One may call it truly amazing that the international community, acting through the Security Council, has been able to set up two international criminal jurisdictions in the recent past. 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 was established by Security Council Resolution 827 of May 25, 1993¹. The International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1. January 1994 and 31. December 1994, came into being by virtue of Security Council Resolution 955 of November 8, 1994².

Since the trials of Nuremberg and Tokyo³, this is the first attempt by the international community to prosecute the authors of atrocious crimes that shock the conscience of humankind and seem to roll back to square one the concept of international protection of human rights. Indeed, the Nuremberg and Tokyo trials represent a great leap forward after the horrors of World War II; namely, that no one should be left totally abandoned to the vagaries of his or her government and that, at least in situations where basic rights are infringed systematically and on a vast scale by power wielders, the international community will not stand idle by, restrained by the traditional rule of nonintervention from taking remedial action.

Over the years, the United Nations has gradually put in place machinery for the protection of human rights that has achieved a high degree of sophistication. In terms of actual effectiveness, however, this elaborate system is fairly weak. It is based on admonition and reprobation, presupposing that the government concerned is eager to keep its good international reputation and will thus do its best to refrain from actions that may provoke massive international criticism. However, when irrationality erupts and all considerations of humanity are brushed aside in power struggles, which may be nurtured by age-old hatreds, internationally recognized moral values may be not only forgotten but even deliberately ignored. In such cases, the international community, in order to remain credible, should have recourse to other means besides censure.

Of course, prevention is always the best course. From an international law perspective, the precedents set in Somalia⁴ and Haiti⁵ under the authority of chapter VII of the UN Charter have cleared the way for UN intervention in civil wars. Yet, in practice, it is tremendously difficult to get agreement on such actions. There are too many trouble spots in the world, and it would always be the same powers shouldering the largest part of the response. Now that the cold war is (momentarily?) over, the role of international policeman has become much less attractive than it appeared to be in the past. Thus, Somalia will be left to its own devices after March 31, 1995⁶, and in Bosnia the victims of aggression are denied military assistance. Not even the openly declared war against the civilian population there meets with any response from the international community, with the most brutal violations of the rules of warfare occurring on a daily basis.

There is no escaping the conclusion that establishing an international criminal tribunal mandated to try persons responsible for violations of international humanitarian law is the second-best solution. Given the current political context, it seems clear that, at least in the case of the former Yugoslavia, there exists neither the might nor the intention to catch the "big fish", those whose inflammatory propaganda set in motion the abhorrent process of "ethnic cleansing". Indeed, since the international community repeats its standard refrain that a peace settlement can be reached only by negotiation, it needs those in power at the conference table. Even if Richard Goldstone, chief prosecutor of both tribunals, wishes in the case of the former Yugoslavia to try the key figures in planning and organizing one of the most glaring attacks on human rights standards and rules of humanitarian law since the second world war, his hands will be tied. He can hope no more than to get hold of some criminal individuals of a lower command level arrested fortuitously in neighbouring states, who as asylum seekers had hoped not to be identified. This is not to say that those individuals are not to be blamed: the actions with which some of them are being charged constitute, more often than not, horrendous stories of human debasement⁷. But the overall picture stands in stark contrast to what happened at Nuremberg and Tokyo. Before those two tribunals, the major war criminals - the intellectual authors of untold suffering - were held accountable for their deeds. In all probability, as David Forsythe points out in his contribution to this issue of Criminal Law Forum, the International Tribunal for the Former Yugoslavia will try only persons arrested at random, who are not among the group that planned the territorial restructuring of Bosnia and Croatia by means of murder, torture, rape, and plunder.

One should not lose sight of this whole political context in trying to assess the International Tribunal for the Former Yugoslavia, as well as the International Tribunal for Rwanda, for which the prospects are even dimmer. As a lawyer, one may - and should - hail the establishment of these two international tribunals as a decisive step forward in the slow process of building institutions for the maintenance of a minimum level of world order that one may rightly call "civilized". However, even a lawyer is entitled to ask searching questions and should attempt to determine whether the international community does in fact support the institutions it has brought into being by taking the requisite steps. From this perspective, financing is the most delicate and revealing issue. In his article, Julian Schutte provides a telling account of past difficulties in this regard. It has been reported that the Fifth Committee of the General Assembly has been extremely reluctant in appropriating the necessary funds for investigative purposes⁸. This is a devastating signal. Inadequate funding may condemn the two tribunals to a standstill. Indeed, it is no more than a truism to say that prevention would be infinitely less expensive than cost-intensive trials, which may become a playground for prominent lawyers versed in the latest refinements of U.S. criminal procedure.

