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By Visoot Tuvayanond*


The International Criminal Justice is a relatively new concept that emerged into the international law with a lot of fanfare at the end of the World War II with the war crimes trials by the Nuremberg and Tokyo War Crimes Tribunals in consequence whereof the United Nations Organization has integrated in its program of actions in the UN Charter the spirit of international cooperation to study "the desirability and possibility of establishing an international judicial organ"(1), but the flamboyance of the entree of this new concept had simmered down on account of its conflicts with the State sovereignty, that obstructed the creation of such a body for over 40 years. The notion of the International Criminal Justice was subsequently rekindled by the outrage of the World community over the flagrant war-time human rights violations in the former Yugoslavia, which threatened the world peace, that led to the institutionalization of Criminal Justice on international plane by the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC) and several ad hoc international criminal tribunals, which is the main theme of this present article.

In the past when the territorial sovereignty was sacrosanct and inalienable, and the notion of crimes against Humanity was inexistent, State immunity and territorial sovereignty were absolute, head of State and leadership of a country were totally untouchable and could thus within the confine of their territories commit even the most atrocious crimes against their own people. A notorious Roman Emperor, Nero Claudius Caesar, could thus have half of the population of Rome trapped behind the city gates wantonly burnt alive in 64 with impunity and Joseph Stalin of the ex-USSR could likewise cruelly perpetrate the carnage of 10 million peasants in the Ukraine by forced hard labor, starvation, and summary executions merely for not having concurred and complied with his plan for the collectivization of agriculture.

Nowadays, as rightly stated Professor Jaturon Thirawatz(2) in his frequently cited article: "The Application of International Law in Thailand"(3), which he presented at the International Symposium on "The Development of Legal Systems in Asia: Experiences of Japan and Thailand"(4), "International law no longer concerns only States and international organizations, which used to be its sole and exclusive traditional subjects but has become much more involved now than ever before in the everyday life of the Government agencies and even of individuals which are the grass root of the international community itself"(5). Since in the contemporary era the sacrosanct principles of territorial sovereignty and State immunity are no longer absolute, the routine role of international law has indeed by far expanded into the territory of sovereign States to monitor the protection of the environment, endangered species, animal habitats, Human Rights, women and children, and also to oversee the exploitation of the natural resources, such as halieutic resources and underground water, as well as the observance of humanitarian law and the conducts of individuals and see to it that the perpetrators of crimes against Humanity(6) are brought to justice, when and where it is feasible to do so(7).

Ever since the war crimes trials by the Tokyo and Nuremberg Tribunals brought an international court together to focus on the Nazi's aggression and genocide of the Jewish people during World War II, the formulation of a permanent international criminal court has been advocated by many. The Nuremberg war crimes tribunal has set the precedent that leaders of nation -states could be held individually accountable to the World Community for violations of the internationally recognized rules governing their conduct as military commanders. The idea that leaders of sovereign nations could be held individually accountable to the International Community for a wanton and reckless crime of aggression in despise and disregard of Human Rights is indeed a very attractive proposition to the World public opinion. It has, in effect, given rise to the subsequent creations of several ad hoc as well as permanent international criminal courts, both for crimes against Humanity and war crimes(8).

This article will discuss what legal basis existed in the establishment of an international criminal court to try the perpetrators of alleged crimes against Humanity in the former Yugoslavia, and evaluate how effective it has been. It will also assess whether the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) was conducive or prejudicial to the formulation of the permanent International Criminal Court (ICC), and will endeavor to make recommendations as to how such tribunals might be more effective in their missions. The shortcomings of the ICC in its present form will also be analyzed and commented. The prospective of Thailand's ratifying the Rome Treaty of 1998(9) will be dealt with in the epilogue.


As previously stated at the outset, when the United Nations Charter was drafted after the termination of the World War II, a spirit of international cooperation was embodied in their resolution "to study the desirability and possibility of establishing an international judicial organ". Although State sovereignty was an obstacle or a barrier to the creation of such a body for over 40 years, the international resolve to establish such a tribunal coupled with the outrage of the international public opinion over the flagrant gross war-time human rights violations in the former Yugoslavia that threatened the world peace led to the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) by the United Nations on May 25th, 1993. Based in The Hague, The Netherlands, the ICTY was given four missions:

1. Bring to justice those who are responsible for violations of international humanitarian law,
2. Render aid to their victims,
3. Deter any further crimes, and
4. To contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia(10).

