Public statements that follow by ICTY judges Claude Jorda and Antonio Cassese unequivocally expose the political character of the International Criminal Tribunal for the Former Yugoslavia. Neither political sophistication nor legal training are required in order to recognize the professionally problematic character of their remarks. Be it noted that neither of the potential defendants referred to by Jorda and Cassese had been convicted of anything at the time these remarks were made and, consequently, neither had the opportunity to address in open court the charges that were laid against them. It is on the basis of those hypothetical and unaddressed charges that their potential participation in the political process was being obstructed by ICTY, with the unreserved approval of its leading judicial lights. Both Jorda and Cassese served as presidents of ICTY at various stages of its existence.
ICTY judge Claude Jorda
TITLE: Au Nom de l’Humanité
SUBTITLE: Le Tribunal de la Haye
AUTHOR: Edina Ajrulovski (http://www.simpleproduction.be/en/movies/history/au-nom-de-l-humanite-le-tribunal-de-la-haye)
DATE: 22.3.2000 (Shown)
PUBLISHER: Arte (Germany)
CONTENTS: Claude Jorda (Judge)
It is not true that this tribunal only prosecutes second and third rate criminals, as some allege. The penal policy of the prosecution is bringing [the role of] ever higher commanding positions to light and investigating ever higher circles. For example the case against Misters Karadzic and Mladic. They were indicted by this tribunal.
When one says that this tribunal cannot bring sanctions, this is true, if it is referring to convictions. These two people could not be convicted because they were never arrested. But already simply the indictment against Misters Karadzic and Mladic played an important role in Dayton. The indictment had prohibited Misters Karadzic and Mladic from coming to Dayton, Paris or London. And finally they were even definitively forced out of political life in their own countries. This is also a contribution of an international justice.
Perhaps we cannot function as one would expect from a national justice system, as far as the investigation, prosecution, conviction, incarceration and penitence is concerned. It is true that we do not have the whole array of penalties at our disposal. But still we have a deterrent effect. And above all we can point, at any moment, at a universal crime committed by a suspected criminal.
ICTY judge Antonio Cassese
KARADZIC A PARIAH, SAYS WAR CRIMES TRIBUNAL CHIEF
ANP English News Bulletin, July 27, 1995
Copyright 1995 Stichting Algemeen Nederlands Persbureau
The president of the UN war crimes tribunal that has indicted Radovan Karadzic said on Wednesday he believed the move would make it impossible for the West to talk peace with the Bosnian Serb leader.
“The decision…marks a fundamental step,” Antonio Cassese, an Italian, told the newspaper L’Unita. “I challenge anyone to sit down at the negotiating table with someone accused of genocide,” he said. The stance, expressed repeatedly throughout the full-page interview, put Cassese at odds with the United Nations. It said on Tuesday that it would continue to talk to all parties in the former Yugoslavia in the search for peace. “It’s a dilemma, I think, that we’ve been thinking about for some time,” U.N. spokesman Ahmad Fawzi told reporters. “When you are in a war situation you negotiate with all the parties in that field of operation,” he said.
The Hague-based UN criminal tribunal for the former Yugoslavia, created by the Security Council in 1993, is the first body of its kind since the Nuremberg and Tokyo war crimes trials after World War Two.
On Tuesday, it charged Karadzic and his military chief Ratko Mladic with genocide, war crimes and crimes against humanity and issued arrest warrants against them and 22 other Bosnian and Croatian Serbs on a variety of charges.
Cassese, who is president of the tribunal and its appeals chamber, said the indictment had achieved what he called a great political result and would have notable diplomatic consequences.
“The indictment means that these gentlemen will not be able to participate in peace negotiations,” he said. “The politicians may not give a damn, but I’m relying on the pressure of public opinion. I don’t know how it will be possible for Britons, French and Americans not to take account of this.” Cassese acknowledged that Karadzic’s indictment might be an obstacle to a negotiated settlement to the three-year war in Bosnia but added: “What is the sense of a peace treaty which does not respect the rights of people, one which, reached with Karadzic, would mean whitewashing horrendous crimes?” Karadzic and Mladic are accused of ordering the shelling of civilian gatherings, including the May 1995 attack on Tuzla plaza in which 195 people were killed or wounded, and the seizure earlier this summer of 284 U.N. peacekeepers.
