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Legal Reforms

Admissibility of ICTY Evidence

The use of evidence held by the ICTY Office of the Prosecutor can contribute to the effectiveness of war crimes trials in national courts in the region.  By admitting statements given to the ICTY during proceedings, national courts could avoid direct examination of witnesses who have already testified in judicial proceedings about the same events.  This would save resources and time in that the witness would not have to present anew his or her direct examination; should the defense choose not to cross-examine the witness, the witness might not need to appear at all.  The use of ICTY evidence would also allow judges and prosecutors in national courts to benefit from the investigative expertise and resources of the ICTY. 

With the exception of Croatia, it is unclear at present whether witness statements made in ICTY proceedings and investigations are admissible in proceedings before national courts in the region.  Lawmakers and courts in Serbia have yet to decide on admissibility.  In Bosnia, the court in the Ilijasevic trial refused to admit into evidence videotaped interviews which the ICTY conducted with an eyewitness to the Stupni Do massacre.⁸⁹  The court held the testimony inadmissible in part because “the evidence was not obtained pursuant to the provisions of the law on criminal procedure in Federation Bosnia and Herzegovina.”  Sarajevo Cantonal Court judges with considerable experience in war crimes trials, interviewed by Human Rights Watch in April 2004, held opposing views on the admissibility of evidence under the then-existing legislation.⁹⁰  In July 2004, the government of Bosnia and Herzegovina adopted a draft law to permit the use of testimony taken before the ICTY in Bosnian court proceedings.  The trial judge has discretion to permit applications by the defense to cross-examine witnesses.⁹¹  Where the judge declines a request, the subsequent judgment cannot be founded solely or primarily on the statement obtained from the ICTY.⁹²  At the time of this writing, the legislation has been adopted by one of two chambers in the Bosnian parliament, and the other chamber was expected to consider it in the near future.

Croatia has taken a step toward the use of evidence collected by the ICTY in domestic proceedings with the enactment of legislation in October 2003.  The law states that such evidence can be used “provided that [it] was presented in a manner provided for by the [ICTY] Statute and the Rules of Procedure and Evidence, and that it can be used before that court.”  The law allows the domestic court significant leeway in assessing the reliability of such evidence.⁹³  The law has yet to be used in any case.

The Doctrine of Command Responsibility

There is a lingering question as to whether the doctrine of command responsibility will be applied in national war crimes trials in the former Yugoslavia.  The inability of national courts to prosecute cases arising from command responsibility would effectively limit those courts to cases where the defendant was accused of directly carrying out or ordering the prohibited acts.  Such a limitation could effectively eviscerate the cases against many commanders and other high-level suspects who failed in their duty to prevent and punish thecommission of war crimes, and create a window for widespread impunity.   

Serbian criminal laws do not provide specifically for command responsibility.  While the Constitution of Serbia and Montenegro provides that ratified international agreements and treaties (in this case Additional Protocol I to the 1949 Geneva Conventions) are directly applicable,⁹⁴ it also provides that criminal proceedings may only be initiated for crimes regulated by law and that crimes may only be punished in accordance with the law.⁹⁵  There is a near-consensus among Serbian lawyers and politicians that, while command responsibility could be enacted into domestic criminal law in the future, it could not apply to past crimes due to the constitutional prohibition against retroactivity. 

Legal experts in Serbia have argued, however, that persons who bear command responsibility might be prosecuted for failing to report crimes,⁹⁶ incitement (by omission) to commit a crime,⁹⁷ or aiding and abetting by omission.⁹⁸  However, in all these cases, for conduct to be punishable the person must have acted with guilty intent, while command responsibility in international law also includes situations in which the superior acted with recklessness (he “had reason to know” that the subordinate was about to commit such acts or had done so.)⁹⁹  Serbian legislation does not cover the form of command responsibility where there is no intent to allow the commission of war crimes.

An identical limitation exists in the laws that were in force in Bosnia and Herzegovina, as well as in Croatia, during the armed conflict.  Current plans by Serbia and Croatia to prepare amendments to their criminal codes to allow for command responsibility would have no impact on crimes committed before the measures become law.

It is nonetheless arguable that courts in the former Yugoslavia, including special war crimes chambers, are able to apply the command responsibility doctrine in war crimes cases emerging from the conflict in the former Yugoslavia, without violating the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). 

War crimes chambers should apply the international law valid on the territory of the former Yugoslavia at the time when the war crimes took place.  According to the constitutions that were in force in Croatia and the Federal Republic of Yugoslavia (now Serbia and Montenegro) at the time of the armed conflicts, ratified international treaties formed an integral part of domestic legislation.

One such treaty was Protocol I Additional to the Geneva Conventions, which had been ratified in the pre-war Yugoslav federation and was accepted by the successor states as binding upon them.  The Protocol, which provides for command responsibility,¹⁰⁰ was therefore part of the applicable law in Croatia, as well as in Serbia and Montenegro.  In addition, the constitution of the then-Federal Republic of Yugoslavia provided for the applicability of “generally accepted rules of international law.”¹⁰¹  

Command responsibility had already become a generally accepted rule of international law (customary international law) at the outbreak of violence in the former Yugoslavia.  In the case Prosecutor v. Hadzihasanovic et al., the ICTY Appeals Chamber held that, at the time the alleged crimes in the former Yugoslavia were committed, customary international law included the concept of command responsibility in relation to war crimes committed in the course of both international and internal armed conflict.¹⁰²

Protocol I, however, does not prescribe the penalties for grave breaches of its provisions, and the customary international law does not prescribe the penalties either.  Even if a consensus existed that the protocol and the customary rule of command responsibility were part of domestic law, an argument could be made that the law did not prescribe a penalty for command responsibility.

In the ultimate analysis, however, it would appear that domestic trials for command responsibility would not violate the principle of legality.  The object and purpose of that principle is “to ensure that no one should be subjected to arbitrary prosecution, conviction or punishment.”¹⁰³  The prosecution and punishment for command responsibility would not be “arbitrary.”  For example, even the Yugoslav Army manual from 1988 contained provisions on command responsibility similar to those from Protocol I.¹⁰⁴  

Under key international human rights instruments—in particular, the International Covenant on Civil and Political Rights and the European Convention on Human Rights—it is consistent with the principle of legality to have “the trial and punishment … for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations,”¹⁰⁵ even though the act or omission did not constitute a criminal offence under national law.¹⁰⁶ 

At the Nuremberg and Tokyo tribunals, war criminals could not rely on the argument that their acts had been lawful under Nazi legislation or under the war legislation of Japan.  Similarly, those suspected of war crimes in the former Yugoslavia could not plausibly claim that command responsibility was not punishable under the laws of Serbia, Croatia, or Bosnia and Herzegovina.  Sentences passed by courts in Bosnia, Croatia, and Serbia in cases involving command responsibility should be subject to no more than the maximum terms of imprisonment that could have been imposed under the legislation in force for the substantive crimes at issue when the crimes were committed.