To underscore the importance of the international law the ICTY was vested with sweeping powers. Although the ICTY was given concurrent jurisdiction with that of the former Yugoslavia's national courts, it was also provided for the authority to pre-empt national proceedings at any time "in the interest of international justice"(11).

The ICTY is composed of eleven judges from different countries. The format of the proceedings are a blend of civil and common-law traditions, thus combining adversarial and inquisitorial procedures. The judges are elected for four year terms, and alternate between presiding in either trial or appellate proceedings"(12). While the ICTY has authority over only natural persons, it may prosecute individuals for grave breaches of the jus in bello enshrined in the 1949 Geneva Conventions, genocide, and Crimes against Humanity(13). The maximum sentence the Tribunal is empowered to impose is limited to only a life imprisonment.

To ensure that the investigation, indictment and prosecution of individuals would be as free from political influence as possible, the "Office of the Prosecutor" was established. The person holding this office is appointed for a four year term, and has been occupied since September 1999 by Carla del Ponte from Switzerland(14), a strong, no-nonsense prosecutor who has proven to be quite controversial in her decisions.

Most importantly, the ICTY is powerless by itself, so its success is entirely contingent upon the cooperation of the international community. Countries must not only cooperate in the investigative and trial processes, but must also arrest and extradite those within their jurisdiction that are indicted by the Court.

As a measure of the international support and cooperation that has existed for the ICTY, its level of funding, 84% of which is supplied by the UN, has steadily increased from $276,000 in 1993 to over $96 million in 2001(15) and although the Court appeared poised and capable of exercising its mandate, eight years have elapsed after its formation before its first real opportunity to do so presented itself, prior to which the credibility
of the Court had been in serious question.

Despite Yugoslavia, Bosnia and Croatia having ratified the Dayton Peace Agreement of 1994 in which they agreed to fully cooperate with the arrest and extradition of individuals indicted by the Tribunal, that cooperation had not been forthcoming. Two high-ranking Croat officials, Dario Kordic and Ivica Rajic, who were indicted by the ICTY had each been reportedly living in government provided residences with impunity. In the end of 1997, two indicted Bosnian Serbs were working as leading public offrcials(16). Besides, even to date, another notorious Bosnian Serb leader, Radovan Karadzic, who has been on the run for nearly 8 years is still at large and lauded by a large number of Serbs as national hero. As the result, the ICTY was largely viewed as a toothless tiger or just paper tiger.

The World view of the ICTY was about to undergo a radical change with events that were transpiring in the former Yugoslavia. On May 27, 1998, following the military purge of nearly one-half million Kosovo Albanians from their homeland, wholesale NATO air strikes, and the discoveries of massive graves, the ICTY issued criminal indictments against Slobodan Milosevic (the then-Serbian President and Supreme Commander of the Republic of Yugoslavia's armed forces) and his four military commanding officers, charging all of them with "crimes against humanity and violations of the laws and customs of war"(17). Following the contested election of Vojislav Kostunica as successor President, Milosevic's ouster from office, and his eventual arrest and extradition, the stage was then set for ICTY's most important prosecutorial opportunity.

That opportunity arrived on February 12th, 2002, with the opening of the trial of Slobodan Milosevic, former Yugoslavian President and indicted war criminal. The extradition of Milosevic was of particular importance because it was the first time that a country had ever voluntarily transferred a former head of State to an international criminal justice tribunal. This international cooperation gave the ICTY what it so desperately needed for the fulfillment of its mission.

If the tribunal succeeded in convicting Milosevic of the crimes with which he was charged, it would echo the holdings of Nuremberg Tribunal, and the U.N. proclamation that accompanied the establishment of the ICTY that: "Once it is clear that the international community will no longer tolerate such monstrous acts without assigning responsibility and meting out appropriate punishment - to head of State and commanding officers, it is hoped that those who would incite genocide [and other crimes against humanity] will no longer find willing helpers"(18). The successful prosecution of the alleged crimes would also further the likelihood that an International Criminal Court (ICC) could and would be established

However, at the outset, Prosecutor Carla del Ponte saw many formidable obstacles that stood in the way of a successful prosecution. Firstly and most importantly, there was no hard evidence of Milosevic's alleged crimes, the crimes with which he was charged were allegedly carried out pursuant to his orders but no audio or visual records existed to offer as a proof. Nor were there any written records, as Milosevic never signed his orders(19). The prosecution, therefore, had to rely on witness testimony - and the only witnesses that could possibly tie Milosevic to his crimes were missing, and if produced, fearing retribution, would likely be unwilling to testify against him(20). Additionally, the ICTY's indictments against Milosevic were initially limited only to the 1998 - 1999 purge of Kosovo Albanians, as his alleged crimes ten years previously in Bosnia and Croatia were believed to be too far removed in time to likely provide convictions.