The contributors to this collection rightly agree that chapter VII of the Charter provides a sufficient legal basis for the establishment of the two tribunals. To maintain and restore international peace and security means not only meeting the direct challenge of aggression but also taking measures for the definitive settlement of an armed conflict. There is no denying that somewhere a line must be drawn. The Security Council obviously cannot, under chapter VII, address the root causes of internal survey like poverty, lack of education, and unjust distribution of land. But this organ must be able to deal with the direct consequences of events that qualify as a threat to, or a breach of, the peace under article 39 of the UN Charter. This conclusion appears all the more justified since the establishment of the two tribunals is intended not only to punish the responsible authors of crimes but also to deter future violations - an effect, unfortunately, that this undertaking may fail to have.

One specific feature of the two tribunals' statutes is sometimes misunderstood⁹. In articles 2-5 of the Statute of the International Tribunal for the Former Yugoslavia, and similarly in articles 2-4 of the Statute of the International Tribunal for Rwanda, the Security Council has not set forth substantive law. The purpose of these provisions is simply to determine and circumscribe the jurisdiction of each court. Any attempt at creating new substantive penal would have run counter to the basic principle of nullum crimen, nulla poena sine lege. I fully agree with Kenneth Gallant and Roman Kolodkin in this respect. One has to admit, however, that a formulation in writing of rules that supposedly preexist as customary norms may cross the thin line between codification and creation of new law. This difficulty may affect in particular article 5 of the Statute of the International tribunal for the Former Yugoslavia and article 3 of the Statute of the International Tribunal for Rwanda. It is by no means certain that before 1993 crimes against humanity had acquired the status of customary law with as large a scope as is attributed to them by those articles. It will be one of the main tasks of the two tribunals to verify whether all the offenses over which they have competence qualify as offenses under customary law. It should be noted, in this connection, that the International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind offers a widely divergent categorization of crimes against humanity, labeling them systematic or mass violations of human rights¹⁰. Given this substantial difference in treatment, it might be argued that in some borderline cases the international and customary law character of the relevant offense has not been sufficiently established.

However, the observation just made must be refined in one important respect. While the statutes do not set out to create new criminal offenses but instead purport to reference a set of crimes already prohibited under customary international law, both instruments contain rules that one normally encounters in the general part of a domestic penal code. In particular, article 7 of the Statute of the International Tribunal for the Former Yugoslavia and article 6 of the Statute of the International Tribunal for Rwanda define who may be individually criminally responsible as author or accomplice of any crimes under the jurisdiction of the two tribunals. This determination, however, has the character of an auxiliary legal rule and does not infringe the basic requirement of nullum crimen, nulla poena sine lege.

It will not be easy to prove the commission of crimes falling within competence of the International tribunal for the Former Yugoslavia. Even more difficult will be the task of the International Tribunal for Rwanda. Back in 1945, ample factual evidence was available. The victorious Allied powers had access to all the archives of Germany and Japan, where much of the illegal activities of the two regimes had been carefully documented. The International tribunal for the Former Yugoslavia, in contrast, is constrained to act from outside the territory of the former Yugoslavia. Its main source of evidence will therefore be testimony by witnesses. Thus, over and beyond the problem of arresting any intellectual authors, there is a tremendous risk that acts of planning, organizing, and incitement may not be capable of being proven at the level of proof required for conviction. In any event, testimonial evidence is the most expensive and time-consuming category of evidence. In a given case, it may be necessary to hear dozens of witnesses. If the scarcity of funding of the International tribunal for the Former Yugoslavia does not allow witnesses to be brought to the Hague or on-site investigations to be carried out, as indicated by Cherif Bassiouni, the work of this court seems to confirm these apprehensions. As of the end of 1994 only one indictment had been issued. In view of the large number of the crimes committed, this single case would seem to be almost irrelevant¹¹.

Apart from the concept of international crimes, which connotes individual penal responsibility directly by virtue of international law and irrespective of the rules of a territorially competent legislature, a striking legal feature of this initiative is the legal precedence attributed to the International Tribunal for the Former Yugoslavia under Security Council Resolution 827.