They are also charged with persecuting Moslem and Croatian political leaders, deporting thousands of civilians, and for the sniping campaign against civilians in Sarajevo.
Cassese said Karadzic and Mladic would be notified in writing of the indictments but “will refuse to accept them”.
He said the tribunal’s chief prosecutor, Richard Goldstone of South Africa, would be able to hold a special hearing in their absence to present the evidence against them if the arrest warrants had not been executed within two months.
“Witnesses (for the prosecution) will appear before the media of the whole world,” he said.
At the end of that stage, an international arrest warrant would be issued through Interpol and the tribunal could send a note to the U.N. Security Council asking for further sanctions to be adopted, Cassese said.
But Swiss officials said on Wednesday that Switzerland would have to consider granting Bosnian Serb leader Radovan Karadzic and his military chief Ratko Mladic immunity from arrest on war crimes charges if peace talks were held in Geneva.
Government officials said the Swiss cabinet would have to decide first whether detaining the pair would harm Bosnian peace talks or taint Geneva’s reputation as a neutral site for international political meetings.
“It is a very sensitive issue,” said Hansruedi Moser, spokesman for the defence ministry, where the chief military prosecutor would be in charge of the case if Karadzic and Mladic entered the country.
“The fact is that peace negotiations on Bosnia are necessary. For that you need the parties to negotiate,” Moser told Reuters.
Karadzic and Mladic were often in Geneva during Bosnian peace talks mediated by the U.N. and the European Union from the autumn of 1992 until those negotiations were sidelined — largely at US initiative — at the beginning of 1994.
Diplomats say however there is very little chance of the talks returning to Geneva in the foreseeable future.(Reuter)
The abstract of the scholarly piece that follows by Judge Antonio Cassese outlines clearly one of the ingenious strategies employed to rescue the credibility of the International Criminal Tribunal for the Former Yugoslavia. Since ICTY’s inception, under an article of the UN Charter that does not provide for the establishment of such a tribunal, was plainly in violation of international law, making all its subsequent activity illegal, ICTY’s existence cannot be vindicated by resorting to proper legal arguments. Keenly aware of that, Judge Cassese puts forward a spurious novel argument based on the Tribunal’s “performance legitimacy.” The sort of “legitimacy” he had in mind is apparently a function of the political utility of its decisions, as suggested by the disqualification of figures of whom the Tribunal’s Western sponsors disapproved from taking part in peace negotiations, an operation in which Cassese himself had taken the lead. Those interested in the full exposition of Cassese’s thoughts on this subject may order the aricle from the journal which published it.
The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice
- ANTONIO CASSESE
- https://doi.org/10.1017/S0922156512000167
- Published online: 02 May 2012
Abstract
Having identified the differences between the concept of legality and the much more complex concept of legitimacy, the author scrutinizes the legality and the legitimacy of the existing international criminal tribunals. Their legality has been put in doubt only concerning the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL), but the criticisms have been or could be overcome. Assessing the legitimacy of these tribunals is instead a more difficult task. In fact, misgivings have been voiced essentially concerning the legitimacy of the ICTY and the STL, but not the International Criminal Court (ICC) and the other international criminal courts. The legitimacy of the STL in particular deserves to be discussed: even assuming that the STL initially lacked some forms of legitimacy, it could achieve it – or confirm it – through its ‘performance legitimacy’. The author then suggests what the realistic prospects for international criminal justice are. Convinced as he is that it is destined to flourish even more, he tries to identify the paths it is likely to take in future years.