The ICTY's handling of the trial, coupled with Milosevic's performance as his own lawyer further undermined world opinion. This had the effect of possibly eroding crucial international support and cooperation with its mission, and possibly affecting the formation of an I.C.C. Not only had the neutrality of the Tribunal been brought into question by Prosecutor Carla del Ponte's refusal to probe into allegations that NATO perpetrated crimes against civilians, but President Kostunica himself expressed reservations with the Court in stating that "much of the evidence is true but much is also superficial, truncated and manipulated. It is being politicized and there is an element of hypocrisy”(21).

Kostunica's comments regarding the politicization are supported by the partisan means by which the ICTY is partially funded. Under Article 32 of its governing statute, to insure a lack of bias, the expenses necessary to operate the ICTY are to be paid entirely by the U.N.(22) However, "substantial funds" have been contributed disproportionately by individual nations, as well as private organizations. The United States has not only provided tens of millions of dollars in additional funding, but substantial equipment and personnel as well. Additional money from the United States has come from the Rockefeller Foundation, the U.S Institute for Peace, and the well-known financier George Soros' private Open Society Foundation. Additionally, prior to Milosevic's arrest, the Clinton Administration offered a $5 million reward for his capture(23).

Part  2

* Ex-Ambassador, full-time lecturer of International Law and International Trade Law at the University of the Thai Chamber of Commerce and the School of Graduate Studies (International Program), and guest lecturer of international law at Chulalongkorn, Thammasat, Ramkamhaeng and Sukhothai Thammathirat Universities.
(1) Miller, William, Prosecution of the International Court In Yugoslavia, 22 Loy. L.A. Int'l & Comp. L. Rev. 553, August 2000.
(2) Professor of International Law, Faculty of Law, Thammasat University, Bangkok, Thailand.
Cf. Prof. Dr. Jaturon Thirawat, "The Application of International Law in Thailand" in The Proceedings of the Symposium on "The Development of Legal Systems in Asia: Experiences of Japan and Thailand", organized by the Faculties of Law of Kyushu University and Thammasat University on the 6th - 7`h of November 1997, p. 240.
(4) Organized by the Faculties of Law of Kyushu University and Thammasat University on the 6th-7th of November 1997.
(5) Cf. page 243 of the Proceedings of the Symposium, op. cit.
(6) Such as the crime of genocide, torture, drug trafficking, slave trading, piracy, trafficking of women and children etc.
(7) Like in the cases of Slobodan Milosevic and his four military commanding officers who were responsible for the crime of genocide in Kosovo, etc.
(8) Inter alia, the International Criminal Tribunal for Rwanda, Sierra Leone UN War Crime Tribunal, War Crime Tribunal for Congo, International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Court (ICC), and perhaps also a War Crime Tribunal for the trial of Saddam Hussein in the near future, etc
(9) Which is the Statute of the International Criminal Court (ICC).
(10) ICTY At A Glance, June 18, 2002, available at
(12) American Society for International Law Rules of Evidence and Procedure, R. 27, 33 I.L.M. 484, 505 (1994).
(13) Id.
(14) supra, note #2.
(15) supra, note #2.
(16) Samary, Catherine, The Case Against the Hague Court, Le Monde Diplomatique, April 2000, available at http://www.mondediplo/2002/04/07/hague
(17) Orentichler, Diane, Swapping Amnesty for Peace and the Duty to Prosecute Human Rights Crimes, 3 ILSA J Int'l & Comp L 713
(18) supra, note #1.
(19) Strijbosch, Margreet, Radio Netherlands, A Milestone for the Hague Tribunal, June 29, 2001, available at
(20) It is noteworthy, however, that, to show his defiance and contempt for the ICTY, Milosevic himself made a self-incriminating declaration without remorse before the Tribunal in one hearing that what he did was done for the good of his country and that he would do it again if he had a chance to.
(21) supra, note #8.
(22) Chame, Leon, How to Obtain Justice, December 12, 1999. available at
(23) Id.

Originally Published in The Thammasat Law Journal (March 2004)

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