INTERNATIONAL CRIMINAL LAW DEVELOPMENTS IN THE CASE LAW OF THE ICTY International Humanitarian Law Series VOLUME  Editors-in-Chief Professor Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge (cid:617)eodor Meron Captain J. Ashley Roach Professor Jiri Toman (cid:617)e International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conlict. (cid:617)e series explores substantive issues of International Humanitarian Law including, • protection for victims of armed conlict and regulation of the means and methods of warfare • questions of application of the various legal regimes for the conduct of armed conlict • issues relating to the implementation of International Humanitarian Law obligations • national and international approaches to the enforcement of the law and • the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law. International Criminal Law Developments in the Case Law of the ICTY Gideon Boas & William A. Schabas, editors MARTINUS NIJHOFF PUBLISHERS (cid:285)(cid:278)(cid:282)(cid:277)(cid:278)(cid:287)/(cid:275)(cid:288)(cid:292)(cid:293)(cid:288)(cid:287) Published by: Brill Academic Publishers P.O. Box 9000, 2300 PA Leiden, (cid:617)e Netherlands [email protected] http://www.brill.nl Sold and distributed by: Turpin Distribution Services Limited Blackhorse Road Letchworth Herts SG6 1HN United Kingdom A C.I.P. Catalogue record for this book is available from the Library of Congress Printed on acid-free paper Cover photograph: Audio-Visual ICTY ISBN 90-411-1987-6 © 2003 Koninklijke Brill NV, Leiden, (cid:617)e Netherlands Typeset by jules guldenmund layout & text, (cid:617)e Hague Koninklijke Brill NV incorporates the imprint Martinus Nijho(cid:266) Publishers All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to (cid:617)e Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in (cid:617)e Netherlands Table of Contents Foreword by Judge Richard May vii Preface ix Abbreviations xiii Table of Cases xv . A Code of Evidence and Procedure for International Criminal Law? (cid:617)e Rules of the ICTY  Gideon Boas . (cid:617)e Defence  Michael Bohlander . (cid:617)e Role and Status of the Victim  Pascale Chiflet . Accountability for Arrests: (cid:617)e Relationship between the ICTY and NATO’s NAC and SFOR  (cid:498)omas Henquet . An Emerging Gender Perspective on International Crimes  Michelle Jarvis . Deining Human Rights in the Arena of International Humanitarian Law: Human Rights in the Jurisprudence of the ICTY  Gabrielle McIntyre . Crimes of the Commander: Superior Responsibility under Article () of the ICTY Statute  Daryl A. Mundis vi Table of Contents . Decisions of National Courts as Sources of International Law: An Analysis of the Practice of the ICTY  André Nollkaemper Index  vi Table of Contents Foreword When the history of the ICTY comes to be written, its contribution to the jurisprudence of international criminal law will be seen as among its signii- cant achievements. Like the builders of old, the pioneers of the Tribunal found a quarry and turned it into the makings of a temple. However, at the time of writing, the foundations are just being built. (cid:617)ere has been important work in many disparate ields. Much has been done to deine the substantive law, for instance, the elements of the crimes and the types of responsibility. A code of procedure and evidence has been established and there have been important decisions on such matters as hearsay and written evidence. (cid:617)e notion of fair trial rights has been developed with decisions such as those on the right of the accused to examine witnesses and equality of arms. A system for the protec- tion of victims and witnesses has been set up, a development which may be said to be unique and from which it is to be hoped others can learn. But, there is no point in building a temple if nobody sees it or uses it. While sterling work has been done in some quarters to collect, publish and publicise the decisions of the Tribunal, and a certain amount of academic commentary has been engendered, the fact remains that too many decisions go unheeded. If they are given by Trial Chambers, and in some cases by the Appeals Chamber, they may go into the iles and not be properly reported. (cid:617)e fate of oral deci- sions is even more summary. (cid:617)ere is thus, as yet, no comprehensive collection of these decisions and no easily accessible way to get at them. It is, therefore, particularly welcome that this analysis of developments in the case law of the Tribunal is being published now. It is written by authors with much experience of the work of the Tribunal and can, therefore, be relied upon to shed light on its practice. Analysis of the decisions will help to publi- cise them. Discussion and criticism of the case law will contribute to its devel- opment. In the end, those who worked in the Tribunal will be able to say, as the great architect said of his masterpiece: ‘si monumentum requiris, circumspice’ – if you want a monument, look around. Richard May Judge of the International Criminal Tribunal for the former Yugoslavia Boas & Schabas, eds, International Criminal Law Developments in the Case Law of the ICTY, vii-viii. ©  Kluwer Law International. Printed in the Netherlands This page intentionally left blank Preface (cid:617)e International Criminal Tribunal for the former Yugoslavia (ICTY) is a profoundly important institution in the development of international human- itarian law and criminal law in general. Its arrival heralded a newfound will- ingness of the international community to bring to book perpetrators of war crimes and gross or systematic violations of human rights. (cid:617)ere have been precursors – the International Military Tribunal at Nuremberg is the most celebrated – but the General Assembly’s call for the creation of a permanent court in article VI of the  Genocide Convention stalled during the Cold War. (cid:617)e idea of an international criminal court was only revived in late-. (cid:617)en, as work on the project moved forward, the world was plunged into a brutal conlict that focussed attention on issues of impunity and accountability, and on the contribution that justice might be able to make to peace. In May , the United Nations Security Council established the ICTY. During the course of its relatively brief existence, the ICTY has developed many areas of law, and deined and explained legal norms, sometimes for the irst time. Even if the legal issues with which it was confronted had already been addressed judicially, the precedents were nearly half a century old. While still relevant in many respects, these ancient authorities had to be read in light of evolving international, human rights and criminal law. By , due proc- ess standards were more rigorous, and States were inally willing to punish a broad range of war crimes and crimes against humanity committed in internal conlicts, and even in peacetime. After nearly a decade of operation, the Tribunal is a vigorous and dynamic institution, but nevertheless a temporary one. It is in “middle age”. Measures are being taken to expedite proceedings, all of this with an eye on retirement. And in parallel, the International Criminal Court is inally being established. (cid:617)e new Court will owe a great debt to the ICTY, which has pioneered the prosecution of international crimes in so many ways. As the title suggests, the aim of this book is to discuss some of the international criminal law developments that have taken place in the practice and procedure of the Tribunal. It makes no claim to an exhaustive treatment of Boas & Schabas, eds, International Criminal Law Developments in the Case Law of the ICTY, ix-xi. ©  Koninklijke Brill NV. Printed in the Netherlands