On the face of it, the Tribunal has been endowed with powers akin to those of the Security Council itself, powers susceptible of producing binding legal effects for states. The most conspicuous expression of this precedence is found in articles 9 and 29 of the Tribunal's Statute. Under article 9(2), the International Tribunal for the Former Yugoslavia may at any stage of the procedure "request" a national court to defer to its competence. It emerges from the relevant report by the UN Secretary-General that this is not a simple request that a state would be free either to grant or to deny, but rather a binding order with which every state is duty-bound to comply¹². The report unequivocally asserts the "primacy" of the Tribunal, leaving only details of implementation to the Rules of Procedure and Evidence¹³. Under article 29(2), states "shall", in particular, "comply without undue delay with any request for assistance or an order issued by a Trial Chamber". Here, the wording is crystal clear. National agencies are placed under the authority of the International Tribunal for the Former Yugoslavia, which may, not unlike the Security General, issue orders or injuctions that must be heeded fully, leaving no discretion to governments.

Yet, the Tribunal's powers transcend even the traditional pattern of linkage between the UN Security Council and member states. To date, the Security Council has mostly addressed its orders to states as such. A typical example of the technique ordinarily followed is provided by the numerous embargo resolutions, which enjoin all states: to interrupt trade and other commercial intercourse with a targeted state. These resolutions do not directly affect the legal position of private individuals but require measures of national implementation to become applicable to the enterprises whose commercial activities they are designed to bring to a halt. In the case of the International Tribunal for the Former Yugoslavia, this two-stage process cannot be implemented. Once a case is pending, the Tribunal deals directly with the individual concerned. This relationship is not deferred until the last stage of a proceeding, when the accused has been transferred to the Hague. A direct legal relationship between the International tribunal and a person under investigation comes into being as soon as an indictment has been confirmed by the competent trial chamber under article 19 of the Statute. Upon confirmation, a judge of the Tribunal may issue a warrant of arrest. Such a warrant constitutes, according to the perception upon which the Statute is predicated, a legal act that is directly enforceable vis-a-vis the accused. Under rule 55 of the Rules of Procedure and Evidence, the international warrant shall be executed as it stands; it does not require further action by a national authority to transform it into a legally binding decision. Thus, the international warrant itself constitutes a valid mandate to effect an arrest, which is supposed to satisfy all requirements of correct legal procedure in conformity with the applicable rules of habeas corpus.

Such a direct legal effect on private citizens is a feature that until now was encountered only in European Community Law. Under the Statute and the Rules of Procedure and Evidence, this device has been made to apply within a UN context. For many states it will not be easy to adapt their legal thinking to this new situation. Legal assistance and extradition are both age-old institutions based on mutual cooperation between states. Notwithstanding the legal obligations deriving from the many treaties in this field, states still make sovereign determinations on whether to grant an extradition request. Now, not only has political discretion disappeared, but, equally novel, an international institution - the International Tribunal for the Former Yugoslavia - has been empowered to issue orders that have a direct effect on persons. In this scenario, states are confined to translating such orders into factual reality as agents of execution, without having any additional role of review in which they might exercise discretion. Since all domestic legislation is based on the old concepts, a lot will have to be done by way of adjusting to the new legal position, as Pavel Dolenc notes in relation to Slovenia. One thing is clear, however. States are not entitled to object to a surrender sought by the Tribunal by claiming that their national rules do not address or permit the "surrender" or "transfer" of a person to an international tribunal and that, therefore, they are unable to heed such a request¹⁴. Of course, what is true for a small state is true also for a big power like Russia or the United States, at least in terms of the express language of the Statute and the Rules of Procedure and Evidence.

The fate of the International tribunal for the Former Yugoslavia is still open. Should it founder, without being able to conclude proceedings in even a single case, a most unfortunate precedent may be set. In particular, it would become almost impossible, and in any event useless, to pursue further the efforts completed in 1994 by the International Law Commission toward creating a treaty-based international criminal court¹⁵. Failure of the international community to make the International Tribunal for the Former Yugoslavia a workable international institution would also retroactively shed a grey light of doubt on the Nuremberg and Tokyo trials. A disservice to the cause of law and justice would also be done if it were decided to accept a general amnesty - an idea that obviously is most attractive to those who see themselves already as the winners of the war in Bosnia-Herzegovina. The Inter-American Commission on Human Rights has stated that with regard to grave violations of human rights an amnesty cannot be validly declared¹⁶. It is to be hoped that this pronouncement will at all times be remembered at the United Nations.

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