of the General 
Assembly in the drafting or the review of the statute
of the International Tribunal would not be reconcilable 
with the urgency expressed by the Security Council in 
resolution 808 (1993).  The Secretary-General believes thatthere are other ways of involving the authority and
prestige of the General Assembly in the establishment of 
the International Tribunal.

22.  In the light of the disadvantages of the treaty 
approach in this particular case and of the need indicated in resolution 808 (1993) for an effective and expeditious 
implementation of the decision to establish an 
international tribunal, the Secretary-General believes thatthe International Tribunal should be established by a 
decision of the Security Council on the basis of Chapter 
VII of the Charter of the United Nations.  Such a decision would constitute a measure to maintain or restore 
international peace and security, following the
requisite determination of the existence of a threat to thepeace, breach of the peace or act of aggression.

23.  This approach would have the advantage of being 
expeditious and of being immediately effective as all 
States would be under a binding obligation to take whatever actionis required to carry out a decision taken as an enforcement
measure under Chapter VII.

24.  In the particular case of the former Yugoslavia, the 
Secretary-General believes that the establishment of the 
International Tribunal by means of a Chapter VII decision 
would be legally justified, both in terms of the object and
purpose of the decision, as indicated in the preceding 
paragraphs, and of past Security Council practice.

25.  As indicated in paragraph 10 above, the Security 
Council has already determined that the situation posed by continuing reports of widespread violations of 
international humanitarian law occurring in the former 
Yugoslavia constitutes a threat to international peace and security.  The Council has also decided under Chapter VII 
of the Charter that all parties and others concerned
in the former Yugoslavia, and all military forces in Bosniaand Herzegovina, shall comply with the provisions of resolution 771 (1992), failing which it would need to take 
further measures under the Charter.  Furthermore, the 
Council has repeatedly reaffirmed that all parties in the 
former Yugoslavia are bound to comply with the obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the 
Conventions are individually responsible in respect of suchbreaches.

26.  Finally, the Security Council stated in resolution 808(1993) that it was convinced that in the particular 
circumstances of the former Yugoslavia, the establishment 
of an international tribunal would bring about the 
achievement of the aim of putting an end to such crimes andof taking effective measures to bring to justice the 
persons responsible for them, and would contribute to the
restoration and maintenance of peace.

27.  The Security Council has on various occasions adopted decisions under Chapter VII aimed at restoring and maintaining international peace and security, which have involved 
the establishment of subsidiary organs for a variety of
purposes.  Reference may be made in this regard to SecurityCouncil resolution 687 (1991) and subsequent resolutions 
relating to the situation between Iraq and Kuwait.

28.  In this particular case, the Security Council would beestablishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the 
Charter, but one of a judicial nature.  This organ would, 
of course, have to perform its functions independently of 
political considerations; it would not be subject to the 
authority or control of the Security Council with regard tothe performance of its judicial functions.  As an 
enforcement measure under Chapter VII, however, the life 
span of the international tribunal would be linked to the 
restoration and maintenance of international peace and 
security in the territory of the former Yugoslavia, and 
Security Council decisions related thereto.

29.  It should be pointed out that, in assigning to the 
International Tribunal the task of prosecuting persons 
responsible for serious violations of international 
humanitarian law, the Security Council would not be 
creating or purporting to "legislate" that law.  Rather, 
the International Tribunal would have the task of applying existing international humanitarian law.

30.  On the basis of the foregoing considerations, the 
Secretary-General proposes that the Security Council, 
acting under Chapter VII of the Charter, establish the 
International Tribunal.  The resolution so adopted would 
have annexed to it a statute the opening passage of which 
would read as follows:

          Having been established by the Security Council 
acting under Chapter VII of the Charter of the United 
Nations, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of InternationalHumanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 (hereinafter referred to as "the 
International Tribunal") shall function in accordance with the provisions of the present Statute.