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COPYRIGHT: © Foundation of the Leiden Journal of International Law 2012
References
1 It may suffice to recall J. Locke, The Second Treatise of Civil Government (1690), Chapters VI–IX, XV; M. Weber, Wirtschaft und Gesellschaft: Grundriß der verstehenden Soziologie (1922); see also, in English, Eisenstadt, S. N. (ed.), On Charisma and Institution Building (1994)Google Scholar; C. Schmitt, Legalität und Legitimität (1932) (English translation: Legality and Legitimacy (2004)); R. Dahl, Democracy and Its Critics (1989); D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar(1997); T. Franck, The Power of Legitimacy among Nations (1990).
2 On these notions, see, among others, Cronin, B. and Hurd, I. (eds.), The UN Security Council and the Politics of International Authority (2008)Google Scholar, particularly the paper by W. Sandholtz, ‘Creating Authority by the Council: The International Criminal Tribunals’, 131–53.
3 ‘Legality and Legitimacy in International Order’, in United Nations University, (2008) 5 Policy Brief, 3.
4 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-T, 2 October 1995, paras. 33–36 (hereafter, Tadić).
5 Tadić, supra note 4, para. 47.
6 Misgivings about the conformity of SC Res. 1757 (2007) to the general principles of international law or to the UN Charter were already articulated on 30 May 2007 by some member states of the UN in the Security Council when that resolution was adopted; see, e.g., Indonesia (S/PV.5685, at 3), South Africa (S/PV.5685, at 4), China (S/PV.5685, at 4–5), Russia (S/PV.5685, at 5); see also Peru (S/PV.5685, at 6).
7 See, e.g., Serra, G., ‘Special Tribunal for Lebanon: A Commentary on Its Major Legal Aspects’, (2008) 4 Journal of Philosophy of International Law and Global Politics 1Google Scholar; K. L. Razzouk, ‘The Special Tribunal for Lebanon: Implications for International Law’, (2008) The Global Community: Yearbook of International Law and Jurisprudence 219; M. Odoni, ‘Considerations on the Method Used to Establish the Special Tribunal for Lebanon’, forthcoming, 1; see also the paper by Fassbender, B., ‘Reflections on the International Legality of the Special Tribunal for Lebanon’ (2007) 5 JICJ 1091Google Scholar.
8 Fassbender, supra note 7, at 1091–1105.
9 For a list of such states, see L. Oppenheim and H. Lauterpacht, International Law, Vol. 2 (1955), 581, footnote 3.
10 Tadić, supra note 4, paras. 13–25.
11 See Lelarge, A., ‘Le Tribunal spécial pour le Liban’, (2007) 53 AFDI 397CrossRef | Google Scholar (emphasis in original); Wierda, M., Nassar, H., and Maalouf, L., ‘Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon’, (2007) 5 JICJ 1065Google Scholar.
12 See Wierda, Nassar, and Maalouf, supra note 11, at 1075–81.
13 Plato, Republic, I, 136.
14 See H. Heine’s poem Zu fragmentarisch ist Welt und Leben, part of the ‘Buch der Lieder’, in Die Heimkehr (1823–24): ‘Are our world and life too fragmentary?/I will betake myself to a German Professor./He knows how to set life straight again/He will make an intelligible system out of it;/With his night-caps and night-robe’s rags/He will then plug the gaps in the structure of the world’ (translation mine). (German original: Zu fragmentarisch ist Welt und Leben?/Ich will mich zum deutschen Professor begeben./Der weiß das Leben zusammenzusetzen,/und er macht ein verständlich System daraus;/mit seinen Nachtmützen und Schlafrockfetzen/stopft er die Lücken des Weltenbaus’.)
* Former President, Special Tribunal for Lebanon. In memoriam. This publication is based on a speech given by Judge Cassese at the Erasmus Prize Conference, ‘Justice in Motion: From Nuremberg to The Hague and Beyond’, held at the Peace Palace on 12 November 2009. The editors would like to thank Judge Cassese’s brother, Professor Sabino Cassese, for permission to print this article posthumously. Thanks also go to Professor Luigi Condorelli, who has been so kind as to write the abstract and read the text.